I am just an employee –Magosi

Mpho Mokwape | Monday May 5, 2025 06:00

The spy chief responding to Katlholo to the claim that he is responsible for statements made by DIS spokesperson, Edward Robert and lead investigator Jet Mafuta saying he is not liable for their acts.

“It is the contention that I cannot be vicariously liable for the acts or omissions of Robert and Mafuta when I am not their employer,” he said.

In the heads of argument Magosi through the attorney, Sifelani Thapelo explained that it is settled and very trite, that in order for vicarious liability to attach to a defendant for the actions of another, an employer-employee relationship must subsist between the parties.

(In law, vicarious liability means a person (typically an employer) is held responsible for the wrongful acts of another person (typically an employee) who is acting within the scope of their employment. This responsibility arises, not from the initial person's own actions, but from their control and influence over the employee.)

In court papers Magosi explained that the doctrine of vicarious liability lays down that an employer is vicariously liable for all wrongs committed by his or her employees (who are not independent contractors) when they are acting in the course off and within the scope of their employment at the time the wrongs were committed.

He pointed out that Section 2 (1) of the Public Service Act, Act No 30 of 2008 defines 'employer' to mean the Government in respect of all of its officers except members of the Botswana Defence Force, the Botswana Police Service, the Local Police Service and the Prison Service.

That it also defines 'public officer' to mean 'a person holding or acting in any public office and being an employee to which this Act applies.'

“It follows from the above that officers of the Directorate of Intelligence and Security Services are public officers employed by the Government of Botswana, Magosi is not an employer and consequently it cannot be held vicariously liable for the acts or omissions of officers assigned to it,” reads the court papers.

Magosi said the proper defendant is the government which is the employer and that him being the director general of DIS is not an employer of officers assigned to the spy unit.

He argued that Katlholo’s case proceeded against the wrong of the defendants mentioned therefore they are not employees his employees but those of the government.

“In the result, it is submitted that no cause of action can be sustained, and no liability supported, on the part of DIS and Magosi. This exception must, therefore, succeed on this ground and the plaintiff's case be dismissed with costs,” he said.

On special pleas raised by the defendants against Katlholo’s claim, according to heads of argument, Katlholo's cause of action arises out of acts allegedly by Robert and Mafuta in the discharge of their duties as public officers.

That the plaintiff is enjoined by Section 4 of State Proceedings (Civil Actions by and Against Government and Public Officials)to give notice of any action and the substance thereof to Robert and Mafuta at least 30 days before the commencement of the said action.

“No such notice was given to them. The plaintiff's summons was neither addressed to nor served on them. Section 4 of the State Proceedings Act provides, in peremptory language, for service of a notice upon a public officer by a party who intends to institute a suit against such public officer in respect of any act done, or purporting to be done, by such public officer in his official capacity,” read the documents.

The defendants submitted that until the expiry of thirty days after the giving of such notice, no suit against such officer is competent as Section 4 requires that notice of intention to sue a public officer must be 'delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims.'

The attorney pointed out that in the case at bar, Katlholo addressed, on the March 23, 2023, a notice to the AG and that it was clear from the Notice, which is filed of record, that Robert and Mafuta were not the addressees of the Notice.

“There was, therefore, no statutory notice delivered to the 3rd and 4th defendants, as required by law. It is submitted that Section 4 is explicit and mandatory, and admits of no implications or exceptions. The language of this section is imperative and absolutely debars a court from entertaining a suit instituted without compliance with its provisions. If the provisions of the section are not complied with, the suit must be rejected,” they argued.

Furthermore, the papers revealed that it has become settled in Botswana that public officers ought not to be cited or sued personally or officially for wrongs alleged to have been committed while acting in furtherance of their duties.

“The rationale for this is the theory of official immunity, which postulates that public officers should not face personal felly exposure for doing their jobs. Official immunity is not just a defense to liability; it also confers upon public officers’ complete immunity from suit,” argued the defendants.

They emphasised that therefore an action against any public officer must be brought against the Attorney General, in those cases the attorney general must assume all reasonable legal fees incurred by the officer when the officer performed his duties without malicious intent.

“It is submitted that this is the law as set out in the State Proceedings Act, and various judicial pronouncements in Botswana. Jurisdictions the world over accept that there is a public interest in allowing public officials to carry out their duties without constant threat of legal action for every action or omission made,” said the attorney.

'It must follow, therefore, that the legal position is that save where a law with provisions expressly relating to the citation of public officers in litigation provides for such citation, and in clear words, public officers are not to be cited in litigation connected with the exercise of their duty', he further said.

Robert and Mafuta stated that they were at all material times acting in the name of and on behalf of the government of Botswana and that in the circumstances the proper defendant should be the Attorney General and no one else.

Moreover, the heads of argument submitted that Robert and Mafuta do not have the right to sue or be sued for acts or omissions done in the name of the Government.

In conclusion, the defendants said therefore, the present suit for Katlholo is fatally flawed, and stands to be struck off the roll with costs, or else dismissed, with costs.