SA court rules in favour of DPP
Sharon Mathala | Monday April 3, 2023 06:00
The judgement delivered this week Wednesday has upheld an earlier court order, and directed that the South African government should assist Botswana with its request for information.
According to the judgement by Justice Joseph Raulinga, the South African government even after being given the opportunity to settle the matter out of court “still dilly-dallies and failed to offer a solution to get the matter settled.
They failed to cooperate with the respondent”. The background of the matter is that the Botswana government dragged her neighbour to court for failure and or ignoring to meet their Mutual Legal Assistance (MLA) request.
The government through the office of the Directorate of Public Prosecutions (DPP) had approached South Africa for assistance in the P100 billion Bank of Botswana case otherwise known as the ‘Butterfly’ case.
The case fingered former president Ian Khama, ex-director general of the Directorate of Intelligence and Security (DIS), Isaac Kgosi and now reinstated DIS agent, Welhemina Maswabi commonly known as Butterfly. Whilst Khama and Kgosi were never officially charged, Butterfly was slapped with charges amongst others financing terrorism.
Although the charge was later dropped, the other charges of possession of unexplained property and false declaration of passport were dropped without prejudice. In 2020, the State dropped the charge of financing terrorism because prosecution said it did not have facts to support it. But of this failure, the State blamed the South African government’s reluctance to assist with the MLA. The first MLA request was filed to South Africa on September 25, 2019. Due to not receiving any update, the State filed another request on August 26, 2020. According to the State, the request was followed by a series of follow up emails that fell on deaf ears.
The lack of assistance from the South African government encouraged the State to engage Advocate Gerrie Nel and they filed a mandamus application. A mandamus application is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
When the South Africans also ignored the mandamus application, the State applied to the court to direct the SA government to provide feedback. The application was unopposed and hence the case was ruled in favour of Botswana. After the court order, the SA government applied for the rescission application. “Aggravated by the High Court order, the applicants applied for the rescission of the order. The applicants submit that there is a dispute of facts with regards to how many MLA requests were filed by the respondent, and the extent and frequency that communication was done with the South African central authority,” reads the judgement in part. Arguing its case the South African government said that it did not fail to settle the matter out of court intentionally but explained that they had challenges to “obtain services of a senior counsel to represent them, hence their notice of intent to oppose the mandamus was late”.
The DPP had argued that the South African government was in contempt of court and that they still had not provided any update. According to the judgement delivered this week, the South African courts were still lenient on the South Africans because of the historical good diplomatic relations between the two countries since time immemorial and suggested for an out of court settlement.
The South Africans still dragged their feet to meet with Botswana. With dates stemming from May 2022, the SA government still failed to come to the party. Reading out his judgement, the judge said “The applicants (South African government) failed to demonstrate why the order was erroneously granted. The applicants as much as they tried to settle the matter out of court, they were playing delay tactics, they appointed an investigator and a prosecutor and still failed to provide an update on the developments that the investigator had made.
The respondent (Botswana government) is correct in its submission that there comes a point when litigation must come to an end.” In the end, the courts ruled against SA government in the rescission and so the order of the High Court for the South African government to provide feedback to Botswana stands. Botswana will wait with baited breath for the neighbouring SA government to provide the information, because it will assist them re-register the P100 billion case that was dropped as a result of lack of information they claimed was held by the South Africans.
Meanwhile, back home, in the same matter after almost five years suspension from duty, Butterfly has been reinstated back to work by the spy agency, DIS.