AG loses against fired DIS Deputy DG

Mpho Mokwape | Tuesday July 30, 2024 09:39

Badubi at the time he was fired on February 20, 2023 was accused and found guilty of security breach. He and three others were accused of leaking President Mokgweetsi Masisi’s security vehicles. He later filed a review application to set aside the decision of Tlamelo Ngakane who was acting DG of DIS at the time and had signed the letter that fired him. Badubi’s review application forced AG and Ngakane to file an interlocutory application trying to stop the application. When dismissing the application, Justice Leburu said Badubi brought the review application within the structural dictates and sphere of operation of rules of court. “Put differently, the application was brought within the applicable four months period,” he said. Leburu explained that the court has a duty to shy away from submitting to the constraining bind of a narrower, unfair, unreasonable and arduous interpretation, in its quest to dispense substantive justice. “On that score, the word 'brought' used in Rule 8, simply means filing with the Court. It is only after it has been filed that delivery to the respondent ensues, as envisaged by Rule 1 thereof. The computation of time therefore, starts with the date of becoming aware of the impugned decision and ends with the date of filing,” he said. Justice Leburu emphasised that in his judgment, Rules 1 and 8 of Order 61 luminously and without doubt, are associable signifiers of how a review application is to be brought (Rule 8) and subsequently delivered to the decision maker (Rule 1). He pointed out that the said rules outline two distinct processes, for purposes of computing the four months requisite period and that if the word 'brought' as used in Rule 8 was meant to envisage delivery of the review application to the decision maker, the legislature, in its usual wisdom, could have gone further and used the phrase 'brought' and delivered.' “I therefore, do not subscribe to nor embrace the applicants’ submission that it meant filing and delivery of such a review application onto the respondent. If the court was to adopt the reasoning and logic of the two applicants, to the effect that 'brought' connotes filing and delivery, then it will mean that the respondent would have filed his review application out of time, and thus non-suiting him, unless an application for leave to bring such late review application was firstly filed,” Leburu said. He added that access to substantive justice, should, as far as possible, be promoted, rather than the placing of procedural obstacles to the achievement of a just and efficient dispensation of substantive justice, as promised and ordained by the hallowed and over-arching ethos and epithets of rules of court. Meanwhile, the interlocutory application by AG and Ngakane was founded and riveted on two points, namely, the alleged failure to serve the decision maker in the review application, being Ngakane, and the alleged failure to file and serve him with the review application within four months after the date of his decision, in breach of rules of High Court.

AG's case

According to Ngakane, as a public officer whose decision to dismiss Badubi is under scrutiny, he said he was never served with a statutory notice, in terms of Section 4 of the State Proceedings Act, prior to the bringing of the review application by Badubi and therefore, that the review application is invalid and ought to be struck out with costs. It was further submitted by him that the provisions of Section 4 referenced above are peremptory and lastly, that he has not waived his right to be served with the requisite statutory notice.

Review out of time

It was AG's case that Badubi is time barred in bringing the review application and should therefore, have sought leave of the court before bringing the review application. AG had submitted that in the absence of leave being granted by court, the review application ought to be struck out as it was brought outside the requisite four months, after becoming aware of the impugned decision. According to the applicants, the decision they sought to be reviewed and set aside, in the main review application, came to the respondent's knowledge on 21 February 2023. The review application was then filed on 16 June 2023. “Such review application was only served on Ngakane on July 24, 2023. Stemming therefrom, it was submitted by the applicants that the key date, when computing the said four months period, is the date of 19 service of the review application on the decision maker, that is to say, July 24, 2023. It was argued by the applicants that until such time that the decision maker (Ngakane) has been served, no review proceedings were brought against such a decision,” argued AG.

Fired Badubi's case

He has conceded that he did not serve Ngakane with a statutory notice and avers that despite such non-service, he was at all material times, aware or had notice of the matter before court, as evidenced by his notice of opposition to the review application, which was filed with court. In amplification, he submitted that the purpose or mischief of the requisite statutory notice had been achieved in that Ngakane had knowledge of the filed review application, and therefore, no prejudice thereof was suffered. Badubi submitted that Ngakane considered the review application and that he took proactive steps pointing to his intention to oppose the review application, that he has briefed attorneys to oppose the review application and further that his attorneys, in their letter reproduced above, even mentioned that he is expected to produce a record of proceedings. Badubi’s woes began in 2021 when he and three others were accused of leaking President Mokgweetsi Masisi’s security vehicles. The details of that were splashed all over social media and exposed to the public. The security breach involves leakage of classified information regarding the President’s armoured vehicles even before they arrived in the country. In the matter, the DIS had decided to purchase the vehicles after it received intelligence threats to the First Citizen’s life in an operation led by the Deputy DG operations, Badubi. The background of the matter is that sometime in January 2021, Badubi received a video clip from one Henrico Van Wyk from South Africa via WhatsApp on the progress of shipment of the President’s vehicles. The video, Badubi says he only forwarded to his boss, DIS Director General (DG) Peter Magosi, detailing what happened. Badubi states, “...in accordance with practice to constantly brief and update the DG on the project, I appropriately sent the same video clip to the complainant (Magosi) on January 18, 2021, at around 10:03am via WhatsApp using my official cellphone,” Badubi stated.

To his surprise, Magosi’s second in command further states that sometime in February 2021, he was called by his senior and was suspended for leaking the video to Kgosi and social media. “I wish to state that on 10th February 2021 the DIS DG Brigadier (Retired) Magosi called me to his office and informed me that after meeting President Masisi regarding leaked classified information, he took the decision to suspend me from office on suspicion that I have leaked a video clip on the newly procured VVIP vehicles,” he said. He continues: “I wish to state further that this was the first time I heard of leaked information on VVIP vehicles and it was coming from the Director General. I had no idea of any leakage and I did not understand the allegations, which Director-General levelled against me.” Following that, an investigation against Badubi and three others ensued, Mmegi can further reveal that the investigating officer in the President’s armoured vehicles leak was Dr Oduetse Koboto. Koboto had mentioned that his mandate was to conduct a general enquiry on leaked sensitive information to come up with recommendations for the DIS to prevent such incidents in the future. The DIS however, found Badubi guilty and recommended for his dismissal from work to the Office of the Permanent Secretary to the President (PSP).