Butterfly’s final plea for P30 million ‘compensation’
Innocent Selatlhwa | Monday January 30, 2023 06:00
Maswabi would later seek redress in the form of a P30 million lawsuit. But she failed at the first instance and has now approached the Court of Appeal for an opportunity to be heard by the High Court.
Maswabi is demanding the huge sum from former Directorate on Corruption and Economic Crime (DCEC) investigator Jako Hubona (1st respondent), Director of Public Prosecutions (2nd respondent), DCEC (3rd respondent), Directorate of Intelligence and Security (DIS) as 4th respondent, Botswana Police and Attorney General as 5th and 6th respondents respectively.
She is represented by Mack Bahuma attorneys who have instructed South African advocates Geoff Budlender and Mitchell De Beer while the respondents are represented by attorney Sifelani Thapelo of S. Thapelo Attorneys. The matter was heard before Court of Appeal Justices Lakhvinder Walia, Isaac Lesetedi and Bess Nkabinde
How it began
According to court papers, the DPP alleged in count 2 in the charge sheet that Maswabi had transferred US$ 2 950 000 to Isaac Kgosi who, in turn had allegedly threatened to commit acts of terrorism against the Republic of Botswana. Maswabi was arrested and detained until 22 November 2019, when she was released on bail.
“On 28 October 2019, First respondent being Jako Hubona deposed an affidavit in opposition to a bail application that Maswabi had brought. In this affidavit, he made serious allegations against Maswabi. They included that she had access to and control over bank accounts which contained a vast amount of money allegedly stolen and laundered from the Government and Bank of Botswana (in excess of Botswana’s GDP); that she had transferred US$ 2 950 000 to Isaac Kgosi; that she had a longstanding romantic relationship with Kgosi''.
On the basis of the allegations made by Hubona, Maswabi was denied bail. She was only released on 22 November 2019 after she had launched a second bail application. In her affidavit in support of the application, Maswabi demonstrated that the allegations made by Hubona in his affidavit were false and fabricated, and that the DPP had concealed exculpatory evidence. As a result, the second application was not opposed,” read the papers.
According to her attorneys, Maswabi has been defamed by the serious allegations made against her in the charge sheet and the Hubona affidavit, which were false. Her human dignity has been violated.
“She accordingly instituted action against Hubona (in his person, private and official capacities), the DPP and the remaining respondents (DCEC, DIS, Botswana Police Service and the Attorney General) asserting that the accusations contained in the charge sheet and the Hubona affidavit were unlawfully made and published with the intention to defame her. She also asserts that the accusations were not only false, but deliberately fabricated by Hubona and the DPP, and that they suppressed exculpatory evidence that demonstrated the falsity of the allegations against her,” said Maswabi’s attorneys.
Maswabi seeks the following substantive relief against the respondents jointly and severally (based on the forms of liability):
Declaring that the Hubona affidavit contains false, unlawful and defamatory statements concerning her; declaring that count 2 of the charge sheet affidavit contains false, unlawful and defamatory statements concerning her; directing the respondents to publish an unconditional retraction an apology in respect of the defamatory statements contained in the charge sheet; Interdicting the respondents from publishing further statements that she is involved in financing terrorism, stole and/ or laundered money from the government or Bank of Botswana, and that she has an extra marital relationship with Kgosi; and ordering the respondents pay her damages for P30 000 000.
Hubona and AG filed special pleas. The remaining respondents excepted to the declaration and further particulars filed by Maswabi, contending that they do not disclose a cause of action against them.
The issues raised by respondents include: Whether the required statutory notice was served on Hubona; whether he had standing to be sued; whether interdictory and mandatory relief can be granted against the government in light of section 9 of the State proceedings Act; Whether the remedy of requiring a defamer to apologise for and retract defamatory statements is part of Botswana law; Whether the declaratory and interdictory relief is competent and/ or unduly constrains the DPP’s prosecutorial powers; Whether Maswabi set out the defamatory words complained of in respect of some of the respondents in her pleadings; Whether accusations contained in a charge sheet may form the basis of a defamation action; Whether the DPP, DCEC, DIS and Police Service can be sued in their official capacity in light of section 3 of the State Proceedings Act; and whether Maswabi sufficiently pleaded a defamation claim against the DPP, DCEC, DIS and Police Service for the statements contained in the Hubona affidavit.
All of the exceptions and all but one of the special pleas were referred to argument before Justice Mercy Garekwe in the High Court.
