. . . as High Court dismisses gvt’s recusal bid
Mohalenyane Phakela
HIGH Court judge ‘Maliepollo Makhetha has dismissed an application by the government for her recusal in a case in which 16 principal secretaries (PSs) are challenging their looming dismissal from the public service.
Justice Makhetha ruled yesterday she was more than capable of adjudicating the case fairly. The government had failed to pass the legal muster to warrant her recusal, she said.
Webber Newdigate’s attorney, ‘Mateboho Tohlang-Phafane, who represents the government in the proceedings, had on 28 February 2023 dropped a bombshell when she rose in court to seek Justice Makhetha’s recusal.
This after the judge had ruled that the High Court had inherent jurisdiction to hear the matter and rejected her argument that it was a Labour Court issue. She had also remarked that it was the right moment for the PSs to make noise about the protection of their rights which the government sought infringe.
It were these obiter remarks, among others, that Ms Tohlang-Phafane based her recusal application on. She said the remarks “proved” the judge was biased towards the PSs.
The government then filed a substantive recusal application of the judge.
Adv Darry Cooke, for the government, said the judge’s reasoning showed she had already predetermined the case in favour of the PSs. They therefore did not see any prospects of success before her.
Advocates Christopher Lephuthing and Sello Tṥabeha, for the 16 Ps, begged to differ. They defended the judge saying she had only explained her reasoning for the judgement.
Their argument carried the day after Justice Makhetha, who had reserved her ruling to 29 March 2023, dismissed the recusal application yesterday.
She said that the government had misunderstood her ruling. She had only referred to the wording in the PSs applications. That did not mean she had predetermined the case, she said.
“There must be convincing reasons to grant recusal and there exist no convincing facts for the court to consider reasonableness of the recusal bid. Therefore, the application cannot succeed and is dismissed,” Justice Makhetha said.
She also slapped the government with costs and stated that she was ready to proceed to hear the interim reliefs arguments.
These included whether or not the case should be heard as an urgent matter. The PSs have also asked for the freezing of their dismissal pending finalisation of their application.
Ms Tohlang-Phafane had on 17 March 2023 also written to Chief Justice Sakoane Sakoane seeking the head of the judiciary to fast-track the hearing of the case.
After yesterday’s ruling, Ms Tohang-Phafane sought a few minutes adjournment in order to consult the government on the way forward.
Both parties thereafter went to Justice Makhetha’s chambers. Upon return, Advocates Lephuthing and Tṥabeha told this publication that they had reached an agreement that they would no longer argue the interim interdicts but jump straight into the main case challenging the looming dismissals of the PSs.
They said the government had assured them their clients would remain in office until the finalisation of the matter. The two parties will convene again before court today to set down the hearing dates of the merits.
