LOBATSE: Justice Michael Leburu yesterday dismissed an application by Sunday Standard newspaper seeking to subpoena directors of the Directorate on Corruption and Economic Crime (DCEC) to testify in court.
Standard editor, Outsa Mokone and Media Institute of Southern Africa (MISA) wanted the directors to testify on the progress of investigations into a case in which the director general of the Directorate of Intelligence Security Services (DIS), Isaac Kgosi is being investigated for corruption.
The case emanated from another case in which the DCEC had dragged Sunday Standard and Mokone to court seeking permanent interdiction against the newspaper from publishing details of a docket containing information in regard to investigations carried out against Kgosi.
A month ago, MISA Botswana’s attorney in the matter, Tshiamo Rantao, alongside Sunday Standard lawyer, Dick Bayford, moved an application for the calling of two unnamed witnesses before court to give evidence on the status of the investigations undertaken by the DCEC.
The Attorney General (AG) sternly opposed the application, arguing that there was a material dispute of fact with respect to whether investigations against Kgosi have been completed or not.
The respondents were of the view that there was a need to call such witnesses to clarify issues to that effect. In the main application, AG had sought that a final interdict be issued restraining Sunday Standard or any persons who may have access through them from publishing, distributing or disseminating information, material, excerpts from any contents of docket DOC/IF/2011/01166.
The AG sought the interdict against the newspaper on account of the newspaper’s previous publication of part of the content of the docket. Sunday Standard had undertaken to further publish more details from the remainder of the docket. Sunday Standard subsequently filed a counter application seeking declaration that section 44 of the Corruption and Economic Crime Act (Cap 08:05) contradicts section 12 of the Constitution of Botswana.
The newspaper, alongside MISA, who are the friends of the court in the case, also wants the court to strike down Section 44 of the Corruption and Economic Crimes Act (Cap 08:05).
The respondents in their counter application contended that the said section unjustifiably limits press freedom and therefore ought to be struck down, as it is unconstitutional.
In his 19-paged judgement, Leburu said: “The required evidence on the status of investigations is non-dispositive. It cannot conduce to prove or disprove any of the germane issues so raised, and on that score, such required evidence is doomed to fail on the question of relevance and materiality”.
The judge further said: “In the present matter, the required evidence on the status of the investigations cannot conduce to prove or disprove the constitutionality of Section 44 and the requirements for a final interdict. The required evidence is irrelevant to resolution of substantive application and counter application”.
“Having adopted such steadfast, robust and logical approach, it is still in an entrenched and ring-fenced position to unravel the two vexed questions and the two witnesses required.
There is no material dispute of fact, which necessitates the calling of the two witnesses. The interlocutory application is accordingly dismissed with no costs,” Leburu said.