02 Jul 2015

 A case in which government is appealing a ruling made by Justice Key Dingake ordering the government to provide free ARVs to a foreign prison inmate is expected to be among those in the roll call of the Court of Appeal today July 3).

This came to light after judge president of the Court of Appeal, Justice Ian Kirby, Tuesday, agreed to consolidate the state appeal case with the other already before the same court, emanating from last year’s similar order made by Justice Bengbame Sechele.

Initially, attorney representing the applicants, Ms Yarona Sharp had filed notice of appeal on an urgent basis but upon the sitting of the court, she applied to file for the consolidation of the matter with the already existing one as both cases were similar. The request was granted after consideration by the opposing attorney.

Meanwhile, since respondent’s lawyer Mr Kabo Motswagole did not oppose the consolidation of the two matters, this worked positively for the applicants because under normal circumstances the hearing was going to be delayed by at least two months.

Ruling on the appeal was therefore anticipated to be delivered during the next session of the Court of Appeal.

Justice Dingake had on June 17, 2015 ruled in favour of Gift Brendon Mwale, a Zimbabwean national, who had approached the court on urgency seeking relief on a number of issues; paramount 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 Minister of Health respectively.

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 is in violation of the equal protection clause of the Botswana Constitution viz Section 3 of the said Constitution.

“That the decision of the 1st, 2nd and 3rd 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.

In the meantime, the reliefs sought from the Appeal Court 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 Sharp further prays 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.

She nevertheless told Justice Kirby that she will not proceed with paragraph two of her grounds of appeal. Ends