Acting High Court Judge Abdool Khan has come under heavy criticism by Court of Appeal regarding his conduct as a judicial officer in dealing with matters before him. In the matter between government and China Jiangsu International Botswana (PTY) LTD for a P1.2 billion Water Tender in Maun heard on 31 March 2020, a panel of three Court of Appeal Justices, Monametsi Steven Gaongwalelwe, Singh Walia and Zibani Makhwade noted that:
“During submissions it was remarked that the learned judge might have got frustrated by what he found to be conduct evincing deliberate delay. I must say while it might well be so, a judicial officer’s judgement should never reflect anger at any of the parties.” The tender was initially awarded to China Jiangsu but was later awarded to the second highest bidder, Zhengtai Group Botswana (Pty) Ltd, after Directorate of Intelligence and Security (DIS) said China Jiangsu was a threat to national security.
The High Court had thrown out DIS Director General Peter Magosi’s evidence and said he was intermeddling but the Court of Appeal overruled the decision of the lower court. China Jiansung had dragged Ministry of Land Management Water and Sanitation Services and Public Procurement and Asset Disposal Board to court over the tender. The Court of Appeal judges indicated that Justice Khan laid emphasis on the point that the entire litigation from the part of the Appellant (Ministry and PPADB) was engaging on delaying tactics.
"That finding may or may not be correct but in laying emphasis on the point the court a quo went overboard to the extent of committing material misdirection," said Justice Gaongalelwe. In dismissing PPADB and the ministry's application Justice Khan had noted that the Appellants have not complied with statutory requirements and their conduct merely delays progress in the matter.
The appeals court however indicated that the remarks are surprising "indeed because in the original application the court had upheld Appellant’s points of opposition as meritorious and dismissed the application. On such basis one cannot fathom the reasons for classifying it as a delay strategy”. Justice Gaongalelwe said on the point of delaying progress, the Appellants had attributed it to the High Court as it delivered its ruling in respect of the first application after five months despite the matter having been brought on urgency basis.
Justice Khan's decision to dismiss the Ministry and PPADB application on condonation was condemned by the judges of the Appeals Court arguing that condonation is a matter of seeking the court’s indulgence and one of its paramount factors is to impart justice to the warring litigants and to the community. "In that regard the important factors to be considered include importance of the case, magnitude of the project and welfare of the community at large. In this matter the project involves provision of water, an essential commodity in a wide area which has suffered inconveniences for some time. Second Respondent (Zhengtai) commenced the works in October 2019 though it was later interrupted by court orders. As a direct result of such interruptions, operations have stalled resulting in immense prejudice to the community," argued the justices.
They added that in such circumstances the court should strike a balance between interests of the parties and those of the community.