‘Butterfly’ seeks CoA judicial remedy
Mompati Tlhankane | Monday January 23, 2023 06:00
Maswabi’s appeal comes after the Lobatse High Court dismissed her P30 million suit against the State in 2021.
Codenamed 'Butterfly', Maswabi had launched the defamation suit citing the Directorate on Corruption and Economic Crime (DCEC) lead investigator Jako Hubona, the Director of Public Prosecutions (DPP), the Directorate of Intelligence and Security (DIS), the Botswana Police Service and the Attorney General.
In the suit, Maswabi stated that the respondents made defamatory statements against her by falsely implicating her in the money laundering and financing terrorism offences.
Maswabi was suing Hubona and others after winning the landmark case in September 2021 in which she was charged with financing terrorism, possession of unexplained property and false declaration of a passport.
Justice Zein Kebonang of the Gaborone High Court then ordered that the former DIS agent be discharged and acquitted on all counts. In the dismissed suit which she is now appealing, Maswabi 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. She further demanded payment of P30m in damages to her reputation. Maswabi said the parties had caused enormous damage to her reputation, which ultimately will cause her losses in her career and life.
Presiding judge in the case, who has since been promoted to the CoA bench, Justice Mercy Garekwe then ruled in favour of the State and dismissed the suit with costs. Justice Garekwe then 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 was 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. Justice Garekwe also agreed with the State’s special plea that the plaintiff failed to prepare a statutory notice in relation to Hubona 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 the DPP, the 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,” read 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 a public officer, it has to be delivered to him or left at his office. Justice Garekwe also 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 on 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 alleged 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. Speaking of making her look like a thief, Justice Kebonang when acquitting Maswabi of all the charges said the prosecution was a lie orchestrated from the onset by highly ranked public officers who are accountable only to themselves. “The case against the applicant was a case that never was.
It was a brazen criminal act from those entrusted with public power that should have never been allowed to happen,” Kebonang highlighted in the judgement. Maswabi feels the path of securing justice has been so tortuous and disentangling herself from the evil manipulations of the State has been challenging. As outlined by the court, the trauma of a wrongful arrest and prosecution based deliberately on falsified charges by the State extends over the lifetime of the victim. “Not only can it affect one’s mental health, but can cause depression and other related post-traumatic disorders.
Adaptation to life as an accused person is no doubt difficult and has clear negative psychological effect on the accused person,” further read the Kebonang judgement. The court observed that the prosecution of the applicant was clearly for an ulterior and dishonourable purpose. In this appeal, Maswabi wants a judicial remedy as she seeks to put all this behind her. She wants the highest court in the land to protect her against the damage of a case that falsely impugned her character. The judgement is expected at the end of next month.