07 Aug 2019

Lobatse High Court judge Justice Tebogo Tau on August 6 dismissed with costs an application that Mmegi reporter Tsaone Basimanebotlhe had lodged with the court seeking the release of her cellphone.

Ruling on Basimanebotlhe’s urgent application, which sought a couple of other reliefs, Justice Tau struck out the case on grounds that the applicant had, in bringing her application, failed to comply with the provision to give the respondents a one-month statutory notice as provided for in the State Proceedings Act.

The judge acceded to the respondents’ submission that Section 4 of the act was mandatory and that non-compliance with it would render proceedings a nullity.

She said while the applicant had argued that the requirement to issue a statutory notice in urgent applications was an absurdity and therefore not necessary, it was clear from the provisions of the act that failure to comply with it would be fatal.

The judge stated that rule 12 of the Rules of the High Court also showed that in urgent applications, the normal rules relating to forms, time limits and procedure must be adhered to.

Justice Tau said the authorities that Basimanebotlhe had cited against the need to adhere to the provision on statutory notice were lacking in that applicants thereto instead sought interim interdicts to maintain the status quo pending litigation, whereas she was seeking to stop the execution of a warrant that had been issued against her as well as secure the release of her cellphone.

“As she is not seeking an interim relief pending litigation, the requirements to Section 4 are applicable in this case. She therefore failed to comply with the pre-emptory provisions of Section 4 of the State Proceedings Act,” Justice Tau said.

Basimanebotlhe had approached the court seeking to have the warrant of arrest issued by the Broadhurst Magistrate Court, for search, entry and seizure of her property, declared unlawful. Further, she had sought further that the said warrant be set aside and its execution be immediately stayed.

In addition, she had prayed that the court direct the Commissioner of Police to release her cellphone that had been seized during the search.

The information before court was that on July 12, the respondents had obtained a warrant of search and seizure against Basimanebotlhe, an order that was then executed against the applicant on July 19.

The Attorney General, Magistrate Thandi Baleseng of Broadhurst Magistrate Court and the Commissioner of Police were cited as first, second and third respondents respectively.  ENDS