Kwape is a liar – Kebonang
Ugly scenes erupted in court last week when Justice Zein Kebonang refused to recuse himself from former Director General of the Directorate of Intelligence Security (DIS), Isaac Kgosi’s case of unlawful possession of firearms.
The drama emanates from a case in which Kgosi challenged the government security agencies to return his 10 guns which they seized from his house in 2019.
In June 2022, retired Justice Abednigo Tafa ruled in favour of Kgosi but the AG appealed the judgment.
Kgosi is facing criminal charges of unlawful possession of firearms at Broadhurst Magistrates’ Court alongside former President Ian Khama, suspended Commissioner of Police, Keabetswe Makgophe, and former senior police officers, Bruno Paledi and Sehunelo Khunou.
On August 4th, 2023, the Court of Appeal referred the matter back to the High Court for case management.
On August 18th, 2023, the Registrar allocated the case to Kebonang and the Attorney General filed a recusal application.
However, Kebonang dismissed the recusal application since it did not meet any of the required standards for a recusal.
In his judgment, Justice Kebonang lambasted the Deputy AG, painting a disturbing picture of an incident involving the Deputy Attorney General, Otlaadisa Kwape, whom he has also described as ‘a liar’ not fit to hold his position at the office of the Attorney General.
The judge describes the conduct of the Attorney General as “ominous’, adding that, ‘It strikes at the foundations of the rule of law when government institutions seek to disregard a court and undermine proceedings before it.”
Expressing shock that while he had known Diba Diba and Kgotso Botlhole as attorneys for Kgosi and AG respectively, Kwape suddenly appeared on September 22nd demanding that he recuses himself and threatening to halt court proceedings, Kebonang says, “‘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 reserve their right for appea.”
He went on to liken the conduct of Kwape on the day of the case to interfering with the proceedings of court and contemptuous, and stated in his scathing judgment, “His appearance later in the course of the morning was to demand that all court proceedings be halted until his clients had exercised their right to appeal the ruling on recusal application. Advised that the court had already made submissions on their substantive case, Mr Kwape insisted that his clients would not participate in the proceedings and demanded an immediate end to them. Mr Kwape, who was not on record, effectively sought to take over the proceedings and conduct of the applicant’s case.”
Kebonang further noted that it was unusual for a Deputy Attorney General to behave in the manner in which Kwape did.
Furthermore, the judge says the conduct constitutes a clear and present danger to the administration of justice.
“The Attorney General cannot be stubbornly defiant and disruptive because he has been instructed to do so by his clients. Such conduct imperils the fair and orderly functioning of the judicial process and poisons the public’s mind and undermines the rule of law.”’
Referring to the recent appeal case involving Infotrac (PTY) Ltd and Debswana Mining company, he said the AG has failed to provide evidence of bias, and reasonable and apprehension of such bias. Justice Dr Singh Walia declined to recuse himself after Infotrac Managing Director, Mompoloki Motshidi, complained of his fairness, saying he favoured the lawyer for Debswana, John Carr-Hartley (Armstrongs), for whom Walia’s wife is secretary. Motshidi also said Walia was a partner at Armstrongs and had strong links with the law firm.
Kebonang said in the matter before him, the AG had not provided any evidence that he would be biased.
“The apprehension must be substantial and realistic. It must be the apprehension of a very sensitive or scrupulous conscience”.
He said that the mere fact that Kgosi and his twin brother, Sadiq Kebonang, are friends, has nothing to do with his professional conduct.
“I am not responsible for my brother nor his keeper. His friends or enemies are not mine and the converse is equally true. Although twins, we are not conjoined to be viewed and treated as persons with no separate identities. Lives, aspirations and ambitions – my brother’s friendships are not mine, cannot objectively be a basis for a recusal by any reasonable person,” he said.
In addition, he said he was chairperson of the Intelligence Tribunal between 2016 and 2020 and that cannot be used against him as reason for his recusal since the history has no iota of influence on his present daily operations.
Furthermore, Kebonang said he was never jointly charged with Kgosi in the P250 million National Petroleum Fund scandal, saying the criminal matter was reviewed and set aside by the High Court and therefore calling Kwape a liar.
The AG has since issued notice to appeal Kebonang’s refusal to recuse himself.