Demands P5 million
Wants report that vetted him out
Khama only appointed him after CoA ruling
Smarting off from a political humiliation from former President Ian Khama on Monday, the Minister of Defence, Justice and Security Shaw Kgathi has landed into a legal hurdle, coincidentally caused by Khama himself.
Justice Omphemetse Motumise has slapped him together with the Deputy Permanent Secretary, Information and broadcasting Bome Matshaba and Attorney General with statutory notice to sue over publication of defamatory material.
Motumise through his lawyers Bogopa, Manewe, Tobedza and Company contends that Kgathi made a statement on state media that the then President Ian Khama appointed him as per the court order though the vetting process had found him to be unsuitable for appointment to the position of a High Court judge.
Motumise has given Attorney General, Kgathi and Matshaba to supply him with information regarding his vetting which Minister Kgathi said found him not be fit within 10 days.
“In the interest of closure and finality, we invite you to a meeting on a day and time to be agreed to between the parties where the parties will explore a satisfactory means of achieving such finality and closure. Without prejudice, the discussion will include the publication of any retraction and the payment of damages in the sum of P5 million,” reads the statutory notice.
Justice Motumise has given the state 30 days’ notice of intention to sue in the event that there is no satisfactory resolution and closure before the expiry of the notice period.
Addressing a press briefing in September 2016 Minister said that President Khama would, albeit reluctantly, appoint Mr Motumise to the position of judge of the High Court.
This, he said, was despite the fact that the vetting process had found Mr Motumise to be unsuitable for appointment to the position of a High Court judge. The publication was repeated during prime time on BTV in September 2016 and was part of the special bulletin on the 5th and 6th of the same month.
“It was a further of the publishers of the words, pictures and stories complained of to defame our client and cause him to be held in ridicule by ordinary and right thinking members of the public. The repeated publication had the intention and effect of creating a lasting and damning image of our client in the minds of the readers,” reads part of the statutory notice.
Motumise, through his lawyers, highlighted that the publication was not only defamatory but carried the sting that he does not under any circumstances deserve to hold judicial office by reason of unfitness.
“According to the stories complained of, such unfitness was uncovered by a vetting process commissioned and undertaken by the government and/or its functionaries,” reads the notice.
Motumise, who was appointed judge after a marathon case that led to the Court of appeal which instructed President Khama to appoint him, said he was not aware of the of any vetting that was ever undertaken in relation to him and was never informed of it, the matters it has raised nor was afforded any opportunity to be either part of it, to respond to questions or defend himself.
“As far as he knows therefore, if any vetting was done, it was without his consent, knowledge or authority. The vetting was therefore outside any lawful parameters established by the law,” reads the notice.
He now requests to be furnished with a copy of the report generated or produced by the vetting process and the name or names of those who authorised the vetting and proof of the legal powers in terms of which such vetting was authorised including any court orders.
Justice Motumise also wants to be furnished with the terms of reference of the vetting process including any deliverables, the name of the persons or individuals who were appointed or assigned to do the vetting. He also wants report on whether the vetting report was presented to His Excellency the President and full names and identities of those who did so and respective dates of their reports.
“Confirmation whether any information aforesaid was ever presented to the JSC, the Police and/or any law enforcement and/or security operatives with full dates and names and the position of those who did the vetting,” reads the notice.
In April 2017, the Court of Appeal set aside High Court ruling that the President was not bound to follow and accept the Judicial Service Commission (JSC) recommendation to appoint Justice Motumise as judge of the High Court.
The decision was not unanimous as almost all the judges differed in their reasons for the conclusion they reached. Although they differed in some of their reasons Lord Abernethy, Lord Hamilton and Justice Brand agreed with the conclusion of Justice Isaac Lesetedi reviewing and setting aside Khama's refusal to act on the recommendation of the JSC for the appointment of Motumise as a judge of the High Court. Justice Lesetedi observed that Khama in his letter of refusing to act on the recommendation of the JSC did not provide any reasons for such refusal. Even in court papers Khama refused to declare such reasons, safe that he had sound reasons for not acting on the advice.
"It is apparent that both JSC and the President were not properly advised on the remit and powers of the JSC and those of the President in the implementation of Section 96(2) of the Constitution. The President was not entitled to turn down the recommendation of the JSC as his role was to act in accordance with the JSC. It is the JSC which determines when to fill a vacancy. It initiates the process of filling up a vacancy by issuing advertisements and setting out the minimal qualifications stipulated in the Constitution for appointment to that office....In the absence of any explanation by the President therefore, the decision stands to be reviewed and set aside," he said.
On the contrary Justice Monametsi Gaongalelwe differed with four other judges of the CoA and dismissed Motumise’s appeal, saying; "There is no universally accepted meaning (for the) phrase 'Acting in accordance with the advice'. It all depends on the regime of a particular country and the context in light of provisions in the Constitution. I agree with the conclusion of the High Court that in this matter the phrase simply means the President is not to appoint a person who has not been recommended by the JSC".
Five months later Minister Kgathi confirmed that Motumise will be appointed to the bench though President Khama was of the view that the matter was incorrectly decided, he would nonetheless uphold the CoA’s decision.
Kgathi said President Khama believes that the judgment was in contrast with the Constitution, which vested the President with the power to appoint judges to the High Court bench. Kgathi said government would never disrespect a court ruling no matter how it disagreed with it.