Judiciary Clash Over Debswana-Infotrac Case

CoA says High Court failed to evaluate evidence of the case High Court in 2022 ruled that Infotrac 's version was more credible than Debswana’s Infotrac ‘s Motshidi says he lost against a system inherently biased towards the powerful Debswana Diamond Company, this week breathed a heavy sigh of relief as the Court of Appeal (CoA) upheld its appeal and overturned the High Court ruling, which previously mandated Debswana to pay P100 million to a local intelligence consultancy firm, Infotrac. The ruling brought to an end a protracted legal battle between the two entities which laid bare some of Debswana’s behind-the-scenes dealings. [ihc-hide-content ihc_mb_type="show" ihc_mb_who="3,4,2,1" ihc_mb_template="3" ] Last June, the High Court issued a P110 million judgment in favour of Infotrac against Debswana with Justice Abednego Tafa asserting that he found the Infotrac's version more credible. He said he believed that Infotrac had proven its claim on a balance of probabilities and rejected Debswana's argument that the head of security, a part of the Debswana executive, would not be expected to enter into such contracts. Unsatisfied with the High Court decision, Debswana launched an appeal arguing that the lower court had erred in handing down a judgment in favour of Infotrac. However, on the 31 st July, infotrac, through its Director, Mompoloki Motshidi launched an urgent application for the recusal of all the three judges who made the CoA panel, arguing that one of the judges, Justice Walia is likely to be biased because he has a favourable relationship with Debswana’s legal representatives through his wife, employed as Private Secretary to John Carr-Hartley, Debswana’s lawyer. In dealing with the recusal matter, CoA judge, Justice Froneman, explained that in determining that the onus of establishing apprehended bias has been discharged, a court starts with a presumption of impartiality, namely that judges will carry out their oath of office. “This presumption can be displaced by cogent evidence that passes a ‘double reasonability’ test or a two-fold element: (i) the person considering the alleged must be reasonable and (ii) the apprehension of bias itself must be reasonable in the circumstances of the case,” stated Froneman. Froneman says before Motshidi brought his recusal application to the appeal court, he delivered a complaint to the Office of the Chief Justice, asking for the appeal proceedings as a whole to be declared a nullity. The Chief Justice is said to have declined to entertain the complaint on the basis that he had no competence to interfere in a matter that was still sub judice. In delivering the judgment, Froneman noted that Walia JA has been a well-known and respected member of the bench since 2001. According to Froneman, Justice Walia’s association with Armstrongs was well known to the Gaborone legal community, and it presented no bar to him hearing appeals from that firm. “His colleagues on the bench and from the legal community were aware of this,” said Froneman. “He approached the then Chief Justice many years ago for permission for his wife to work at Armstrongs again after a period of absence since he was first appointed to the bench. He has never hidden these facts, which were well known to any informed observer of the Botswana High Court and Botswana Court of Appeal.” In the end, the CoA panel made up of Tau P, Walia JA, and Froneman JA, dismissed the application by Infotrac for the recusal and went on to deliver the final ruling. They ruled that: “The High Court misdirected itself in the judgment.The Appellant’s argument has merit and it is upheld.” Contrary to the High Court’s ruling that the probabilities favoured Infotrac, CoA ruled that the probabilities favoured Debswana, and as such, upheld the appeal with costs and set aside the High Court P110 ruling, thereby dismissing Infotrac’s claims. Spymaster Reacts to P110M Debswana Case Loss.. When reacting to the final ruling, Motshidi said he “was shocked but not surprised”. He stated, "I accused the judges of a conflict of interest, not out of spite or a desire to undermine the integrity of the judiciary, but out of a profound belief in the principles that our legal system supposedly upholds fairness, impartiality, and justice. But it appears they had a different agenda away from the case I was raising." Motshidi made it clear that his case was about more than just his personal interests. It was a symbol of the countless individuals who often find themselves pitted against a legal system that appears to be inherently biased against the "small men" of society. "I firmly stand by my assertion that I lost not to Debswana but to a judicial system plagued by conflicts of interest. It is a system where the scales of justice seem to tilt towards the powerful, where the voice of the common man often goes unheard, and where the promise of justice for all remains elusive," he asserted. However, Debswana’s Executive Head of Corporate Affairs Rachael Mothibatsela issued a statement and said; “Debswana believes that the correct application of the Law to the facts was applied by the Court of Appeal, and that the reasoning of the Judgment is sound. We are delighted that the Court of Appeal Judgment has completely vindicated Debswana’s position on the matter. We now consider the matter closed following the Judgment of the highest Court in the land.” [/ihc-hide-content]

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Judiciary Clash Over Debswana-Infotrac Case

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