State questions Katlholo’s conduct on Kgosi’s ‘dead file’
The State has questioned the former director general (DG) of Directorate on Corruption and Economic Crime (DCEC), Tymon Katlholo about his conduct after allegedly declaring former spy boss Isaac Kgosi’s file as dead. This followed Kgosi’s threats about toppling the government.
In an application, the Attorney General (AG), the Directorate of Intelligence and Security (DIS) DG Peter Magosi, DIS spokesperson Edward Robert, DIS lead investigator Jet Mafuta and former acting DCEC DG Tshepo Pilane requested for better and further particulars from Katlholo. They want Katlholo to divulge more about the dead file and the steps he took regarding the file.
The former DIS DG Kgosi and military consultancy firm Seleka Springs have been one of the prominent subjects in the file that Katlholo reportedly oversaw during his tenure. But, Katlholo has many times in his court papers alleged that the files were closed before he started duty.
In his court papers, Katlholo, who is battling legal challenges and also seeking P2 million for defamation, has explained that he found Kgosi and Seleka Springs file closed by his predecessor on reasons that there were no prospects of success to establish a case of abuse of office.
However, the State wants Katlholo to indicate exactly when the said file of Kgosi was declared dead and when such information was communicated to DIS boss Magosi and lead investigator Mafuta.
As collective respondents in the lawsuit, they wanted the former corruption busting agency boss to indicate what he did when he took over the DCEC office and ascertain whether the file was dead. Furthermore, the State wants Katlholo to explain his conduct and if he took upon himself to ensure that the file was indeed dead considering Kgosi’s alleged threats.
The State had in its papers requested that Katlholo indicate what steps he took as the DCEC DG to satisfy himself that investigations against both Kgosi and Seleka Springs had been properly conducted and that there was no evidence disclosing any crimes committed either by Kgosi or Seleka Springs. Katlholo was also requested to explain where the files were kept and if they were in his office under lock and key. The State says Magosi was not attributed to any defamatory statements therefore, requests Katlholo to indicate the factual basis for attributing a statement allegedly made by DIS spokesperson Robert to Magosi.
“A reading of the plaintiff’s declaration will clearly reveal that the alleged author of the defamatory words was Robert. There is no allegation that Magosi uttered any words of defamation,” the State said.
The respondents explained that there was no allegation alleging that Robert acted as either an agent or employee of Magosi in which in any event the latter would be vicariously liable for actions of Robert.
According to the State, it is trite in law that in an action for defamation it is not enough to make general allegations, that there must be specificity with respect to words which are said to be defamatory to the plaintiff therefore it is a legitimate request to require a plaintiff to pinpoint the exact words complained of.
Furthermore, the State has submitted that as per Section 24 of the Intelligence and Security Services Act of 2007, officers of the DIS are indemnified from liability in respect of any act or thing done by them in good faith and upon reasonable grounds in the exercise of their duties.
“It follows therefore, that where an officer of the DIS is being sued on the basis that they acted in bad faith and without reasonable grounds then there must be a factual basis for such allegations,” explained the State.
It further explained that under common law, statements made by witnesses whether verbal or in writing during court proceedings are protected by qualified privilege unless if it can be shown that the statement was malicious and where malice is alleged a factual basis has to be produced.
Moreover, the State said Katlholo, in his declaration, alleged that the defamatory words without naming the person(s) who republished the words and their connection to the applicants. The State further pointed out that the former DCEC boss in his entire declaration has failed to specify the words if any uttered by Magosi and Pilane or the basis for imputing the words allegedly uttered by Robert and Mafuta to them.
“It is our position that the furnishing of the information would assist us in establishing whether we have been rightfully cited in the lawsuit proceedings,” stated the respondents.
Also spy agency spokesperson Robert has requested clarity on whether the alleged statement was made by him and to be provided with the audio of the statement as well as the extract from Duma FM’s Facebook page.
The State indicated that clarifying the source of the statement was crucial for Robert as he would be able to establish if, when and under what circumstances the alleged statements were made and by whom.
“This would also assist the court in determining whether the statement emanated from a malicious standpoint or the statement was made in execution of his official duties,” explained the State. In conclusion the State argued that Katlholo’s claim damages of P2m was exorbitant noting that whilst it was not a requirement to particularise general damages, the figure claimed was unprecedented and its way above awards of damages granted by the courts.