Former DCEC boss sues govt
Mathambo challenges Masisi’s decision to send him back to the barracks Justice Leburu grants Mathambo leave to correct his affidavit
High Court Judge Michael Leburu has granted former Director General of Directorate on Corruption and Economic Crime ( DCEC) Joseph Mathambo opportunity to amend his founding affidavit in which he is challenging his employment termination at the agency.
Mathambo wanted to make corrections to the effect that he received the letter of termination on the 26th of August 2020 as opposed to the 24th of August 2020 as stated in the affidavit.
In the review application various orders are sought but principally, Mathambo wants the reviewing, correcting and/ or setting aside the decision that President Mokgweetsi Masisi made on 24th of August 2020, directing that he ( Mathambo) revert to the position of Brigadier, on terms and conditions of service of the said rank, upon termination of his secondment as Director General of the DCEC.
In opposing the amendment, the Respondents - Attorney General ( 1st Respondent) and President and Government of Botswana ( 2nd Respondent) submitted that the correction of an affidavit is incompetent and improper in that an affidavit is not a pleading, but sworn evidence, which is incapable of amendments.
According to Justice Leburu Order 32 Rule 1 of the High Court Rules provides the criteria and the legal canopy under which amendments of pleadings is done and regulated.
He said the overarching theme, imbedded in the said Rule is that amendment to pleadings is permissible for the purpose of determining the real controversy between parties.
Case law, he explained, has blended and fortified this theme with the criterion or requirement of prejudice or lack thereof.
He pointed out that the granting or refusal of an application for amendment of a pleading is a matter for the discretion of a Court, which discretion must be exercised judiciously, having regard to all the attendant circumstances.
“It is trite that the main review application was brought as a motion proceeding. In motion proceedings, affidavits filed
serve a dual role of a pleading and evidence.
“On the basis of the aforegoing, I therefore determine that an affidavit, in motion proceedings is capable of being amended, as it constitutes a pleading as well as evidence.
“Such an amendment, it goes without saying, should not run foul to the dictates of Order 32 Rule 1; as amplified by juridical authorities.
“As long as the requested amendment is made in good faith, does not prejudice the other party and it will conduce to the determination of the real issue ( s) in controversy, such an amendment is permissible,” Justice Leburu stated.
The judge indicated that in casu, the real issue between the parties is whether the substantive review application has been brought outside the requisite four months’ time frame.
For such an issue to be resolved, he said it is pertinent that the court ascertains the date upon which the dice or clock started ticking.
“There is commonality and meeting of the minds of the parties with respect to the date of delivery of the letter which is the 26th August 2020. On that basis, no prejudice whatsoever is discernible if the Applicant is permitted to correct the date in casu.
“Once corrected, the real issue in controversy would thus be ripe and opportune for interrogation and resolution. The Applicant is granted leave to correct the date in his founding affidavit to be 26 August 2020,” Judge Leburu ruled.
Justice Leburu said the Respondents contend that the present review application is an irregular step in that it was brought outside the requisite four months period, without leave of the court, after the handing down of the decision sought to be impugned and reviewed.
He stated that in order to decode and decrypt whether this review application was filed out of time, it is critical that he interrogates the meaning of the words ‘ handing down’ as invoked by Order 61 Rule 8 of the Rules of the High Court.
“The ordinary grammatical meaning of the phrase ‘ hand down’ in my view refers to the date on which the decision was announced to the intended recipient.
“In casu, that would be 26 August 2020. Assuming I am wrong in ascribing the definition of ‘ handing down’ to be the date the decision was announced to the recipient, whereas its meaning is the date the decision was made, as posited by the Respondents, such latter definition and proposition, in my view is not logically sustainable.
“The Respondents’ definition is not meritladen in that one cannot be expected to launch and challenge a decision before he/ she is made aware of it. In my view, Order 61 Rule 8, envisages four months from the date on which the impugned decision was brought to the knowledge of an applicant,” Justice Leburu elaborated.
He added that it will be illogical for the clock to start ticking when the decision is only known to the decision maker.
The case comes for status hearing on the 15th of November 2021.