The company’s director Mompoloki Motshidi, who feels aggrieved by what he perceived as Justice Walia’s treatment of his attorney during the hearing of the P100 million case, wants Justices of the Court of Appeal that presided over the appeal to recuse themselves from the matter.
The case was heard by Judge President Tebogo Tau, Justices Walia and Johan Froneman on July 10, 2023 where there was an alleged heated exchange between Infotrac former attorney Kgosietsile Ngakaagae and Judge Walia.
In his application for recusal, Motshidi who is represented by Tebogo Tladi, says Justice Walia has an extra judicial relationship with Debswana attorney John Carr-Hartley and to top it all, his wife is also the secretary to the said attorney. “I found out that Walia has a very important extra-judicial relationship with the appellant’s counsel Carr-Hartley, that he is a former employee and partner at Armstrongs Attorneys, that Carr-Hartley is the managing partner of Armstrongs and that Carr-Hartley’s secretary is Theresa Walia, being judge Walia’s wife,” he said.
Motshidi argued that Theresa clearly gained intimate knowledge of the case because as a secretary, she typed for Carr-Hartley’s signature, all correspondence between the parties, pleadings and even heads of arguments.
He explained that since Justice Walia is a client of Armstrongs in respect of his personal matters it was therefore highly likely that he also gained intimate knowledge of the case through his wife before he was included in the panel of Justices of Appeal.
“That Carr-Hartley was not only Theresa’s boss but her employer and most probably Judge Walia’s personal lawyer is a relationship that Judge Walia ought to have disclosed to the parties prior to commencement of the hearing and recused himself voluntarily as best practice,” he said.
Motshidi further submitted that the case having spanned through the COVID-19 pandemic years, it was very probable that Theresa at some point would have worked from home in the company of her husband that the judge would have gained very intimidate knowledge of the matter. He pointed out that it was not farfetched that the wife would ask for assistance from her husband if she was working from home so that she excels in her duties and impresses her boss and employer.
Failure to disclose relationship
In his submissions he said Justice Walia’s non-disclosure of the impugned relationship with Carr-Hartley was wrong and it has now created a reasonable apprehension in the mind of their minds, that the non-disclosure was actuated by a bias and the interest to continue to sit in judgement in a case in which he was clearly conflicted. “It could have escaped his Lordship’s mind that his impartiality will always be compromised in cases where his wife’s employer, who is also the learned judge’s lawyer, appears as counsel before him, more so in a case where the stakes are very high and in a matter of public interest. That is a relationship that is likely to prejudice counsel who would appear against Carr-Hartley and ultimately the clients. He ought to have at least disclosed this relationship and recused himself,” he said.
Furthermore, the director said Justice Walia was obliged to disclose to the Judge President and to the parties the fact that he is a client of Armstrongs of which non-disclosure raised a reasonable bias. He noted that in his view, the perception that a husband and wife may in the secrecy of time find themselves inadvertently discussing a case in which they are both involved and influencing each other in such discussions was most reasonable in the circumstances of the case.
Motshidi emphasised that Justice Walia may have been terribly hostile to Ngakaagae during the hearing because he may have been labouring under tremendous influence from his wife, to ensure the success of Carr-Hartley’s client by creating an unwarranted atmosphere that Ngakaagae was incapable of successfully addressing the questions posed by the court. He argued that the latter could not be excluded from the scope of the risk profile created by the undisclosed relationship between Justice Walia and Debswana’s counsel. “It is not farfetched that the manner in which Judge Walia would treat Carr-Hartley in court may have consequences on how Theresa Walia is ultimately treated or even on whether she will keep her job for the foreseeable future,” Motshidi said.
Exhibition of bias
In his arguments, Motshidi said Debswana attorney was allowed to respond to all questions and comments posed by the judges and that he was not asked not more than approximately five questions.
He explained that the atmosphere changed drastically when his attorney stood up to make submissions and that before he could even complete the first legal proposition that Ngakaage was bombarded with many questions by Justice Walia in the most intemperate tone. “What was surprising is that Judge Walia appeared not to be interested in the answers that Ngakaagae could muster because many questions would follow through sharp interjections,” he said. Motshidi argued that the situation worsened with each attempt that Ngakaagae made to address the court and that Judge Walia appeared to have made up his mind that Ngakaagae will not be able to address the questions, and that he cannot defend the judgement of the High court but without affording him audience. He lamented that he was a spectator in court to the spectacle as the uncomfortable exchange occurred between Justice Walia and attorney Ngakaagae and said the essence of Justice Walia’s different treatment of counsel meant he was not applying blind justice but was biased and that it was apparent in favour of the mining company’s counsel. “When we left court after the hearing, I was aggrieved and I went on a quest to investigate why the judge appeared to exhibit bias in favour of the appellant,” he said.
Recusal of the panel
He said while the greater part of his complaint is against Walia, it was only proper that the entire panel recuse themselves for reasons that
*Judge Walia would have already made his contribution to the judgement envisaged in the appeal, which means his sole recusal will not cure the miscarriage of justice complained about whether real or reasonably perceived.
*That other Justices of Appeal have already taken view or formed an opinion on the determination of the appeal under circumstances where he suffered great prejudice or has a reasonable apprehension that such prejudice has occurred.
