29 Jun 2015

Justice Ian Kirby of the Court of Appeal will tomorrow (June 30) preside over a case in which the Attorney General is appealing Justice Key Dingake’s judgement on provision of ARVs to foreign inmates.

On June 17, Justice Dingake ruled in favour of Gift Brendon Mwale, a Zimbabwean national, who had approached the court on urgency seeking relief on a number of issues; chief among them to be provided with free ARV or alternatively released from custody.

The respondents in the matter were Attorney General, Commissioner of Prisons and the Minister of Health.

Mwale had stated in his court papers that the decision of the third respondent (minister of health) to deny him the provision of the Highly Active Antiretroviral Therapy (HAART) treatment was in violation of the equal protection clause of the Botswana Constitution viz Section 3 of the said Constitution.

“That the decision of the first, second and third respondents to deny the applicant the provision of HAART is in violation of the non-discrimination clause of the Botswana Constitution viz Section 15 of the said Constitution”, he stated.

The reliefs sought from the Court of Appeal are that the April 23, 2015 Interlocutory Ruling that granted the applicant leave to file the requisite affidavit and or annexures that comply with Order 13 Rule 16 and the June 17, 2015 judgement be set aside.

The state, through its attorney, Ms Yarona Sharp would further pray the court that judgement be entered in favour of the appellants dismissing the respondent’s application; costs of suit; and further and/or alternative relief.

The grounds of appeal are that the trial court erred in granting the interlocutory ruling. It also notes that the judge a quo gravely erred in holding that the applicant is being unfairly discriminated against and that the discrimination is unfair because it serves no legitimate purpose and bears no rationale connection between the differentiation and purpose.

The state further notes that the trial court completely misdirected itself when it held that the discrimination that the applicant has suffered is plainly unlawful because it is not mandated by the Constitution; more particularly Section 15.

“The said court erred in its finding that the applicant has presented a compelling case and ought to succeed in the relief he seeks; and the court a quo did not appreciate the appellants’ pleadings and the evidence adduced before it in stating that it is justified in casu to usurp the powers of the Executive and violated the separation of powers doctrine”, the state would submit.

Mwale, who initially did not have the services of legal counsel, was represented in the matter by attorneys Kabo Motswagole and Friday Leburu. Ends