The Botswana Democratic Party (BDP) parliamentary aspirant for Gaborone South, Meshack Mthimkhulu has issued a notice of intention to sue the Attorney General (AG) following his recent arrest at Mochudi Magistrate’s Court.
In his papers, Mthimkhulu has accused Magistrate Onneile Ntwayapelo of abuse of power by issuing a warrant of arrest for him.
Through his lawyer Ofentse Khumomotse, Mthimkhulu said the Magistrate’s order was not only high-handedly oppressive and made in bad faith, but was also irrational. He has instructed that should the statutory notice expire within 30 days of receipt without any response they will move to the High Court to review the decision of the Magistrate.
“Be further advised that we are equally instructed to cause a report to be placed before the Judicial Service Commission for an investigation of misconduct and abuse of office by the aforesaid magistrate,” reads the notice. This is on account of the fact that unjustifiably oppressive orders, such as the order issued by His Worship, being laced and tainted by bad faith as it was, invariably damage the legitimacy of the judiciary,” Khumomotse wrote.
The notice to issue came about after Mthimkhuku, who is a practising lawyer, said he was held for many hours after his warrant was issued by the Magistrate who, the notice added, clearly arrogated to himself powers he did not have. According to his papers, he had on April 2, 2019 appeared before the Mochudi Magistrate’s Court to attend an ongoing matter in which he was engaged as an attorney. On the same day he, he added, he was to procure a sit down for a separate matter in which he appears as a litigant in his personal capacity, cited therein as a defendant.
He explained that prior to that, he had appeared in court while the plaintiff did not, and in good faith he did not move for dismissal of the plaintiff’s claim against him, but rather sought a different date to enable the plaintiff to appear and move her case.
Unbeknownst to him, when he appeared for argument in the other matter, the plaintiff in the case against him had caused the case to be enrolled.
“When my personal matter was called, and I was not in attendance, His Worship Ntwayapelo, then with greatest indifference, issued a warrant of arrest against me,” he said. He argued that in the circumstances, a proper and condign order would have been one granting judgement in default of appearance and at the very least, once the warrant was issued he ought to have been accorded an opportunity to make representations as to why he should not be incarcerated.