29 Jan 2023

 The investigating officer Mr Jako Hubona in the state case against Ms Welheminah Maswabi cannot be sued for executing official duties.

This was said by state attorney, Mr Sifelani Thapelo when making submissions before Justices Isaac Lesetedi, Singh Walia and Bess Nkabinde of Court of Appeal last week. 

Attoney Thapelo said that the investigating officer acted in the name of the government.

“He is sued entirely on account of actions taken in the name of the government of the Republic of Botswana,” he said when defending a defamation lawsuit appeal instituted by Ms Maswabi known as Butterfly against the officer.

Ms Maswabi had also cited Directors of Public Prosecutions (DPP), Directorate on Corruption and Economic Crime (DCEC), Directorate of Intelligence and Security Services (DIS), Botswana Police Services and Attorney General as respondents respectively.

The lawsuit emanated from charges against Ms Maswabi which covered financing terrorism and false declaration, which the state had withdrawn with liberty to reinstate.According to Mr Thapelo, the investigating officer, Mr Hubona deposed an affidavit before the court in the name of government and there were no defamatory words uttered by him in his personal capacity.

He said the officer never overstepped his official immunity as the affidavit was sworn to in his official capacity and further filed in such capacity, adding that only the Attorney General was liable.

 On the liability of the DPP, DCEC, DIS and Botswana Police Services, Mr Thapelo said they also could not be held liable as they had no employment or principal-agent relationship with Mr Hubona.

He said the appellant alleged that the first respondent was the employee of the DCEC, which was incorrect as the government was his employer hence Mr Thapelo said the appeal must fail.

On the contrary, Advocate Geoff Budlender said when Ms Maswabi applied for bail, Mr Hubona deposed an affidavit in objection, saying he was investigating a case where huge sums of money had been sniffed out of Bank of Botswana and the appellant was involved and was a signatory to various bank accounts where the money was kept.

Further, he said the affidavit by the first respondent was used to formulate a charge sheet which damaged the appellant’s reputation as it was published in the local media and international media.

Advocate Budlender said their case was unique as the affidavit statement were not only false, but were deliberately fabricated and had ruined the appellant’s reputation.

Advocate Mitchel de Beer who acted alongside Advocate Budlender said DPP was liable as it signed a charge sheet based on the first respondent’s statements, adding that the DPP knew that the allegations were false.

Ms Maswabi was appealing a High Court decision, which rejected her P30 million defamation lawsuit against the state organs and Mr Hubona.Last year when dismissing the lawsuit, the then High Court Judge, Justice Mercy Garekwe said the defamation lawsuit was fundamentally bad at law and it could not survive, adding that there were no grounds for filing a lawsuit against an investigative or prosecution authority, for placing allegations, suspicions and accusations on a charge sheet.

 Judgment on the appeal case had been reserved for February 17. ENDS