AG slams High Court, Katlholo
Disagreements between Public Officers are resolved administratively - AG Katlholo warned AG against failure to represent him Adv Keetshabe says the decision of the court undermines the doctrine of separation of powers
The Attorney General Advocate Abraham Keetshabe has taken a swipe at the Lobatse High Court and Directorate on Corruption and Economic Crime ( DCEC) DirectorGeneral Tymon Katlholo over their approach in the litigation against the Directorate of Intelligence and Security ( DIS).
Katlholo approached the Lobatse High Court to stop the DIS from accessing investigative files from the DCEC after the DIS sealed off Katlholo’s office and that of the Staff Officer as the crime scene. Katlholo also demanded that such files should be held in the custody of the Registrar and Master of the High Court and be placed in a vault.
Katlholo is represented by Monthe Marumo Attorneys Incorporating Molatlhegi in the matter after the Attorney General allegedly failed and or refused to represent him as should be the case.
High Court Judge Reuben Lekorwe granted Katlholo the interim order to bar DIS or any of its officers and or Agent or any party claiming through it from accessing the files and or records save as may be authorised by the court pending the determination of another claim and the review contemplated.
Justice Lekorwe granted a rule nisi ex parte calling upon the Respondents or any party acting through him and or on his instructions or instructing him, to show cause on June 30th, 2022, or soon thereafter as Counsel may be heard why orders should not be made final.
Adv Keetshabe has stated that his office does not take instructions from Government Departments as to whether they should go to court or not. He said the decision to take legal action in the name of the government is solely that “of myself as Attorney General.” According to Keetshabe, Katlholo’s conduct has got far- reaching consequences for the fiscus in that if allowed or countenanced by the court it will mean that any Public Officer who disagrees with the position taken by his office can instruct his or her lawyers at the expense of the government to institute proceedings against the government. “Disagreements between Public Officers are resolved administratively and not through litigation. It is my considered view as the Attorney General that neither the applicant nor the court can usurp the functions of the office of the Attorney General in the manner in which the applicant and regrettably, the court have done. “This undermines the doctrine of separation of powers between the three arms of government,” argued Adv Keetshabe in his supporting affidavit for the Respondents in the case ( Ministry of Justice and DIS) as a government attorney. In his founding affidavit, Katlholo stated that he had
written to the Attorney General asking him to institute legal proceedings against the sealing off of offices of the DCEC or authorising the DirectorGeneral of the DCEC to proceed to court and seek such relief as he may be advised. According to Katlholo, he informed Adv Keetshabe that should he refuse either to approach on behalf of the DCEC or to authorise to do so, then he would have left him no choice but to approach the court for relief notwithstanding lack of authorisation from him. “The AG’s response decision or lack thereof is reviewable by reason of the fact that it constitutes an abdication of constitutional responsibility and grossly unreasonable considering the history of the matter more particularly the various escalations that were made to him on the same matter of the DIS authority,” he stated. On patent conflict by the Attorney General, Katlholo said an impermissible conflict of interest may exist before the representation is undertaken, in which event the representation should be declined. If such conflict arises after representation has been undertaken, he said the lawyer should withdraw from the representation. He explained that in the case in cause, the two departments fall under the same ministry of the Office of the President and are all government agencies. Katlholo revealed that the DCEC has escalated the matter to the AG and to the Permanent Secretary to the President on more than three occasions so as to seek clarity on the mandate of the scope of the DIS. “On the basis of the foregoing, it is stated that the Attorney General cannot properly and lawfully represent the two departments against one another. In the circumstances, the court will be invited to provide an appropriate relieve ( sic) as set out in the
Notice of Motion.” In a letter written to Katlholo on the 5th of May 2022 on the request for legal representation Adv Keetshabe said they have thoroughly perused Katlholo’s correspondence.
“Our considered view is that we are without basic information on this matter, and therefore we are unable to initiate any court process.
“We recommend that you urgently approach the Permanent Secretary to the President for purposes of resolving this matter,” said Adv Keetshabe in the letter filed with the court.
According to the court papers, Adv Keetshabe said he received a phone call from the Applicant ( Katlholo) who informed him that the offices of the Directorate on Corruption and Economic Crime had been sealed off by officers of the Directorate of Intelligence and Security and that he wanted the Attorney General to defend him.
“I informed him that I was not aware of the situation and that the Director of Public Prosecution ( DPP) had not informed me of any criminal investigations relating to the office ( of) Directorate on Corruption and Economic Crime. “I informed him that I would get back to him after discussing the matter with the Director of Public Prosecution,” Adv Keetshabe said in his affidavit. Keetshabe said that he received a follow- up call from Katlholo on the 4th of May 2022 and that he informed Katlholo that he had not yet spoken to DPP. He subsequently called the DPP and was informed by his secretary that he had travelled to Jwaneng. According to the AG, in his communication with Katlholo, he informed him that he would be arrested upon arrival from Rwanda, to which he could not respond since “I had no information on this matter.”