Chief Justice Maruping Dibotelo has been granted his wish.
Justice Phadi Solomon of the Francistown High Court on Wednesday morning dismissed an interdict application made by four judges; Justices Lot Moroka, Gaopalelwe Ketlogetswe, Tshepo Motswagole and Godfrey Nthomiwa.
The quartet had dragged Dibotelo before court seeking an interim interdict to stop the Judicial Service Commission and the Chief Justice from going ahead with disciplinary proceedings.
This follows a 2015 petition signed by 12 judges calling for Dibotelo’s impeachment.
The petition was signed in solidarity with four other judges who were suspended and being investigated for receiving housing allowance while residing in institutional houses.
Eight of the judges later withdrew their signatures and personally apologised to the CJ, while the remaining four did not tender any apology.
The four judges who after the housing allowance issue was dealt with got the shock of their lives when they were called upon to show cause why the original petition they had endorsed should not be referred to His Excellency the President for his consideration in terms of the constitution.
They then made an urgent application as they unanimously believed that pursuit of the matter would delay the healing period of the judiciary which took a battering following the suspension of the four judges and apologies by eight others.
In her findings, Justice Solomon observed that there was no reference made to an investigation as stated in the Dibotelo’s answering affidavit where he stated that the JSC has no powers to cause disciplinary investigation on an appointed judge or putting in place of a tribunal as these are all exclusively the President’s prerogatives.
“A proper reading of the constitution clearly states that it is a Tribunal appointed by the President which can investigate. Nothing in the constitution gives the Chief Justice such power,” said Solomon.
Justice Solomon also dismissed the submission that a decision to discipline the applicants was illegal since it was made after two years.
She said the Chief Justice wrote to them two days after the petition was authored informing them that it would not be appropriate to meet with them whilst police investigations were pending.
“None of the applicants responded which gives rise to an inference that the applicants accepted the explanation,” she said.
She further said delay in disciplining is what both parties agree is illegal if there’s no justification for the delay.
“In this matter the applicants have not been subjected to disciplinary action by the first respondent (CJ).”
“They only habour apprehension that they will be disciplined, apprehension of disciplinary action is not the same as disciplinary action, so the delay in communicating by the first respondent cannot be interpreted as illegal,” Justice Solomon said.
She further added that the applicants are so apprehensive of possible harm, in the form of removal from office that they want court to stop the Chief Justice (first respondent) from performing future duties which he’s entitled by law to perform.
“For the aforegoing reasons I find that the applicants have not adequately substantiated their application for an interim interdict and application is accordingly dismissed with costs,” she said.
(Log onto www.thevoicebw.com to for a visual response by the applicant’s lawyer Wada Nfila).