Says Justice Walia concealed conflict of interest
The dispute between diamond mining company- Debswana, and Infotrac (PTY) Ltd, over a P110million consultancy contract took an interesting twist this week with the spy firm punching holes on the merits of the judges presiding over the high profile appeal.
In the latest episode of the drama, Infotrac has submitted a loaded complaint to Chief Justice, Terrence Rannowane, complaining that Court of Appeal Judge, Dr Singh Walia, concealed his interests in the matter during the appeal hearing on July 10th, 2023.
Infotrac says Dr Walia did not disclose that his wife works for Armstrongs Attorneys and that she is private secretary to John Carr-Hartley who is representing Debswana in the matter.
The company laments that its attorney, Kgosietsile Ngakaagae, was unfairly treated by Dr Walia and Court President Tebogo Tau to a point that they appeared as if the matter had already been decided upon. Infotrac Director Mompoloki Motshidi says the Justices were hostile towards Ngakaagae whilst Carr Hartley was given time to present his case uninterrupted during the July 10th Appeal proceedings.
“It has been discovered post appeal proceedings that there was a clear failure to disclose an interest in the matter by Walia J. Walia J is a former employee and partner of Armstrongs Attorneys. Not only is that, but his wife Theresa Walia, to date is also actively employed at Armstrongs Attorneys and also Counsel Carr-Hartley’s personal secretary. There is a blatant interest that disqualifies Justice Walia J from exercising impartiality over the matter,” reads the complaint to Law Society of Botswana (LSB) and forwarded to the Chief Justice.
Furthermore, Infotrac complains that all correspondence between them and Armstrongs Attorneys, was made by Theresa Walia.
“This means she had intimate knowledge of all the correspondence between the two parties and it is most probable that through her secretarial role, she would have been the one typing the letters for Counsel Carr-Hartley’s signature. It would be reasonable for any ordinary person to believe that Justice Walia had access to, and was privy to all material matters relating to this case even before it reached the Court of Appeal. This is gross anomaly that should have been addressed by the Court before assigning Justice Walia to the panel presiding over the matter,” Motshidi argues in a letter dated 19 July 2023 addressed to the Chief Justice and copied to LSB.
Motshidi further argues that Justice Walia should have recused himself from the matter since he is conflicted and has demonstrated that during the appeal proceedings.
The company says Judge President Tau failed to exercise her powers even though she knew very well that Dr Walia was conflicted.
“She failed or neglected to conduct a basic due diligence into the judges to determine if they are fit for appointment to the panel. Had she done so and discovered the undisclosed interests, the proper course of action would have been for Tau J to disqualify Walia from this matter, remove him if he was appointed without her approval or compel him at the very least to make disclosure of his interests. None of this was done,” the company says, adding that Justice Tau aided Walia’s attack on Ngakaagae.
The company further alleges that the Court President is struggling professionally and therefore depends on Dr Walia for assistance in many cases.
“A case in point is the Balete vs the State judgment. If indeed there is a co-dependency on the two, of Master and student, it would explain why Tau J allowed a conflicted Walia to sit on the matter. She simply can’t do her job without him. She will therefore decide the matter in whatever direction Walia dictates. She cannot be impartial if she cannot be independent,” the company says.
Infotrac says the Court President has committed “the gravest violations of natural justice and is very complicit in the tainting of these proceedings”.
The third judge in the appeal was South African Justice Johan Froneman.
The company further says the decision of former Justice Abednigo Tafa of the High Court should be upheld or rehearing of the appeal should be presided over by impartial judges from outside the country.
Principal Public Relations Officer at the Administration of Justice, Tshepiso Jankome, said she was not aware of the complaint by Infotrac but promised to investigate for further communication in due course.
The Secretary to the Executive Secretary of LSB, Mpho Rammai, confirmed receipt of the complaint and said they are assessing the letter and that it will be forwarded to the relevant people.
