Govt loses in ARV case- again
Mpho Mokwape | Wednesday May 6, 2015 18:00
Justice Terrence Rannoane has dismissed another case in which the government countered the contempt of court application by Botswana Network on Ethics, Law and HIV/AIDS (BONELA) with an application for stay of execution. BONELA had received the same result from Rannoane a week before on a related case.
When dismissing the application last week, Rannoane noted the case was only motivated by one foreign inmate, Gift Mwale, who had taken the government to court for failing to comply with Judge Bengbame Sechele’s court order.
He said the urgent application for stay of execution was only done in bad faith and that it was self created.
“It has been seven months since the order was delivered yet the government did nothing not even to comply with it, now that one foreign inmate decides to bring them to court, they make this application, it is only motivated and done out of spite,” he said.
Rannoane said there was no urgency on the matter especially that the government have been sitting on it for long and only decided to spring into action because of Mwale’s application.
“In my opinion the court order sought to be stayed has been in force for long and the applicants were aware of this fact. Any urgency perceived to exist in the matter is therefore self-created. The applicant has failed to prove circumstances that render the matter urgent,” he said.
Government had made an urgent application too wanting Rannoane to stay the execution of provision of Antiretroviral therapy to foreign inmates.
The position of the government was that it would suffer financial hardships and prejudice if it were forced to provide ARV therapy to foreign prisoners.
Attorney General, represented by attorneys Neo Sharp and Yarona Sharp, told the Gaborone High Court that the undertaking was not sustainable.
On August 22, 2014 Justice Bengbame Sechele ordered the government to provide free ARVs to two former Zimbabwean prisoners and other foreign inmates who qualified under Botswana’s treatment guidelines.
Neo Sharp had argued that the conduct of the respondent, BONELA was to let the matter be finalised during the July 2015 Court of Appeal session.
“Between now and July is three months. The Court of Appeal is the one to determine this matter. On the prospects of success, we have listed grounds of appeal that have been left for determination at the Court of Appeal. We have prospects of success,” she said.
She buttressed that the stay of execution application remained unopposed as they received an unfilled documents.
Sharp further said the conduct of the respondent was the one that said they did not have a problem with a stay of execution. She pleaded with court to reduce the immense prejudice on the part of the applicant. She said the state would not have redress in future if the application was not stayed.
However BONELA’s lawyers Tshiamo Rantao and Tefo Gaongalelwe opposed the AG’s urgent application. Rantao said they have affidavits of service in proof thereof. “They were served on the 7th April, 2015. We served the answering affidavit and had not been replied. It is not correct for them to tell the court that they were not served,” said Rantao.
Rantao implored Rannowane to treat the application as a constitutional matter of national importance. He also argued that the matter was not urgent adding that the AG should have come to court earlier. “You cannot create your own urgency, the urgency in this case is self created. There is no suggestion at all that the applicants were not aware of the order of 22nd August, 2014.”
He cited a contempt of court application before Justice Key Dingake involving a non-citizen, Mwale who wanted the government to provide him with free ARVs or squash his sentence for him to find his own drugs.
Rantao said the AG came to court on the present matter because of the application before Dingake, seven months down the line. “For the last seven months they were under the obligation to implement Judge Sechele’s order.” He submitted that the case should be treated like any normal case before the court.
Rantao said the mere fact that the appeal has been noted and might be heard in July was not good enough. He added that the applicants have failed to demonstrate that the balance of probability lied on their favour.
Rantao dismissed the arguments about the financial implication of supplying ARVs to foreign inmates. He said there was no single figure referred to in Pula terms in the AG’s papers. He said the court has not been shown that there would be economic hardship if ARVs were provided to foreign prisoners.