Court dismisses ‘Butterfly’ P30m suit
The Lobatse High Court has dismissed former Directorate of Intelligence and Security (DIS) agent, Welheminah Mphoeng Maswabi’s P30 million suit against the State.
Maswabi, codenamed ‘Butterfly’, had launched a defamation suit citing Directorate on Corruption and Economic Crime (DCEC) lead investigator Jako Hubona, Director of Public Prosecutions (DPP), the DCEC, the DIS, the Botswana Police Services and the Attorney General stating that they made defamatory statements against her by falsely implicating her in money laundering and financing terrorism offences.
She wanted the court to declare and order that the charge sheet against her as well as Hubona’s affidavit filed in court were false, unlawful, and contained defamatory statements.
Maswabi also wanted the cited parties to issue a public apology, a retraction and cease publishing any further defamatory statements and demanded payment of P30m in damages to her reputation.
However, presiding over the matter before her recent appointment to the Court of Appeal (CoA) bench, Justice Mercy Garekwe, ruled in favour of the State and dismissed the suit with costs. Garekwe agreed with the State’s defence that the defamation claim could not hold as the utterances made against Maswabi are justifiable because they were part of legal proceedings before the Court. According to Justice Garekwe, there is no cause of action against an investigative, prosecution authority sustainable on the basis of placing allegations and accusations on a charge sheet. She said the claim is fundamentally bad at law, so it could not survive.
Garekwe also agreed with the State’s special plea that the plaintiff
failed to prepare a statutory notice in relation to Hubona, (first defendant) in respect of the matter and serve him as dictated by Section 4 of the State Proceedings Act.
She stated that there is no basis or cause of action that has been established and that can be sustained against the Director of DPP, Director of DIS and the Botswana Police, as they did not have any work relation with Hubona.
“Additionally, the third defendant (DCEC) is not the employer of the first defendant (Hubona) as contended by the Plaintiff,” reads Justice Garekwe’s judgement.
According to Justice Garekwe, written notices have to be delivered to the Attorney General in the case of government, while in the case of public officer, it has to be delivered to him or left at his office.
Additionally, Justice Garekwe said Hubona ought not to have been cited, as he had no locus standi as he deposed the affidavit in his capacity as a public official.
She said in this case, all actions must be instituted against the Attorney General of behalf of government.“At best, the plaintiff has failed to establish the first defendant’s locus standi.
Moreover, plaintiff failed to disavow the submissions made on behalf of the first defendant that the suit ought to have been filed against the Attorney General as the legal representative of the government of Botswana and not against the first defendant in his personal capacity,” she reasoned.
In the matter, Maswabi was alleging that the deposed affidavit by Hubona containing allegations among others that she was a co-signatory in various bank accounts at several banks held under entities known as Blue Flies company into which large amounts of money were supposedly stolen from Bank of Botswana, were false and defamatory.
Maswabi said the allegations were not only false but were also deliberately fabricated to make her look like a thief.
She also said she was surprised that Hubona made such damning allegations while the Bank of Botswana also denied such transactions of large amounts of money taking place.
Maswabi has denied all the allegations made by the state. The current judgment comes just a month after she was acquitted of all the charges levelled against her which were pending before the court.