Judge Dr Walia refuses to recuse himself Apex court threaten Infotrac with criminal contempt charges
The Court of Appeal panel that presided over the Debswana Infotrac P110 million dispute has described a complaint by the latter company as ridiculous, spurious and tantamount to criminal contempt of court, and abuse of the judicial system.
Judge President Tebogo Tau, Dr Singh Walia, and Johan Froneman concurred that the company has failed to avail evidence that Dr Walia was biased against it. In their 37-page judgment, they said the Court of Appeal by nature is characterised by tough debates and questioning as a way of getting answers to bring finality to a dispute.
They added that during their career, legal practitioners are likely to work for several law firms before they can be appointed to the bench and therefore their past should not be used to hold them at ransom. Justice Tau said this matter was long decided on, adding that Dr Walia was appointed to the High Court bench in 2001 and has fairly presided over matters in which Armstrongs were attorneys for either litigants.
Following the proceedings of July 10th, Infotrac approached the Court of Appeal requesting that Justice Dr Walia recuse himself from the matter since his wife is an employee of Armstrong Attorneys who are legal representatives for Debswana. Furthermore, the company said Dr Walia was at some point a partner at Armstrongs and therefore was still connected to the company.
The company director, Mompoloki Motshidi argued that the judge was conflicted in that he was hostile to Infotrac attorney Kgosietsile Ngakaagae and treating John Carr-Hartley with kid gloves during the July 10th proceedings. He also said Justice Tau was unable to reign in Dr Walia since she depended on him for writing of judgments, something he alleged she can’t do on her own.
Prior to his application for the judges’ recusal, Motshidi had reported the matter to the Directorate of Corruption and Economic Crime (DCEC) for possible investigation of corruption.
“The complaint and the report may well amount to criminal contempt of court for intentionally attempting to influence the outcome of pending appeal. Its content may also amount to contempt in the form of scandalising the court. What the proposition amounts to is that a litigant may manufacture or create a supposed complaint to another body before following the proper procedure of applying for the recusal of the judges hearing an appeal and use its own procedural impropriety as a ground for their recusal. To put it mildly, that cannot be,” Judge President Tau said.
They dismissed the recusal application with costs, before going ahead to uphold the Debswana appeal and ordering Infotrac to pay the costs once again.
In June 2022, former Judge Abednigo Tafa ruled in favour of Infotrac ordering Debswana to pay the company P110 million for services rendered. Debswana then appealed the judgment on grounds that Tafa overlooked a lot of things pertaining to the case.
The Apex judges concurred that there were a lot of inconsistencies and contradictions with regard to evidence of Infotrac witnesses hence creating doubt as to whether there was ever an agreement between Debswana and Infotrac on a P110 million-consultancy services contract. Furthermore, they said that Infotrac has failed to avail any evidence of how Debswana was going to pay the money, nor was it able to provide the names of the person who was involved during its engagement to provide the service.
“When looking at the evidence tendered by Infotrac, it was that on one hand it was Mpho Kewakae, Mazwigwila, Keitumetse and Milton who represented Debswana. On another hand it was Milton and Mazwigwila. On yet another stance it was Kewakae alone. One wonders who actually represented Debswana during the contract?” the court Asked.
Infotrac was engaged in a discrete operation in a seeming feud between then outgoing Managing director Balisi Bonyongo and candidate for the position, the late Albert Milton in 2017. The initial amount agreed and paid was a P136, 640.00 for the investigation carried out.
Milton died after a short illness in August 2019 while on an official trip in South Africa.
