Lobatse High Court Judge, Gaopalelwe Ketlogetswe, has lost the recusal application against the Acting Chief Justice, Dr. Godfrey Radijeng, The Patriot on Sunday has established.
This is the case in which Judge Ketlogetswe is suing the Chief Justice, Terrance Rannowane, the President of Botswana, and the Judicial Service Commission who sought to interdict disciplinary hearing against him. In the substantive matter, Motlhala Ketshabile & Company representing the applicant together with Advocate Duma Boko wanted Acting Chief Justice Radijeng to recuse himself as the presiding judge given that he was on an acting capacity as CJ and cannot be judge in his own case. He said while holding the forte for Rannowane who is on leave until January 8, 2022, Radijeng is somewhat inclined to rule in Rannowane’s favor. Boko posited that the court’s impartiality will be highly questionable and thus wanted Radijeng to step aside.
Delivering the verdict on Friday afternoon, Radijeng noted that the interlocutory application for recusal was part of the applicant’s main matter that seeks an interim interdict. The judge observed that the application was not launched in terms of the Rules of the Court regarding applications. “The recusal application was moved from the bar on a date that was scheduled for hearing of the Applicant’s main application, in which both parties had filed and exchanged all pleadings including heads of argument,” stated Radijeng in the ruling. He further added that, the respondents and the Court/Judge were not given prior notice except as disclosed in the court chambers before the hearing. He noted that the application made from the bar did not accord interested parties and the party that is asked to recuse itself a chance to reflect as a normal cause would.
Dismissing averments that acting appointment of the presiding judge altered circumstances of the case, he said the question of recusal is a constitutional issue that involve the litigant’s right to a fair hearing before an impartial court in terms of Section 10 (1) and (9) of the Constitution of Botswana. He outlined that the apprehension of bias considers the presumption of impartiality. “I take the view further that the reasonable apprehension of bias must relate to or arise from facts, circumstances or evidence that correlate directly to the issue at hand. The test for apprehension of bias is an objective one and the onus of establishing it lies with the applicant,” said the judge.
Radijeng further accused the applicants of failing to adduce evidence to the effect that the judge will be biased towards the Chief Justice as his appointment of Acting capacity comes with a financial reward. The judicial officer further underscored that by assuming he is enjoined to the main application was also not backed with any evidence.
Against this background, the application for recusal was therefore dismissed by the court. The state was represented by attorney Phadza Molebatsi, Founding Partner at Thabiso Tafila Attorneys.
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