Judgment reserved in foreign inmate’s ARV case

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Judgment has been reserved in a case in which a Zimbabwean inmate currently buying HIV drugs from his pocket wants to get the medicine free from the Botswana government.

Alternatively, Gift Mwale who is currently serving a 10-year sentence for robbery demands to be released so that he can fend for himself and get HIV drugs. Last week, he was ordered by Justice Key Dingake of the Gaborone High Court to back up his case with proof of his eligibility for ARVs by presenting his CD4 count after he argued that he was only left with a month’s supply.  The judge had instructed attorneys representing Mwale who is already on ARV treatment, to file supplementary papers with regard to his CD4 count. However, yesterday on the return date, state counsel, Yarona Sharp countered the supplementary papers saying they prove nothing and they could contain anything. She said the additional papers that were requested from Mwale were not properly filed before court, therefore they should be struck out. “Currently it has not been proven that the applicant has reached the threshold before this court and we further say he has failed to prove his eligibility as according to the treatment guidelines so it is our contention that this application should fail,” she said.  Sharp stated that Mwale was cited on another application before another judge regarding the provisions of Antiretroviral (ARV) drugs by the government. “The applicant was part of the proceedings in another case whose judgment is pending before Judge Terrence Rannoane and we submit that the applicant will too benefit from that judgment,” she said.

Countering Sharp’s submissions, Mwale’s attorneys, Friday Leburu and Kabo Motswagole said their client had no business with the case pending in another court as he was not the applicant but was merely brought in during the proceedings. Motswagole argued that the application for contempt of court regarding the August 22, 2014 order by Justice Bengbame Sechele that ARVs should be given free to eligible foreign inmates had nothing to do with their client.  “My client had no business trying to hold the government in contempt, all that was Botswana Networks in Ethics, Law and HIV/AIDS’ doing and we pray that he not be held for that,” she said.

Leburu added that though they agree with the state counsel that the annexed documents were not filed properly and should be struck out, they still submitted that Mwale was eligible for treatment as he has reached the threshold. He argued that Mwale in his founding affidavit had indicated that he was already on treatment and that his CD4 count was 266, which falls in the eligibility bracket. “He has proven in his court documents that he has reached the threshold, that his CD4 count is below the 350 that is under the guidelines,” he said. 


Mwale’s application comes when foreign inmates living with HIV are in court seeking the government to be held in contempt for defying an order issued by Justice Sechele that they should be provided with free ARV like local prisoners. Sechele had ordered government to provide HIV treatment to Mwale and all foreign inmates who are living with HIV and in need of the life saving treatment.  However the state made an application for stay of execution arguing that it was not sustainable to provide treatment to foreign inmates and that the matter has to be determined at the Court of Appeal in July this year.

Justice Rannoane will deliver judgment on April 29 while Mwale’s fate lies with Justice Dingake’s reserved judgment.

Editor's Comment
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How can this be achieved when there already is little care about the working conditions of those within the private sector employ?For a long time, private sector employees have been neglected by their employers, not because they cannot do better to care for them, but because they take advantage of government's laxity when it comes to protecting and advocating for public sector employees, giving the cue to employers within the private sector...

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