Duo want Kgosi, Makgophe jailed for contempt
Bame Piet | Friday May 5, 2017 14:55
Thulaganyo Boiditswe and Tshepo Makgalemele state in the Court papers that Kgosi has denied them a business opportunity of a lifetime after they secured a franchise deal with South Africa-based Sparkling Auto Care.
The duo are directors of Kgang tsa Rona (Pty) LTD t/a Sparkling Auto Care. They claim that they were planning to operate Sparkling Auto Care carwash at Airport Junction Mall in Gaborone.
The respondents are the Attorney General, Kgosi and Commissioner of Police, Keabetswe Makgophe. Boiditswe and Makgalemele are demanding compensation in the sum of P16 million for lost business and unlawful detention.
The case emanated from a 2012 arrest and detention of the duo on suspicions that they were trying to defraud CEDA of P1.6million and were detained for two days.
The duo say between August 2 – 4, 2012 they were arrested and temporarily detained at DISS Sebele Station before being moved to Broadhurst and Mogoditshane Police Stations where they were interrogated, photographed and fingerprinted.
They say they lost a business opportunity as CEDA was in the process of disbursing the funds to enable them to open the upmarket car wash.
Their attorney, Lyndon Mothusi said that during the detentions, the security agents searched Boiditswe’s vehicle and confiscated his laptop, trading licence and other documents. The police then ordered them never to set foot near Sparkling Auto Care again.
“Plaintiffs were held in ridicule and contempt as everything lacing the false and unsubstantial premise of Second Respondent officers’ public arrest at Airport Junction mall and surplusage detentions, abusive interrogation, photographing and fingerprinting.
It equated to mere surplusage, since onus on proving their truth lay with the Second Respondent, as presumption of innocence as the yardstick of every citizen’s rights entrenched towards every citizen under Section 18 of the Constitution of Botswana.”
The duo approached the High Court to challenge their arrest and subsequent detentions in early 2016. In response, the Attorney General stated that the arrest was to enable the police to conduct investigations on the alleged commission of forgery.
“The second and third Plaintiffs arrest and detention were therefore lawful, justifiable and reasonable. Defendants deny that the second and third Plaintiffs were subjected to abusive and relentless interrogation, photographing nor fingerprinting while in detention,” the AG says, dismissing the application.
The duo also want Makgophe to be detained for what they call unlawful interrogation by security agents as he has confirmed that Kgosi was acting on his behalf. The duo were arrested in August 2012 on suspicion of fraud in connection with an application for a loan from the CEDA to finance their business. The matter was registered with the Court.
They wanted the Court to declare that: “second and third Respondents’ agents and/or officials were wilful in actions as they were privy to the registration of the matter before Court and same was done outside Counsel’s, endowed with power of attorney, knowledge or consent”.
The contention of the duo is that on April 19, 2017, DISS agents and plain-clothes police officers called them to the Serious Crime Offices in Kgale Mews where they were interrogated on the matter by about 10 officers.
In an application before Justice Jennifer Dube, the duo demand criminal proceedings to be instituted against the officers who called them for a meeting on April 19, as it was in contempt of court.
“The gravamen of this application is that the second and third Defendants were clearly and palpably influencing the direction of the evidence to be presented.
The unsure footedness of the Defendants should be explained and only allowed for by production of an interim order that empowered them to do so from the Honourable Court,” they argued. The applicants further argued that they were never charged with any offence.
In his replying affidavit, Kgosi dismissed the delayed Court case and application saying that the applicants have not demonstrated whether the nature of their businesses was such that they were always abroad to disable their Court case to progress.
“Nothing is said of the attorney’s efforts to engage them over the filing of declaration. In light of the above, I can conclusively state that their failure to file the declaration within time was a deliberate act and I reject the reasons being advanced, as they are mere afterthought.” He said they have not shown seriousness in pursuing the matter and they are wasting Court’s time.
“I deny that the Plaintiffs have a bona-fide claim against the Defendants as their arrest and subsequent detention was under the circumstances justified and or lawful on the basis that they were reasonably suspected of having committed offences related to forgery and were being held to allow investigations to take course,” he said in affidavit of October 2016.
Makgophe confirmed the contents of Kgosi’s affidavit as true and correct and within his personal knowledge and believe.
“I confirm that I have read the Founding Affidavit of Isaac Seabelo Kgosi filed on 11th August 2016 and confirm the contents thereof to the extent that they relate to myself and/or the office of Commissioner of Police,” Makgophe said in his affidavit.
The AG is defending the Respondents.