Butterfly gets another shot at 'justice'
Innocent Selatlhwa | Tuesday February 21, 2023 06:00
Maswabi approached the court to seek to vindicate her reputation against alleged defamatory publications made by officials of the state in laying criminal charges against her in October 2019 and an affidavit deposed to the Directorate on Corruption and Economic Crime (DCEC) by Jaco Hubona in resisting her (Butterfly’s) bail application in those criminal proceedings.
Maswabi is demanding a huge sum against Hubona (first respondent), the Director of Public Prosecutions (second respondent), DCEC (third respondent), Directorate of Intelligence and Security (DIS) as fourth respondent, Botswana Police and the Attorney General as fifth and sixth respondents respectively.
She was 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.
Maswabi sought 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; that she has an extramarital relationship with (Isaac) Kgosi; and ordering the respondents to pay her damages for P30,000,000.
After being furnished with further particulars to the declaration, the respondents raised several defences composed of special pleas and pleas on the merits and exceptions. The parties resolved to argue the special pleas and exceptions. It was the decision of the High Court upholding these that have given rise to this appeal.
Six special pleas were raised before the High Court. These were that:
a. The proceedings against the first respondent were fatal due to the appellant's failure to comply with Section 4 of the State Proceedings (Civil Actions by or against Government or Public Officers) Act (Cap. 10:01) (hereinafter referred to, for brevity, simply as 'the State Proceedings Act') requiring the appellant to have given the said respondent at least one month's notice of the intended proceedings against him before the institution of the proceedings;
b. In terms of Section 3 of the State Proceedings Act the first respondent (Hubona), a public officer, did not have locus standi to be sued for acts performed in the name of the government;
c. Prayers 3, 4, 5 and 6 of the Declaration being in the nature of interdicts and orders for specific performance, run foul of the provisions of Section 9 of the State Proceedings Act which prohibits the grant of such orders against the state or public officers, and were incompetent;
d. Prayers 3, 4, and 5 are incompetent, they being based on the delictual remedy of Amende Honourable which no longer form part of our law;
e. The reliefs sought under Prayers 2 and 6 in respect of Count 2 of the criminal charges were now incompetent and academic for the reason that that count has been withdrawn without prejudice, and that to entertain the prayer the court would be usurping the powers of the trial court by interdicting the state from recharging the appellant with Count 2.
At all material times, the first respondent was acting in good faith and he enjoys statutory immunity, under Section 21 of the Corruption and Economic Crime Act, from legal action arising out of the performance of his duties acting in good faith.
The exceptions raised by the respondents were that:
a) The appellant had failed to set out the words alleged to have been used by the second, third, fourth, and fifth respondents which are defamatory of her;
b)The framing of the charge sheet by the second respondent does not constitute a basis for liability on the part of the second respondent;
c)The second, third, fourth, and fifth respondents cannot be vicariously liable for the acts or omissions of the first respondent when they are not his employers;
d)Participation in or supporting investigations as alleged does not in law form a basis for liability for defamation on the part of the respondents.
Having heard arguments from the parties, the High Court upheld all of them.
“The panel of three judges found that the appeal partly succeeds and the order of the court is replaced with the following order: Special pleas a) and b) succeed and the plaintiff’s claim against the first defendant is struck out. Special pleas c), d), and e) are refused. Exception a) is upheld and the plaintiff’s claim arising from the publication of Hubona’s affidavit is struck out. Exception b) is dismissed. Exceptions c) and d) are upheld and the plaintiff’s claims against the second, third, fourth and fifth defendants are struck out,” reads the judgment.
The matter was remitted back to the High Court for case management and continuation in respect of the live claims and such applications for amendments as may be competently made on the upheld exceptions.