- Infotrac objects that Justice Walia did not disclose that he was conflicted
- Argues that his influence tainted the proceedings and warrant a rehearing by a new panel
- Recusal hearing scheduled for Thursday (tomorrow)
GAZETTE REPORTER
The Director of Infotrac, Mompoloki Motshidi, has raised concerns about the potential influence and conflict of interest of Court of Appeal judge Walia in his P110 million case against Debswana.
The head of the surveillance and spying equipment outfit believes Justice Walia’s influence has tainted the proceedings, thus warranting a rehearing with a new panel to ensure impartiality and fairness.
“The essence of the learned Walia JA’s different treatment of counsel means he was not applying blind justice,” Motshidi says in his application for recusal. “He was biased, it was apparent, in favour of counsel for the appellant.
Bias
“When we left court after the hearing, I was aggrieved, and I went on a quest to investigate why the learned Walia J.A. appeared to exhibit bias in favour of the appellant.”
Motshidi says what he found was a glaring case of conflict of interest on the part of the judge because Walia’s wife, Theresa, was and is the private secretary of Debswana lawyer John Carr-Hartley whose firm used to employ Justice Walia.
According to Motshidi, Justice Walia did not disclose this to other members of the panel.
Proceedings tainted
But while he says his main complaint is centred around Justice Walia, Motshidi’s application also calls for the recusal of the entire bench for the following reasons:
- “The minimum quorum of court is three justices of appeal. The learned Walia J.A. would already have made his contribution to the judgement envisaged in the appeal, which means his sole recusal will not cure the miscarriage of justice complained of, whether real or reasonably perceived; and
- the other judges have already taken view or formed an opinion on the determination of the appeal, under circumstances where the respondent suffered great prejudice or has a reasonable apprehension that such prejudice has occurred.”
Different panel
“Therefore,” Motshidi continues, “it is only proper that the entire panel of the honourable judges of appeal who have heard the appeal on 10 July 2013, recuse themselves from this appeal and in order that it be re-heard by a different panel of judges.
“The remedy sought, if accepted by the honorable justices of appeal, will not be an admission of impropriety on their part, but simply a demonstration of their commitment to the protection of the rights of litigants to have access to a Court of Appeal which is grounded on the principles of fairness and impartiality, which are the cornerstones of justice and the rule of law in a democratic society.”
Beyond doubt
It is not known how the panel will treat the application. The ruling for the dispute was scheduled to be delivered on Friday this week.
Motshidi won the case at the High Court, which ruled that he had proved beyond doubt that he was owed P110 million by Debswana.
However, Debswana appealed the ruling, arguing that the High Court had erred in arriving at that conclusion.