Kebonang lambasts the AG for ‘unruly’ behaviour
Mpho Mokwape | Monday October 2, 2023 06:00
Justice Kebonang was allocated the case after it was remitted back by the Court of Appeal to the High Court in August to be heard by a new judge after it was initially heard by retired Judge President Abednigo Tafa.
On Monday this week, Justice Kebonang hit hard at the AG’s behaviour after refusing to recuse himself from the case, an application that was brought by the State. Justice Kebonang said the conduct of the AG was a clear and present danger to the Administration of Justice because it was not for them to force an abrupt termination of the proceedings simply because it had an adverse ruling.
“It is not their right to disrupt the court to insult it but to respectfully preserve their right for appeal,” he said. Justice Kebonang explained that the Constitution vests judicial authority on the High Court and also recognises three distinct organs of State which are institutionally independent from each other, thus although not explicitly stated in the Constitution, no person or organ of State may interfere with the functioning of the courts.
“When any institution in any one of the arms of government considers itself above the law, the tyranny sets in and the rule of law becomes a mere rhetoric to impress the gullible,” he said. He emphasised that the AG was under a constitutional obligation to advise the three arms of government on all matters legal and that the advise must be sincere, and honestly given even when and where it is unpalatable. Justice Kebonang explained that it would have been a very serious matter indeed if the court had allowed the applicants to storm out of court.
“The spectre and conduct of the AG was ominous. It strikes at the very foundations of the rule of law when government institutions aided by the AG seek to disregard a court and undermine proceedings before it,” Justice Kebonang said. More on the conduct of State, he stated that the AG has a duty to protect public confidence in the Administration of Justice without which the standard of conduct of all those who may have business before the courts was likely to be weakened if not destroyed. The judge went on to say the conduct of the applicants in particular the AG, might have been tolerated if it only bordered on personal discourtesy but it could not because it amounted to actually interfering with the proceedings of court. He noted that in the scheme of things, the conduct of the applicants was a contemptuous one and that it was not for the AG to force an abrupt termination of proceedings simply because it had an adverse ruling. “It is not their right to disrupt the court or insult it but to respectfully preserve their right for appeal. The rule of law requires that the dignity and authority of the court be upheld,” he said.
Accordingly, the judge explained that the capacity of the court to carry out its functions depends upon it and orders and decisions issued by the court bind all, meaning no person or organ of State may interfere in any manner with the functioning of the courts. He emphasised that disobedience of court orders or decisions risk rendering the courts impotent and judicial authority a mockery. The judge said it was essential to proper Administration of Justice that dignity, order and decorum be the hallmarks of all court proceedings and that the flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.
“The applicants’ conduct constitutes a clear and present danger to the Administration of Justice. The AG has an obligation to promote the rule of law and cannot be stubbornly defiant and disruptive because she has been instructed to do so by their clients. Such conduct imperil the fair and orderly functioning of the judicial process and poison the public mind and undermines the rule of law,” he noted. Justice Kebonang emphasised that the applicants are subject to the laws of the country and they are not above them, that it would be antithetical to value accountability if the AG was not bound by the law.
The judge, in detailing what truly transpired on that fateful day, explained that following the Court of Appeal decision, the State filed on August 14 a notice to raise points of law. “In their notice, the State indicated that they would seek Kgosi’s case which had been referred back to the High Court by CoA to be dismissed on the grounds that it had now become academic or moot as a consequence of criminal charges having now been proffered against Kgosi before the Broadhurst’s Magistrate Court,” he said. Kebonang said a notice followed on August 24, 2023 from the State setting down their case before him for a status hearing for September 11, 2023 of which the notice indicated that the matter would be coming before him on that day.
He said during all this process until the day of hearing, Otlaadisa Kwape who is a public servant employed by the AG as Assistant Government Attorney was not part of the legal team for State in the case, that only Kgotso Botlhole appeared or all the applicants being AG, the DIS, and Botswana Police Service with no co-counsel appearing with him. Justice Kebonang stated that at the time he declined the recusal application, Kwape was not present nor was he present when the applicants made their submissions on their principal case following the ruling on the recusal application although he had, however, deposed to the founding papers. The judge mentioned that not at any time before the recusal application had the State indicated that they would seek the recusal and that when they finally did, Botlhole accepted its outcome and in fact, went on to argue the main application.
He explained that it was when the court went for a short recess that Botlhole accompanied by Kwape sought to see him in Chambers. “It was at this point that Kwape together with attorney Botlhole asked to see me in my Chambers. From this point on everything became a circus,” he said. He said although Kwape had not until September 22, 2023 appeared on behalf of any party and was not party to the discussions between the courts, attorney Botlhole and Kgosi’s attorney Diba Diba, his appearance later in the course of the morning was to demand that all court proceedings be halted until his clients had exercised their rights to appeal the ruling on the recusal application. “As I indicated, Botlhole was an attorney of record for the applicants. How AG could demand that court proceedings it had initiated be terminated midway was something so brazen and so unusual,” said the judge. At the background of the case was that Kgosi filed a case before the High Court demanding his guns back that were seized by the State in 2019.
The case was heard by former judge Abednigo Tafa and he ruled in favour of Kgosi ordering that the State return all his guns. Aggrieved by the decision, the State filed an appeal with the CoA in which it was heard, upheld and sent back to High Court for a fresh hearing. The State had argued that the guns were part of a pending criminal case.