A full bench of the apex court, the Court of Appeal on Friday dismissed and set aside an earlier High Court judgment, which had released convicted criminal -Carter Morupisi from prison by overturning a seven-year imprisonment he was serving in jail. The former Permanent Secretary to the President, Carter Morupisi was freed by the High Court on New Year’s Eve, which led to the Directorate of Public Prosecutions (DPP) led by attorney Tshiamo Rantao appealing the decision on urgency.
On Friday, the five Judges Isaac Lesetedi, Goemekgabo Tebogo Maruping, Leatile Dambe, Johan Coenraad Froneman, Edwin Cameron overturned and set aside the High Court decision and ordered that Morupisi be taken back to jail to continue serving the seven year jail term imposed by the Court of Appeal.
Morupisi’s lawyers had applied for stay of the proceedings and the recusal of Justice Bambe and Justice Lesetedi. The stay application was preceded by a recusal application, initially for the recusal of this entire panel; but later whittled down to only two members of the Court. The question whether the High Court Judge whose recusal was sought, Kebonang J, should have acceded to that application was also raised of the Director of Public Prosecutions, finding that the charges sought to be prosecuted were reasonable. The Marsland adjudication has nothing at all to do with the involvement of the Respondent in any of the issues before it. Nor does it have anything to do with his connection to possible corrupt practices related to the companies Mr Marsland may have been associated with.
The jduges said bias or perceived bias which would disqualify a judicial officer must relate to the actual case being tried. The fact that a judicial officer may have been involved in a different case where the same litigant was a party or had made an adverse previous ruling against that litigant, does not sufficiently ground a claim for recusal for actual or perceived bias.
Therefore, the judges ruled that the application for the recusal of Lesetedi and Dambe JJA thus has no merit. This is why the Court dismissed the application. The consequence, both in logic and in substance, is that the averment of apprehended bias on the part of the President in empaneling this Court also lacks substance. Without reasonable apprehension of bias or perceived bias on the part of any of the judges she assigned to the matter, there is similarly no basis to seek to review her decision. That is why the stay, too, was refused .
In addition, the contention that the President of this Court was empaneling this Court in her own cause fails because her involvement was purely professional: this appeal is concerned solely with questions of law, in which she has no perceivable personal interest.
Kebonang’s recusal
That brings us back to whether Kebonang J’s refusal to recuse himself has become immaterial. It is true that the High Court’s assumption of jurisdiction to revisit Court of Appeal judgments has already been rejected. Nevertheless, broader considerations relating to recusation make it necessary in the interests of justice to deal with this matter.
A comparison of the recusal application directed at this Court, and the one in the High Court, reveals two pronounced differences. The first is the relative strength of the grounds for recusal in each; the second is the manner in which the merits of these grounds were dealt with in each. We have just pointed out how flimsy the ‘offshoot’ case argument is in the recusal application against this. Court. The ground of recusal in the High Court was radically different.
The principal ground on which recusal was sought there was that close family members of the Judge benefitted from funds of a company, following upon the unlawful award of a tender to that company by the very Respondent in these proceedings. There existed an association between the Judge’s twin brother and the controlling minds of that company. This association led to his brother receiving· an undue payment. The brother was later obliged to return that payment when the liquidator of the company hunted down the money trail.
In addition, there was another association: but for the criminal acts of which the Respondent was convicted in these proceedings, the company would not have received the very funds that were used to purchase a vehicle for the Judge’s mother and to make the undue payments to his brother.
The reasonable bystander could be readily be pardoned if she apprehended that the Judge would be biased in favour of the respondent. The Respondent was the person who was the root cause of benefits that flowed to the Judge’s brother and to his mother.
Under those circumstances, it would have been proper for the Judge to step aside from the entire litigation in these proceedings. Instead, the Judge made matters worse, by imputing bad faith to the Appellants for applying for his recusal. He did so, surprisingly, on the basis of matters the Appellants did not raise at all in the recusal application. Nor did he give the Appellants, or those he accused of ulterior motives, a chance to be heard. His outburst does nothing to assuage the reasonable doubts reflected in the actual ground the Appellants advanced for his recusal.
First judgment
Setting Morupisi free, the High Court had ruled that Judge Singh Walia of the CoA was not impartial but was rather influenced by the Executive to convict him on three charges of corruption and money laundering and sentence him to seven years in jail. Judge Walia had mentioned during sentencing that the President is desirous of ending corruption. The High Court then nullified the seven year sentence imposed by the CoA, reinstating an earlier suspended sentence by High Court Judge, Mokwadi Chris Gabanagae. The judge had convicted Morupisi on two counts of corruption and one of money laundering. He was sentenced to two years imprisonment wholly suspended on the first count of corruption and P50 000 on the second count of corruption or five years imprisonment in default of payment. On the money laundering count, Morupisi was fined P80 000 or eight years imprisonment in default of payment.