Justice Garekwe trashes Butterfly demands
☛ Maswabi filed defamatory suit against Hubona, DPP, DCEC, DIS, Police ☛ Wanted them to apologise and pay P30 million in damages jointly and severally ☛ Judge says the five can’t be sued for defamation except for Attorney General on behalf of Government
High Court Judge Mercy Garekwe has shot down demands put before court by estranged Directorate of Intelligence and Security ( DIS) agent Welheminah Maswabi against DCEC investigator Jako Hubona and four others.
Maswabi, codenamed Butterfly, filed a defamation suit against Hubona ( 1st defendant), Director of Public Prosecution ( DPP) ( 2nd defendant), DCEC ( 3rd defendant), DIS ( 4th defendant) and Botswana Police Services ( 5th defendant).
In the defamation suit she prayed for orders that some parts of Hubona’s affidavit contains false, unlawful and defamatory statements concerning her; and that count 2 of the charge sheet against her dated 17th October 2019 contains false, unlawful and defamatory statements concerning her.
The defendants were then directed to publish a notice in which they unconditionally retract and apologise for the said defamatory statements and that the apology must be published within seven days of the order on various news platforms.
Maswabi demanded that the defendants be interdicted and restrained from publishing any statements that imply that the plaintiff is involved in financing terrorism or stole money from Bank of Botswana or government of Botswana and laundered it through various offshore accounts and that she has an extra marital relationship with Isaac Kgosi.
The lawsuit demanded that defendants should be ordered to pay the plaintiff damages in the sum of P30 million jointly and severally, the one paying the others to be absolved.
After the filing of the declaration by the plaintiff, the defendants filed for further particulars and would later after Maswabi’s answers file Special Pleas for the six of them and an Exception for the 2nd, 3rd, 4th and 5th defendants.
Among others according to the Special Pleas, no statutory notice was given to Hubona nor served on him and he has no locus standi to sue or be sued for acts or omissions done in the name of the government.
This week the Court of Appeal- bound Judge Garekwe in her judgement on Special pleas and exception agreed with the defendants that they are not supposed to be before court except for the Attorney General who appears in his representative capacity as the statutory legal representative of the government of Botswana.
She said Maswabi’s point of departure is in her argument that there is no requirement in terms of Section 4 of the State Proceedings Act for the statutory notice to be addressed to the public officer. That, in any event, the notice in the instant case, ‘ was delivered to Hubona’s office and left with his colleague who accepted service on his behalf.
“The argument by the plaintiff is unsustainable and borders on disingenuity for a number of reasons. It is difficult to understand the essence of the plaintiff ’ s argument more so when one pays particular attention to the statutory notice in question.
“Not only is the said notice not addressed to the 1st defendant, the same way it is addressed to the rest of the defendants, it demands specific actions to be undertaken by the addresses.
“Therefore, and in so far as this special plea is concerned, the plaintiff failed to prepare a statutory notice in relation to the 1st defendant in respect of the matter at hand and serve same on him as dictated by Section 4 of the State Proceedings Act,” the judge said.
On the argument that Maswabi cited Hubona in his ‘ alternative capacities’, Judge Garekwe found:
“That is, that the 1st defendant deposed to the Hubona affidavit in his official and/ or private capacity. That it is up to the 1st defendant to indicate in what capacity he deposed to the affidavit. I am at pains to appreciate the import of the plaintiff ’ s submission.
“The submission is at best absurd for the plaintiff appears to be groping in the dark as to what it is she founds the 1st defendant’s locus standi on. A litigant cannot rush to court, citing a party without any level of appreciation of what it is she founds the cited party’s locus standi on.” The judge added that this argument is not just disingenuous but lacking in merit for the pleadings filed before court by the plaintiff point to the fact that plaintiff is in fact aware in what capacity Hubona deposed the affidavit.
The judge indicated that there is no logical reason to have cited Hubona or any of the defendants, save when they fall within the exceptions to the general rule ( which is not the plaintiff’s contention or the case in the present matter).
“In the result, the special plea ought to succeed and I so hold and I must similarly mention that this special plea on its own is sufficient for the court to dismiss the defamation action against the 1st defendant,” Judge Garekwe said.
Judge Garekwe explained that the contention that the DPP used the Hubona affidavit to formulate the charge sheet is untenable. According to the judge, the Hubona affidavit came after charges were preferred against Maswabi and following her arrest and arraignment and remand.
She said it was following her arraignment that Maswabi filed the first bail application which was opposed by the DPP. The judge pointed out that to therefore contend that the Hubona affidavit informed the formulation of the charge sheet is baseless.
Justice Garekwe said as the defendants have illustrated in their heads of argument, the manner in which Maswabi resolved to DPP, DCEC, DIS and Botswana Police when no statements or words uttered by them have been pleaded and attributed to them in the declaration, one wonders why, if there was a task force that was formed to carry out the investigations, all the members of such task force have not been disclosed and cited as parties to the proceedings.
She said the manner in which Maswabi has pleaded her case, falls way short of disclosing a cause for action against DPP, DCEC, DIS and Botswana police.
“This is a clear case where, when one has no regard to the declaration and all the supporting documents, it is clear that no cause of action has been established against the 2nd through 5th defendants.
“Save for boldly stating that these entities supported the investigation, it has not been specifically pleaded how it is alleged they defamed the plaintiff. There is no cause of action against an investigative, or prosecution authority sustainable on the basis of pleading allegations, suspicions and accusations on a charge sheet.
“The claim is fundamentally bad at law, and cannot survive. There is no cause of action known to our law based on supporting criminal investigation. To add to the above list the plaintiff has cited the wrong litigants. Her suit ought to have cited only the Attorney General and none of the first five defendants,” Judge Garekwe ruled.
Judge Garekwe said Maswabi’s action is as such only extent as against the Attorney General but only in respect of prayers for declaring some statements in Hubona’s affidavit defamatory and demand for damages in the sum of P30 million.