Seizure of Moalosi�s laptop lawful � state
Correspondent | Friday June 17, 2016 14:45
The BCP activist Motlhaleemang Moalosi’s attorney Owen Nsala had approached the court on urgency to order that the seizure of his laptop by detective superintendent Sergeant Marapo of Botswana Police Service and the Attorney General (AG), cited as first and second respondents respectively, is unlawful and without any basis.
State attorney Wada Nfila, argued that the applicant’s application is incomplete and not in compliance with Section 61 of the Police Act since he did not give the police a notice to sue two months before he took the matter to court.
“We submit that the fact that the matter was brought on urgency does not exclude the applicant to comply with the police act. Also an action cannot be brought against government without 30 days notice…” said Nfila, further explaining that the applicant is not seeking an interim relief but final orders.
Nfila said that in terms of Section 57 of the Criminal Procedures and Evidence Act, the police are empowered to seize anything that they deem fit to carry out their investigations until otherwise advised by the director of Directorate of Public Prosecutions (DPP).
“This matter is not urgent because the applicant has not made any averments to show that the matter is urgent. The respondents said that they seized the applicant’s laptop because if he continued keeping it, it would affect their future investigations.”
“If the court rules in favour of the applicant, the courts would be inundated with urgent application of suspects who would want the police to return their seized properties which would in turn defeat the interest of justice. Society would also be adversely affected,” said Nfila. The applicant, Nfila said, is pursuing a Masters of Science Degree in Computer Science at the Botswana International University of Science and Technology (BIUST) but he does not explain how he would suffer if the police keep his laptop.
“…If he is a computer wizard, common sense would dictate that he would have back up information that he needs for his studies… He has not shown that the qualifications requirements of the course he is pursuing would be raised in future which action would prevent him to complete his course if his computer is not returned to him…” said Nfila.
In response, Nsala said that the matter is urgent because the applicant has sufficiently demonstrated that in his founding affidavit.
“The applicant said that his research project is solely based in the information that is based in his computer. In as far as we are concerned, he has no back up information. If he had back up information, this exercise would be meaningless since he would have used that back up information to complete his project and the state would have suffered no irreparable harm,” said Nsala. Nsala said contrary to Nfila’s argument, the applicant makes a positive averment that he is pursuing Msc Computer Science at BIUST “which the respondents totally deny although they have agreed to that at paragraph 60 of our founding affidavit. The applicant in his affidavit has shown that the absence of his computer is paramount to his studies…This matter is therefore urgent as annexure shows that there is a position of research assistant that the applicant would assume once he completes his course within the stipulated time frame of one year or below”.
“The Court of Appeal has ruled that the right to education should not be trampled upon by anyone without the scrutiny of the courts. We therefore, submit that the applicant would suffer irreparable harm if his laptop is not returned to him,” Nsala said.
He added that the DPP is even right now not in possession of any criminal docket implicating Moalosi in any criminal activity.
In any event, Nsala said they submit that the applicant has clearly demonstrated that his case is urgent and has exceptional circumstances warranting such urgency. to section 10 of the constitution which says that litigants should be heard within reasonable time…” said Nsala.
The case continues.