PWC challenges judgement favouring Choppies shareholders
Judge accused of bias
In the marathon case between Retail giant Choppies’ Shareholders and former auditors PriceWaterHouseCoopers ( PWC), the audit firm wants a decision of the High Court given in favour of the shareholders last year, nullified.
Audit firm PWC wants the high court to make an order declaring that all proceedings in this matter before Justice Boipuso Makhwe, including but not limited to her ruling dated 5 April 2023, are a nullity; and the defendants to pay the costs.
PWC and Binedell Rudi are applicants in the matter against Ottapatu Ramachandran, Farouk Ismail, Justice Dr Zein Kebonang and Justice Boipuso Makhwe.
In his court papers, Binedell applied for a declaratory order that all the proceedings in this matter before Justice Makhwe, including but not limited to her ruling dated 5 April 2023 are a nullity. He said Justice Makhwe recused herself from this matter on or about 8th March 2024, by way of a minute served on the defendants on 11 March 2024.
“The fourth respondent ( Justice Makhwe) had, prior to her recusal, delegated, or permitted, the third respondent ( Justice Dr Zein Kebonang), another judge of the High Court of Botswana, with a close association to the plaintiffs and Choppies Enterprises Ltd (“Choppies”), to write important rulings in the matter, all adverse to the defendants, which the third respondent leaked to the press.
“Although the fourth respondent delivered an adverse ruling against the defendants in relation to a separation of issues sought by the plaintiffs, dated 5 April 2023 (“the 5 April 2023 ruling”), she did not draft it. Instead, it was drafted by the third respondent,” Binedell’s affidavit reads.
He avers that Justice Dr Kebonang drafted at least one further adverse ruling against them in relation to the provision of further particulars for purposes of pleading, dated 24 November 2021 (“the 24 November 2021 ruling”), also delivered by Justice Makhwe.
According to Binedell, in any event, the contents of these two rulings were known to Justice Dr Kebonang before they were handed down, and were in the possession and under the control of him before the rulings reached the defendants or their legal representatives.
It is argued that Justice Dr Kebonang leaked these rulings to at least one journalist, again before the rulings reached the defendants or their legal representatives.
“The third respondent has business and financial ties to Choppies and the first plaintiff, which motivates him, so it will be argued at the hearing of this application, to support the plaintiffs in this action.
“The third respondent is or was paid a monthly consultancy fee of P15, 000 by Choppies for “consulting” to it. The third respondent further has a potential motive to prevent ventilation of the first plaintiff ’ s conduct in regard to a cartel investigation into Choppies, in which the media reported the third respondent to have been involved,” Binedell argued in court papers.
He added: “three rulings made in this matter so far all display bias against the defendants, or at least create a reasonable apprehension of bias. They decide factual issues against the defendants without any evidence and without any relevance to the topic at hand.
“They also dovetail with the plaintiffs’ strategy in this matter, which is to have the matter disposed of against the defendants without presenting the oral evidence of the first plaintiff, and without subjecting him to cross- examination.”
Binedell pointed out that these facts, particularly when considered in combination, show bias, or at least create a reasonable apprehension of bias.
They are also highly suspicious, according to him. Further that on the most benign interpretation, they suggest that rulings which should have been under the sole control of Justice Makhwe were shared with Justice Dr Kebonang for unknown purposes, in circumstances in which it was clear ( or ought to have been clear) that he had a personal interest in them.
He avers that it is a reasonable inference that Justice Makhwe did so deliberately, to prejudice the defendants.
“Thus, all three rulings ( assuming without conceding - that it was authored by the fourth respondent) display bias or create a reasonable apprehension of bias. They appear designed to signal to the defendants that the merits of the matter have been prejudged.
“The content of the rulings contains statements which purport to be fact, which for reasons stated earlier are not established facts, and negative personal comments about me at a stage of the proceedings when all material facts were in dispute, and such commentary was unnecessary and unwarranted”, he said.
He stated that accordingly, the defendants have concluded that they would be irreparably and unfairly prejudiced should the proceedings before the fourth respondent, including in particular the 5 April 2023 ruling, not be declared a nullity.