BONELA�s urgent application for contempt of court dismissed
Mpho Mokwape | Thursday April 30, 2015 13:00
The two officials from Ministry of Health (MoH) and Ministry Justice, Defence and Security were cited for allegedly defying a court order delivered last August by Justice Bengbame Sechele that government should provide two Zimbabwean prisoners with free ARVs.
The judge also ordered the government to provide foreign inmates with ARVs for free. At the time of conclusion of the case, the Zimbabweans had been released from prison.
The two former inmates, with the help of BONELA, sued the government for refusing to provide them with free ARVs.
Yesterday at the Gaborone High Court, Rannoane said the applicant had failed to establish urgency on the matter and that they had failed to show that they would not be afforded a substantial redress in due course.
He dismissed the urgency of the application saying it was self created and that BONELA should have been aware that the government was not complying with the court order.
“The applicants said they only became aware that the government was not complying with the order when they were served on April 1, 2015 for stay of execution by the government, I find that very hard to believe as the order have been long issued and they should have known,” he said. Justice Rannoane said the applicants should have followed through to make sure that the government was executing the order but instead they slept on their rights.
“I cannot doubt the truth of this averment. It defies logic that having successfully obtained such an important judgement conferring rights of access of foreign inmates to critical life saving drugs, the applicant simply lost interest and for even months, never bothered to ascertain whether his clients were getting drugs,” he said.BONELA, through their attorneys Tshiamo Rantao and Tefo Gaongalelwe filed the urgent contempt application a few weeks back.
They wanted the matter to be declared urgent in terms of rules relating to procedure and the contempt of court application heard before of the state’s stay of execution.
Rantao had submitted that the two Permanent Secretaries - Shenaaz El-Halabi of Ministry of Health and Segakweng Tsiane of Justice, Defence and Security - be held in contempt of court.
He said the two should be ordered to comply with Sechele’s order adding that BONELA would not want to see senior government officials being embarrassed.
Rantao said the court should ensure that the Attorney General implement the order.
“The honourable court has to stamp its authority for the purposes of compliance,” said Rantao. Rantao had in his argument attacked the state’s application for stay of execution of Sechele’s order saying it is a cynical move made in bad faith.
He said the insistence by the state on financial hardship without providing evidence to court showed bad faith. “Contempt of court application should be viewed with the prism of the fundamental human right to live,” Rantao said. He said BONELA sought leave for compliance in five days and if that does not happen, the two senior officers should be committed to gaol. “It is common cause the order that my learned friends are seeking to have stayed deal with fundamental rights,” he said.
Government legal representation, Yarona Sharp, appearing with Neo Sharp submitted that the applicant did nothing in seven months to execute the order.
“This is very strange,” Neo Sharp said. She challenged the locus standi of BONELA as the applicant. “Whose interest is BONELA serving in this application? Who is BONELA representing? This matter is about seven months old. To say this matter is urgent defeats the purpose of urgency,” she said.
She rejected Rantao’s charge that the state was frustrating justice adding that the application was premature because they have not executed their part. “This matter is afterthought. This matter is a clear abuse of court process. We ask that this matter be dismissed,” she submitted.