…accuses her of abusing the courts by recycling a dismissed case
Moorosi Tsiane
THE government has accused Director of Public Prosecutions (DPP) Hlalefang Motinyane of manipulating the judicial process by recycling a previously dismissed case in a bid to delay proceedings and discredit the judiciary.
In a heated court appearance on Tuesday this week, Prime Minister Sam Matekane’s legal representative, Adv Guido Penzhorn, lambasted Adv Motinyane’s latest application for the recusal of three High Court judges, branding it a “repackaged” version of an earlier attempt to challenge the same panel, which was thrown out in September last year.
Adv Penzhorn argued that the application lacked merit and failed to establish any grounds of bias or impropriety on the part of the judges — Justices Fumane Khabo, Realeboha Mathaba, and Tšeliso Mokoko — who were appointed to preside over the DPP’s constitutional challenge.
Adv Motinyane, who was suspended by Mr Matekane on Monday this week (see story on page 2) approached the Constitutional Court in August 2024 seeking to stop her removal from office after the Matekane administration had initiated proceedings to impeach her, citing gross incompetence.
She had been served with a “show cause” letter asking why a tribunal should not be established to probe her fitness to remain in office.
Her initial interlocutory application was filed in October 2024, still seeking the removal of Justices Khabo, Mathaba and Mokoko, arguing one judge could hear her case. However, it was subsequently dismissed in December by the three judges.
Adv Penzhorn accused the DPP of abusing court processes to derail her impending impeachment proceedings, calling for the court to reject the application outright.
“There is no suggestion that any of the three presiding judges are biased. This is a repetition of a previous application, which this court has already dismissed. The court cannot be dragged into the same issue again,” Adv Penzhorn said.
He further reminded the court that Chief Justice Sakoane Sakoane — who is cited as a respondent in the main application — is, by constitutional mandate, the head of the judiciary and has the authority to allocate judges.
“This is just an old matter reheated in a different form. Everything we are dealing with here has already been decided. If the DPP was aggrieved by that ruling, her proper recourse was to appeal to the Court of Appeal. Instead, she seeks to re-enter the court through a back door. This matter must be dismissed.”
However, Adv Motinyane, through her lawyer Adv Tekane Maqakachane, argued that the current panel of judges was improperly constituted, submitting that the appointment of the three judges by Chief Justice Sakoane — who is directly involved in the case — violates judicial procedure.
Adv Maqakachane referred to Section 12 of the High Court Act of 1978, which empowers the Chief Justice only to regulate the distribution of business in the High Court and authorise that a matter be heard by a panel of three judges.
However, he said, the law does not permit him to handpick judges for a particular case — especially one in which he is a party.
“The allocation of cases in the High Court falls exclusively under the Deputy Registrar, as outlined in Section 8 of the Administration of the Judiciary Act 2011,” Adv Maqakachane submitted.
“This process is done through a computerised individual docket system that automatically assigns cases. The Chief Justice may not designate specific judges, particularly when he is a respondent in the matter.”
He also took issue with the seniority of the appointed judges, arguing that as junior members of the bench under the Chief Justice’s supervision, they are disqualified from presiding over a case involving their superior.
“These Honourable Judges are disqualified from participating in the main application by virtue of their relationship with the Chief Justice. Their appointment by him raises the risk of bias, as they may feel obliged to rule in his favour and against the applicant.”
Adv Maqakachane further claimed that his client had credible information that individuals had already been approached to form part of a tribunal for her intended impeachment, suggesting an ulterior motive behind the judicial appointments.
After hearing arguments from both sides, Justice Khabo reserved judgment and informed the parties that they would be notified once a ruling has been made.
“Counsel, ruling has been reserved, and you will be notified when it is ready,” said Justice Khabo.
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