At issue is the housing allowance, which was paid to some judges who stay in official residences though it is only meant for judges without such residences. According to a recent advertisement by the Administration of Justice, housing allowance for judges without official residence is P6 545.45.
The four justices, Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang are now the subjects of police investigation for an alleged criminal offence.
In response to the accusation against them, the quartet responded angrily to Dibotelo through a letter dated August 12, 2015. The judges intend to hit back hard. They have instructed their lawyers, Chibanda Makgalemele and Company to sue for defamation.
“We are in receipt of your letter with respect to the above matter, which you wrote ostensibly in your capacity as Chief Justice and Chairman of the Judicial Service Commission (JSC).
“We are alarmed that a matter as internal as housing allowance, whose continued receipt at the instance of the Administration of Justice (AoJ) was never raised with us at any point, has become a criminal matter that you have referred to the police for investigation,” wrote the four judges. They further wrote: “The full import of your letter or complaint to the police is that the judges, of which you are merely the first amongst equals, have in your eyes, and by extension the Judicial Service Commission, committed a criminal offence. This is the most degrading and gravest of accusations a Chief Justice can level at his colleagues.
“In our respective view, in the nature of the complaint, there is nothing for the police to investigate because, whether or not the housing allowance was paid to us, it is a matter in which the AoJ can easily confirm with the payroll section and an arrangement can be made with the affected judges to pay back the agreed amounts.
“We do hereby confirm to you that unbeknown to us, and without our consent, such allowance was paid to us. We are as a matter of fact willing to pay back the aforesaid amounts.”
In their view, it was the primary responsibility of the AoJ or its accounting officer, of which the CJ is not one, to stop the housing allowance once a judge is allocated an official residence.
“It is a matter of record that some of the colleagues you are now accusing alerted the AoJ of this lapse and no action was taken. It is further a matter of record that we are not the only judges to whom housing or other allowances have been paid by the AoJ inadvertently when they were not entitled to same.
“In this context, your selective approach which is highly questionable, amounts to harassment and witch-hunting.”
The quartet continued: “We are of the view that there was no basis upon which to proceed in the manner you did other than being actuated by the crudest and most glaring form of malice to ‘destroy careers’ of some including those ‘who want to replace you as Chief Justice’ as you recently declared publicly”. The judges said they considered the CJ’s letter referring a simple matter of an administrative lapse on the part of the AoJ or its accounting officer to the police as highly defamatory in the civil and criminal sense.
The four warned they would in due course instruct their lawyers to sue for defamation of character
and lay criminal charges of criminal defamation against Dibotelo with the police.
“In our respectful view, this particular development, and the last in which you alleged that the judges were corruptible (although you subsequently withdrew), makes us lose confidence in you as the Chief Justice of the Republic, and we consider that it will be in the best interest of the Judiciary and the country for you to resign with immediate effect.
“Should you decline to do so, we would advise ourselves as to whether impeachment proceedings would be in order/or competent.”
They put it to Dibotelo that this development, together with the other incident in which he alleged that the judges were corruptible, has damaged the reputation of the Judiciary.
“In this light we are taking the liberty to copy this letter to all the High Court Judges, who have taken the oath to uphold, protect and preserve the reputation and sanctity of this institution, for their information.
“In the result, we do hereby demand that you withdraw the letters you wrote to us dated 10th August 2015 with immediate effect,” said the judges.
The judges have instructed attorney Pepsi Thuto to sue Dibotelo for defamation. Thuto has also been given further instructions to report a case of criminal defamation to the police. Criminal defamation is the unlawful publication by print/writing of any matter likely to injure the reputation of any person by exposing him to hatred, contempt/ridicule, or likely to damage any person in his profession/trade by an injury to his reputation with the intent to defame that person.
This is not the first time the CJ has accused his colleagues of alleged corruption. Some time in October 2013 Dibotelo and some High Court judges exchanged ugly spats in public and the Judiciary was nearly brought into disrepute. By then Dibotelo came short of accusing some judges and support staff of being corrupt.
The judges, especially from the Lobatse division took offence at the Chief Justice allegations. They accused Dibotelo of failure to address poor service delivery, which they believed had led to forum or judge shopping within the judiciary. The ‘insulted’ judges demonstrated their displeasure by downing tools.
Reached for comment the police spokesperson, assistant commissioner Christopher Mbulawa said he was not aware of the case reported to them by the CJ.
Likewise, the Registrar and Master of High Court, Michael Motlhabi also pleaded ignorance of the matter. Motlhabi who was reached for comment after work also demanded to be sent a questionnaire.
Response from Judicial Service Commission
PRESS RELEASE: “CHIEF JUSTICE REPORTS JUDGES TO POLICE” (Response to Front-page article in Mmegi of Friday 14th August 2015)
The Judicial Service Commission would like to state that the decision to refer the issue of wrongful payment and receipt of housing allowance for an independent investigation, was that of the Judicial Service Commission as a whole, taken unanimously in good faith after a lengthy and searching debate. It was not, as suggested, a decision taken by the Chief Justice alone.
It should be noted that the JSC is charged with protecting the integrity of the Judiciary and of the Administration of Justice. In terms of the internal Audit Report the alleged payments concerned total in excess of P800,000, and this was considered to be a matter that could not be adequately resolved internally.
Signed by: Mr. M. L. Motlhabi - Secretary, Judicial Service Commission
Oarabile Mosikare Mmegi