GAETSALOE v DEBSWANA DIAMOND CO PTY LTD 2010 3 BLR 550 CA

Export to PDF
Export to Word
Export to print
Citation: 2010 3 BLR 550 CA
Court: Court of Appeal
Case No: Civ App 27 of 2008
Judge: Tebbutt JP, Ramodibedi and Lord Abernethy JJA
Judgment Date: July 29, 2010
Counsel:
I K L Segopolo for the appellant.rnS C Vivian with him D MakatiMpho for the respondent.
Flynote

Courts - Court of Appeal - Composition - Constitutional matters - Court to be composed of five judges in appeal or application raising constitutional matter - Court of Appeal Act (Cap 04:01), s 9. 

Headnote

The appellant brought two interlocutory appeals before the Court of Appeal. When the first was dismissed, he brought an application for three of the five presiding judges, plus another, to recuse themselves from hearing the second. At the hearing of the recusal application, the Court of Appeal raised the question mero motu whether it was competent, as presently composed of three judges, to determine the application.

Held: (1) The question of recusal of a judge was a constitutional matter  that went to the right of a litigant to a fair hearing before an impartial court, in terms of ss 10(1) and 10(9) of the Constitution of Botswana. President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) at para [30] applied.

(2) Section 9 of the Court of Appeal Act (Cap 04:01) made provision for a  court of five judges in an appeal (as opposed to an application) on a constitutional matter. Neither the Court of Appeal Act (Cap 04:01) nor the Court of Appeal Rules (Cap 04:01) (Sub Leg) made provision for the composition of the court in an application on a constitutional matter.

(3) However, the court had a duty to act constitutionally. That meant that, as regards the composition of the court, the court would not make any  distinction between an appeal and an application which raised a constitutional matter as to do so would be unduly technical and would overlook the substance of the matter. President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) at para [31] applied.

(4) Accordingly, it was not appropriate for the court as presently  constituted to hear the application for recusal.

Case Information

Cases referred to:

Gaetsaloe v Debswana Diamond Co (Pty) Ltd (2) [2010] 1 B.L.R. 110, CA

Gaetsaloe v Debswana Diamond Co (Pty) Ltd (3) [2010] 1 B.L.R. 127, CA

Gaetsaloe v Debswana Diamond Co (Pty) Ltd (4) [2010] 1 B.L.R. 132, CA

President of the Republic of South Africa and Others v South African  Rugby Football Union and Others 1999 (4) SA 147 (CC)

APPLICATION for recusal. The facts are sufficiently stated in the judgment.

I K L Segopolo for the appellant.

S C Vivian (with him D Makati-Mpho) for the respondent. 

Judgment

Tebbutt JP:

The matter before this court and the subject of this judgment concerns an application by the appellant to three judges of this court, requesting them to recuse themselves from participating in certain proceedings in this court.

The parties are involved in litigation against each other arising from the  appellant's previous employment with the respondent.

In the course of such litigation the High Court gave judgment and made orders in respect of (i) an application by the appellant for the discovery of documents by the respondent and (ii) a plea by the respondent that certain claims by the appellant against it had prescribed.  

The appellant has appealed against such judgments and orders to this court in two separate appeals:

     (i)      What we shall refer to as the discovery appeal, relating as it does to the discovery application, partly dismissed by the High Court; and

     (ii)      What we shall refer to as the prescription appeal, unrelating as it does to the plea of prescription upheld by the High Court.

Three judges of this court viz Moore, Twum and Howie JJA heard and  dismissed the discovery appeal.

Thereafter, a Full Bench of five judges of this court, including Moore, Twum, Howie JJA and McNally AJP had been empanelled to adjudicate upon the prescription appeal.

Prior to the hearing of the prescription appeal, the appellant requested Moore, Twum and Howie JJA each to recuse himself for hearing the  prescription appeal. They each refused to do so. Gaetsaloe v Debswana Diamond Co (Pty) Ltd (2) [2010] 1 B.L.R. 110, CA; Gaetsaloe v Debswana Diamond Co (Pty) Ltd (3) [2010] 1 B.L.R. 127, CA and Gaetsaloe v Debswana Diamond Co (Pty) Ltd (4) [2010] 1 B.L.R. 132, CA).

The appellant has since brought an application on notice of motion dated 24 June 2010 in this court for an order that Moore, Twum, and Howie JJA  'are recused' [sic] from hearing the prescription appeal and that McNally AJP be requested also to recuse himself from hearing that appeal.

