State disputes Matsheka’s unlawful detention claim
Mpho Mokwape | Monday April 22, 2024 06:00
In a recent filing where the DIS through the Attorney General is once more seeking further particulars from the former Finance Minister, there has been inconsistency regarding his detention.
According to the DIS, it alleges that Matsheka is trying to open the debate on the issue again as it had already been dealt with by the court last year at the time he had applied for his release.
The spy unit engaged attorney Kgotso Botlhole who is disputing the claim on grounds that the court had determined that Matsheka’s detention for the first 48 hours was lawful therefore, he cannot claim from August 2, 2022 to August 7, 2022.
“The issue of the unlawfulness of Matsheka’s detention for the first 48 hours has been previously interrogated by the court as it expressly determined that the detention was lawful for 48 hours,” he said.
Botlhole argued that consequently the issue of whether the Lobatse MP’s arrest was unlawful has been definitively determined by court, the resultant effect of which is that he is precluded from re-opening the debate on the same issue.
He explained that notwithstanding the court’s findings in Matsheka’s declaration, he has instituted the proceedings and seeks in claim B for damages for an alleged unlawful detention from August 2, 2022 to August 7, 2022 in the sum of P3000 000.00.
The DIS papers stated that in order to properly plead, they require further and better particulars on the quantum of damages beyond the first 48 hours which has not been pleaded with sufficient particularly by Matsheka in order to enable them to properly plead.
“In response to our request for further particulars, it is stated that there was no appeal as to the court’s finding that the first 48 hours of detention were lawful. We seek clarity for quantum of damages beyond the first 48 hours from August 2, 2022,” said Botlhole.
Further, Botlhole said in order to define with greater precision the issues which are to be tried for the avoidance of any doubt, limit the generality of allegations, fill in the picture of the plaintiff’s cause of action and define with greater precision the issues which are to be tried and decided upon Matsheka should provide the DIS with revelant documents.
He also noted that it is a requirement to furnish the party against whom a claim is made with such information as is strictly necessary to determine what tender or payment into court, if any should be made.
On claims of A and B, the DIS sought to know if the Matsheka was doing it as one claim or not.
Matsheka’s claim A and B are as that in Claim A, he has explained that at or about 7pm on August 2, 2022, at Partial, Gaborone, in full view of members of the public and journalists, certain officers in the employ of DIS, Botswana Police Service and support staff of the DIS arrested him. He said the officers who were acting in the normal course and scope of their employment as DIS, police officers, and support staff effected the arrest without a warrant on suspicion that he had committed murder which was "unlawful and wrongful. “DIS, police officers, and DIS support staff respectively had no reasonable grounds to suspect that I had committed the offence of murder or any other offence,” he said. The legislator also said in particular, the DIS officers and its support staff did not have any powers to arrest him for the alleged offence and that the officers had no reasonable grounds to suspect that he had committed an offence under the Intelligence and Security Service Act.
According to claim B it states that following the said unlawful and wrongful arrest, Matsheka pointed out that he was detained at a DIS facility at Sebele in Gaborone and Tlokweng Police Station for a period of August 2 at or about 7pm to August 7, 2022, at or about 4:30pm. He said his detention was at the instance of certain DIS officers and their support staff whose ranks and names he did not know without a warrant and that it was wrongful and unlawful. As a result of the detention he said he suffered damages in the sum of P3, 000, 000.
“Further and better particulars will help in defining with greater precision the issues and shed light if the plaintiff relies on Claim A and B as separate causes of action,” said state.
More on Matsheka’s claims, State also disputed his claim for P8 560 800.00 which emanated from damages allegedly suffered by called company called Fiducia Services he is a shareholder.
State further denied any liability against the said company saying Fiducia was a separate legal personality from Matsheka and that its cause of action if any lies against procuring entities for the alleged unsuccessful bids.
“How then can it reasonably be suggested that the plaintiff has a cause of action against us?” DIS said.
As a result of denial for liability, DIS has raised an exception which is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain the specific cause of action or the specific defence relied upon.
The spy unit argued that as the company is a separate legal personality with capacity to sue or be sued on its name and that by its own publications, it continues to expand its human resource base.
As a result of the exception filing, Matsheka filed a withdrawal of that part of his claim.
He withdrew the claim F in relation to the company in which he had claimed that as a result of the wrongful and unlawful acts of the DIS officers, police officers and support staff, he suffered loss of income in the sum of the said amount.
Meanwhile, Matsheka, also a businessman, raised the stakes from his initial P10,720,000 in general damages he had demanded from DIS, to P19,160,800.
He was arrested on August 2, 202, by DIS officers, its support staff, and members of the Botswana Police Service and taken into custody allegedly without a warrant, detained unlawfully.
In his lawsuit he said that he was treated as a dangerous criminal and as a flight risk, while there were no reasonable grounds for the murder offence he was accused of committing.
“The arrest was effected in bad faith in full view of members of the public and journalists, which were intended to humiliate and injure my feelings. Same was therefore without justifiable cause, malicious, wrongful, unlawful and injurious,” he said.
Matsheka’s legal action is against the government, the Director General of the DIS, Peter Magosi and the Commissioner of Police.
Botlhole Law Group represents state while Matsheka is represented by Bayford & Associates.