She wanted the court to declare and order that the charge sheet against her as well as Hubona’s affidavit filed in court were false, unlawful, and contained defamatory statements. Maswabi also wanted the cited parties to issue a public apology, a retraction and cease publishing any further defamatory statements and demanded payment of P30m in damages to her reputation. However, presiding over the matter before her recent appointment to the Court of Appeal (CoA) bench, Justice Mercy Garekwe, ruled in favour of the State and dismissed the suit with costs.
Garekwe agreed with the State’s defence that the defamation claim could not hold as the utterances made against Maswabi are justifiable because they were part of legal proceedings before the Court. According to Justice Garekwe, there is no cause of action against an investigative, prosecution authority sustainable on the basis of placing allegations and accusations on a charge sheet. She said the claim is fundamentally bad at law, so it could not survive. Garekwe also agreed with the State’s special plea that the plaintiff failed to prepare a statutory notice in relation to Hubona, (first defendant) in respect of the matter and serve him as dictated by Section 4 of the State Proceedings Act. She stated that there is no basis or cause of action that has been established and that can be sustained against the Director of DPP, Director of DIS and the Botswana Police, as they did not have any work relation with Hubona. “Additionally, the third defendant (DCEC) is not the employer of the first defendant (Hubona) as contended by the Plaintiff,” reads Justice Garekwe’s judgement. According to Justice Garekwe, written notices have to be delivered to the Attorney General in the case of government, while in the case of public officer, it has to be delivered to him or left at his office.
