Judge Masilo Mathaka, in his dissenting judgement delivered on January 3, 2025, agreed with the majority that the Court of Appeal (CoA) violated Carter Nkatla Morupisi’s constitutional right to a fair hearing by an independent and impartial tribunal. However, Mathaka dissented on the issue of the appropriate remedy, arguing against the High Court’s jurisdiction to declare the CoA’s sentencing decision a nullity.
Mathaka concurred with the majority, led by Justices Dr. Zeinub Kebonang and Reuben Lekorwe, that the CoA’s reference to the President’s stance on corruption in its sentencing remarks compromised judicial independence. He acknowledged that such remarks breached Morupisi’s rights under Section 10(1) of the Constitution, which guarantees a fair hearing by an independent and impartial court.
Mathaka diverged from his colleagues on the issue of the relief granted. While the majority nullified the CoA’s decision and reinstated the original sentences imposed by Justice Gabanagae, Mathaka argued that the High Court lacked the jurisdiction to quash or set aside a decision of the CoA.
He emphasized the constitutional hierarchy of courts, which places the CoA at the apex, and the principle of stare decisis, which requires lower courts to respect the decisions of higher courts. “To deviate from this rule is to invite legal chaos,” Mathaka stated, citing previous rulings, including Water Engineering v Tebbutt (2005) and State v Maauwe (2006).
Mathaka proposed a different course of action, suggesting that the matter be referred back to the CoA for reconsideration. He argued that the High Court’s role was to declare the CoA’s decision unconstitutional and stay its operation but not to nullify it outright. He recommended the following relief: Declaring the CoA’s sentencing judgment unconstitutional for contravening Section 10(1) of the Constitution. Referring the matter to the CoA for redetermination. Staying the operation of the CoA’s sentencing judgment pending its redetermination. Granting Morupisi interim bail. Awarding costs in favor of Morupisi.
Mathaka reasoned that this approach respected the constitutional hierarchy of courts while ensuring that Morupisi’s rights were upheld. While aligned with the majority on the violation of constitutional rights, judge Mathaka emphasized the importance of adhering to the established judicial hierarchy and the principle of stare decisis to maintain the integrity of Botswana’s legal system.