Garekwe upheld all of the special pleas and dismissed the claim against Hubona; upheld the exceptions and dismissed the claim against the DPP, DCEC, DIS and Police Service; held that prayers 2. 3, 4, 5 and 6 are not available to Maswabi against the AG (upholding various special pleas); held that her action is extant against the AG but only in relation to the relief sought in prayers 1 and 7 of her declaration; and directed Maswabi to pay the respondents’ costs on the attorney and own client scale.
The Appeal
Maswabi is now appealing Garekwe’s decision “As we explain below, we respectfully submit that Garekwe erred in upholding the special pleas and exceptions, in dismissing Maswabi’s claim against all the respondents other than the AG, and in ruling that most of the relief she seeks is unavailable to her. Maswabi also appeals against the punitive costs order that was made against her without any apparent basis,” reads Maswabi’s court papers.
They argue that it is important to highlight two matters being that: No evidence was led before the High Court in respect of the matters raised in the special pleas and exceptions.
“We submit that in the case of certain special pleas, they can only be determined after evidence has been led by the parties. This is because the relevant facts are not common cause on the pleadings. To the extent that the High Court upheld the special pleas without hearing evidence to determine the factual dispute, it erred; Second is that the falsity of the allegations and accusations made in the Hubona affidavit in the charge sheet has already been considered by the courts,” they stated.
They further stated that Maswabi previously instituted a review application seeking the setting aside of DPP’s decision to prosecute her. The DPP elected not to file opposing papers and only raised legal points. “In the High Court, Justice Zein Kebonang set aside the DPP’s decision to charge and institute proceedings against Maswabi. Kebonang held that it was clear that there could not have been any reasonable belief, however subjectively held by the DPP that Maswabi had or could have committed the offences she was charged with.
In considering the evidence that had been provided and the record of the decision, Kebonang also held that the only conclusion one reaches is that the DPP abused his office and deliberately set out to pursue a false and malicious prosecution against the Applicant. The Court of Appeal would set aside certain additional orders that Kebonang issued, which would have acquitted Maswabi and referred various persons to their professional bodies. The CoA confirmed the High Court correctly set aside the decision to prosecute Maswabi. The court also did not overturn the High Court’s findings concerning the falsity of the prosecution of Maswabi.
Maswabi’s plea
“For all the reasons, we respectfully submit that the appeal should be upheld. The High Court’s orders and judgment should be set aside and replaced with an order dismissing the respondents’ special pleas and exceptions. The matter should be remitted to the High Court for trial. If, for whatever reason, the Court upholds any of the exceptions, it would be appropriate for Maswabi to be provided with an opportunity to amend her declaration as may be necessary to remove the cause of complaint in terms of Order 20 Rule 17 (3)(b)(ii) of the High Court, and thereafter the matter can proceed to trial".
As to costs, Maswabi’s attorneys holds that if her appeal is successful, she is entitled to her costs in the Court and in the High Court, including the costs of two counsels who were employed.
‘Further, if Maswabi is unsuccessful, no order of costs should be made against her. She seeks to ventilate and vindicate he constitutional rights. Generally courts do not award costs against an unsuccessful litigant seeking to vindicate her constitutional rights against the state in matters of genuine constitutional concern. The court will only award such costs where it finds that the litigation is frivolous or vexations, or that the litigant conducted the litigation with impropriety. There is no basis for such a finding in this matter. In any event, if Maswabi is unsuccessful and costs are awarded against her, the punitive costs order of the High Court provided no reasons at all for mulcting Maswabi with punitive costs, and none would have justified such an order,” they concluded.
On behalf of all the six respondents, Thapelo argued that the Notice of Appeal fails to meet the peremptory requirements of the rules of court. He stated that numerous grounds of Appeal have been raised, which grounds show that the Appellant does not concede the correctness of any part of the judgment.
“The notice of appeal cites ten grounds, each of which is argued in some detail in several sub- paragraphs. The appellant however, seem to raise two additional grounds upon which it is urged that the court a quo erred. The appellant argues that the High Court erred in making findings on certain special pleas without the hearing of evidence on those special sleas. This is yet another ground upon which it is urged that the High Court erred.
The Appellant is not entitled to rely on this ground, as it is not contained in the Notice of Appeal “The appellant shall not, without the leave of Court, urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon terms as the Court may deem just,” he stated.
Thapelo said these decisions were, therefore, not specifically pleaded in the Summons, as specifically establishing the falsity of any allegations made in the Hubona Affidavit. Therefore, in so far as these decisions were not pleaded, they constitute matter that is extraneous to pleadings.
Thapelo concluded by submitting that the court a quo’s findings on the Exceptions and Special Pleas cannot be faulted. “Therefore the appeal must fail with costs. The appellant must be ordered to pay the costs of this appeal, and the costs of the Respondents in the court a quo.