It is that application which is at present before this court, consisting, as it does, of a panel of three judges, viz Tebbutt JP (presiding), Ramodibedi JA and Lord Abernethy JA.  

At the outset of the hearing of the matter, the court raised the point whether this court, composed of three judges, was competent to hear the matter.

Mr Segopolo, attorney for the applicant, submitted that it was not. He submitted that the question of the recusal of a judge was a constitutional matter that went to the right of a litigant to a fair hearing before an impartial court in terms of s 10(1) and (9) of the Constitution of Botswana.  He referred to the case of President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC) and in particular to para [27] to [34] of the judgment of the Constitutional Court of South Africa in that case.

That being the situation, Mr Segopolo submitted that it was necessary for a court of five judges to be convened to deal with the matter.  

In reply, Mr Vivian, counsel for the respondent, submitted that, since this was an application and not an appeal brought under the provisions of the Constitution, the terms of s 9(2) of the Court of Appeal Act (Cap 04:01), which provide for a court of five judges in such an appeal, did not apply. Rather, the normal provision for a court of three judges applied, as provided for by s 9(1) of the Act.  

The first question that is necessary to consider is whether the question of the recusal of a judge is indeed a matter bearing on the constitutional right of a litigant to a fair hearing before an impartial court. Mr Vivian did not suggest otherwise but we are satisfied that Mr Segopolo was correct in his submission on this point.  

As was said by the South African Constitutional Court in President of Republic of South Africa v South African Rugby Football Union (supra) at p 169C, para [30]:

     '[30] ... We have no doubt, therefore, that the application for recusal raised a "constitutional matter" within the meaning of s 167(3), and that it  was the duty of this Court to give collective consideration to the question  whether the Judges concerned should recuse themselves.'

It is furthermore appropriate to quote what was said by the court in para [31] of its judgment:

     '[31] Judges have jurisdiction to determine applications for their own recusal.  If a Judge of first instance refuses an application for recusal and the decision is wrong, it can be corrected on appeal. But no provision exists in any law for an appeal against a decision of this Court. As the ultimate Court of appeal in constitutional matters, this is the only Court which has the power to set aside one of its judgments or to correct an error made by it. Whether such a power  exists, and if so, in what circumstances it would be exercised, need not be decided in the present case, for this Court clearly has a duty to act constitutionally. If one or more of its members is disqualified from sitting in a particular case, this Court is under a duty to say so, and to take such steps as may be necessary to ensure that the disqualified member does not participate in the adjudication of the case.'  

The next question to consider is the mechanics of how this court should proceed when it receives an application claiming that a judge who has been asked to recuse himself is alleged to have wrongly refused to do so.

It is true that s 9 of the Court of Appeal Act makes no provision for such a  situation. It does, however, provide for a court of five judges in an appeal (as opposed to an application) on a constitutional matter. The Court of Appeal is empowered to make rules of court regulating practice and procedure in terms of s 16 of the Act. But that does not advance matters in this case because the Court of Appeal Rules (Cap 04:01) (Sub Leg) make no provision for the present situation either.

In this court's opinion, however, one must look at this matter against the  background of the fact that, as was said in the President of the Republic of South Africa case (supra), the court has a duty to act constitutionally. That means, in our view, that the court should interpret the relevant statutory provisions against that background and in a manner which is in accordance with the spirit and purpose of the legislature when it enacted those provisions. In any event, this court has an inherent jurisdiction to  regulate its own procedure. Accordingly, in our opinion, when the court is presented with a matter which raises important constitutional issues, as this application does, it should not be unduly distracted by the differences between an application and an appeal. In our view, to do so would be unduly technical and would overlook the substance of the matter.  

In our opinion, therefore, the court should deal with this matter in the same way as it would deal with it if it were technically an appeal rather than an application. That means that a court of five judges should be convened to deal with it. To deal with it in any other way would be inconsistent with the requirements for dealing with an appeal raising constitutional issues of this kind and would not do justice to the importance of the issues raised in this application.

For these reasons we hold that it is not appropriate for this court as  presently constituted with three judges to hear and decide the matter. It should be heard and decided by a court of five judges, and it is so ordered. The costs of this application are reserved for determination by that court.

Ramodibedi and Lord Abernethy JJA concurred.  

Application postponed.


<<Back