- CoA dents Judge Khan’s prospects of full time appointment
- Concerns over Judge Khan’s performance arise
- It is Judicial Misconduct – Legal Expert
The Judicial Service Commission (JSC) is likely to opt against appointing Acting High Court Judge, Abdool Khan on permanent basis as a result of his recent performance, this publication has established.
The Botswana Gazette has gathered that, some members of the JSC have become extremely concerned with Justice Khan’s performance. Three separate Court of Appeal (CoA) judgements in less than six months have stated damning observations against the Judge Khan. CoA did not only raise concerns of Khan’s tendency of delaying judgements but also of ruling a case out of emotion.
The analysis and review of performance of judicial officers is through monthly statistics which are scrutinized by Judge Presidents in various divisions of the High Court and Regional Magistrate in the case of Magistrates before ultimate consideration by the Hon. Chief Justice.
The Registrar of the High Court, who also serves as the JSC Secretary Michael Motlhabi said that they are aware of the judgements made by the Court of Appeal but will not be drawn into discussing them.
“The JSC is aware of the Court of Appeal judgements as they are in the public space,” Motlhabi.
A judgement that was ruled by a bench of three CoA judges, Monametsi Steven Gaongwalelwe, Singh Walia and Zibani Makhwade on March 31st 2020, in the matter between the State and China Jiangsu International Botswana (PTY) LTD for a P1.2 billion Water Tender in Maun, noted that “During submissions it was remarked that the learned judge (Khan) might have got frustrated by what he found to be conduct evincing deliberate delay. I must say while it might well be so, a judicial officer’s judgement should never reflect anger at any of the parties,” stated Justice Gaongwalelwe. The tender was initially awarded to China Jiangsu but was later awarded to the second bidder, Zhengtai Group Botswana (Pty) Ltd, after DISS said China Jiangsu was a threat to national security. The High Court had thrown out Magosi’s evidence and said the Director General of DISS was intermeddling but the Court Appeal later ruled favour of the State and DISS.
On November 15th 2019, another bench of three CoA judges made even more worriesome comments against Judge Khan in a matter between the State and Portfolio Pharmaceticals Botswana (PTY) LTD over the procurement of twenty-eight Anti-Retroviral Drugs (ARVs). When delivering the judgement , Court of Appeal’s Justice Walia found that it was inexcusable that the ruling was delayed by a full six months from the date of hearing. “Such delays are unconscionable and serve to erode public confidence in the judiciary,” Walia said in the judgement.
“In a matter where there were uncontroverted averments of imminent threat to the health and even life of patients in need of drugs, it was irresponsible and callous of the judge to have treated the matter in what I can call an uncaring manner.”
“These are strong words but they echo what has been said by this court before.” The State would later emerge victorious from the appeal.
CoA Judge Issac Lesetedi had also on 26th September 2019 lamented concerns of delayed judgement in the Maun Water Projects after China Jiangsu International Botswana (PTY) LTD took the matter to the Court of Appeal for an appeal on an expedited basis and also an interdict pending the determination of the appeal. In the end, Lesetedi dismissed Jiangsu International Botswana (PTY) LTD’s application with costs.
JUDICIAL MISCONDUCT ?
The Botswana Gazette engaged Gosego Rockfall Lekgowe of Rockfall Lekgowe Law Group on what the concerns of the implications of what the Court of Appeal has said.
“It does not suggest anything about the Judge’s competency, attacking a judge’s competence requires more solid grounds,” Lekgowe stated. He however noted that the concerns raised by the Court of Appeal should be brought before the JSC to determine if Justice Khan’s conduct may amount to judicial misconduct in terms of the Judicial Code of Conduct.
“We have other judges who have delivered judgement late, Justice Khan is not alone. If this particular case comes before the JSC, then all other similar cases must be brought before the JSC.”
Judicial misconduct occurs when a judge acts in ways that are considered unethical or otherwise violate the judge’s obligations of impartial conduct under the Judicial Code of Conduct.
Registrar of the High Court said he will not comment on the prospects of Justice Khan being appointed on a full-time basis as it is a private matter between employer and employee.