Justice Motswagole, Registrar clash 

SHARE   |   Monday, 23 October 2017   |   By Ditiro Motlhabane
Justice Motswagole Justice Motswagole

Controversy over accommodation in the Administration of Justice, which has destroyed relations between Chief Justice Maruping Dibotelo and several judges of the High Court, has been a recurring problem which reached government enclave as far back as 2013. The suspension of four judges by President Ian Khama in 2015, which was recently settled when the quartet apologised and begged for forgiveness, was sparked by a discovery that they had been paid housing allowances that they were not entitled to. At the height of tensions, which threw the judiciary into a crisis, Dibotelo reported the four judges to the police for investigation over possible criminal conduct relating to the housing allowances. That decision sparked a barrage of lawsuits between Dibotelo, Khama, and Judicial Service Commission (JSC) on one side against the four judges. In the latest revelation The Patriot on Sunday has it on good authority that another high court judge Tshepo Motswagole clashed with the Head of the Judiciary – Registrar and Master of the High Court – over accommodation issues in 2013 when he was transferred from Francistown to Lobatse. The judge even took the matter to Permanent Secretary Ministry of Defence, Justice and Security, which prompted the then Acting Registrar Master of the High Court, Michael Motlhabi to dispatch a savingram dated 22nd August 2013 to his bosses expressing "great regret to learn that after great deliberations and discussions regarding the Hon Judge’s housing situation that he deemed it befitting to take the matter up with you by misrepresenting a number of issues".

Pursuant to the establishment of a corruption court in 2010 to expedite adjudication of corruption-related cases, Motlhabi said he found it expedient to dedicate one judge to deal with such cases. The selected judge happened to be Justice Motswagole who at the time was based at the High Court in Francistown. "Having decided that the newly established court would be based at the High Court in Lobatse and having taken into consideration Judge Motswagole’s repeated pleas that he wished to be transferred to the southern part of the country I found it fair to assign him the duties of the corruption court. As part of the implementation of this decision Hon Judge Nyamadzabo who was then based at the High Court in Lobatse had to be transferred to Francistown to take the position of Judge Motswagole. The hallmark of this arrangement was such that Judge Nyamadzabo would take occupation of the house Judge Motswagole vacated in Francistown whilst he also took occupation of the house previously occupied by Judge Nyamadzabo in Lobatse," wrote Motlhabi, adding that at no stage was the judge given any promise or guarantee that he will be accommodated in Gaborone. A mistake by administrators, who were not privy to discussions between Justice Motswagole and Motlhabi prior to his transfer and relocation in December 2012, made arrangements for the Judge to be accommodated in Gaborone and Lobatse at the time. The registrar says he was not aware of this oversight. 

Accommodation crisis


In the correspondence between Motlhabi and Ministry of Defence, Justice and Security it emerges that the relocation of the Administration of Justice Headquarters, the High court and Court of Appeal to Gaborone in 2012 also created an accommodation crisis. Judges at the newly opened court had nowhere to stay. Cabinet moved fast and took a decision to avail houses currently used as ministerial houses to address the Judges’ accommodation problem. The problems persisted because not all ministerial houses were immediately ready for occupation, but were only availed periodically as and when they became available. In the allocation of the ministerial houses Motlhabi said he used a fair and equitable allocation model, allocating them to Judges according to their seniority and not convenience or choice. In the implementation of this model Motlhabi moved into a house previously occupied by Vice President, Mokgweetsi Masisi. The next house was allocated to Justice Monametsi Gaongalelwe, in an order of distribution that was to be followed with regard to all the other Gaborone High Court and Court of Appeal based Judges. "It have found nothing unfair or wanting about this decision. The Judges have in any event through consultation with myself agreed that each Judge is to be housed at his own duty station. I found this position appealing on account of its cost saving benefit to the Judiciary and government," wrote Motlhabi. It has since emerged that in the process of cost saving, Justice Motswagole’s tenancy agreement with his then landlord was cancelled and came to an end on the 31st August, 2013. Motlhabi told PS that soon after termination of the lease was communicated, he engaged with Judge Motswagole and at no stage promised him that he will post cancellation of his tenancy be accommodated in Gaborone. The Registrar said it had always been maintained that as a Lobatse Judge Motswagole was expected to be resident in Lobatse, where a number of vacant and unoccupied houses existed. One such house was the one previously occupied by former Judge Onkemetse Tshosa, which has since been occupied by Justice Godfrey Nthomiwa. "It is factually inaccurate that all the Judges houses in Lobatse which were constructed at a great cost to Government are in a bad state of repair and therefore inhabitable. Please be assured that with the view to address Judge Motswagole’s complaint the house previously occupied by Hon. Gaongalelwe has since been vacated and it is intended to be allocated to him," said Motlhabi. 

According to Motlhabi's savingram Justice Motswagole held a strong view that Government should continue to lease private accommodation in Gaborone for the balance of his lease period remaining from the cancelled lease. To have him accommodated in rented accommodation in Gaborone following the allocation of ministerial houses to the Administration of Justice was not tenable, said Motlhabi. The Registrar said in the light of Motswagole's conviction that he would be afforded alternative private accommodation in Gaborone, despite availability of accommodation at his duty station in Lobatse, he advised the judge to independently pursue his case for alternative private accommodation with the Ministry of Lands. "It is evident from Hon Judge Motswagole's line of reasoning that he had thought that he would be allocated one of the ministerial houses when they became available, but as indicated earlier such a promise was never made to him. I wish to reiterate that having considered the Hon Judge’s issue as his supervisor, I still find nothing unfair or inappropriate with my decision that the Judge should move into the house vacated this week by Judge Gaongalelwe in Lobatse," wrote Motlhabi, adding that he would find it difficult in the light of limited resources to justify the maintenance of several unoccupied judges houses in Lobatse while at the same time having to foot a large housing accommodation/rental bill for Judges who should ideally be accommodated at their duty station. "It is imperative that we tread with caution in considering complaints shrouded with inaccurate and misrepresentations of facts as communicated to you lest we set a bad precedent and frustrate our efforts regarding shrewd management of our already limited resources," he advised the PS. 

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