Botswana Guardian

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

- Nicholas Mokwena Dikarabo Ramadubu

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.”

 ?? ?? AG Advocate Abraham Keetshabe
AG Advocate Abraham Keetshabe

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