Wehlemina “Butterfly” Maswabi’s infamous October 2019 arrest on ‘financing terrorism’ charges reached the country’s apex court this week, this time in a reversal of roles, with the former spy agent suing investigators and state organs for her damaged reputation.
Some of the allegations against Maswabi when she was first dramatically frog-marched before the courts under deafening sirens and heavy police escorts four years ago, were that she was a signatory to a secret account in South Africa into which millions of Pula were stolen from Bank of Botswana. Some of the charges were later withdrawn.
However, after failing to convince the High Court to award her damages to her reputation in the sum of P30 million, she has approached the Court of Appeal.
Maswabi has cited former employee of Directorate of Corruption and Economic Crimes (DCEC) Jako Hubona as the First Respondent, Directorate of Public Prosecutions as 2nd Respondent, DCEC as 3rd Respondent, Directorate of Intelligence and Security Services (DISS) and Botswana Police as 5th Respondent.
Advocate Geoff Budlender challenged many of the High Court decisions especially on the procedure she followed when she launched the suit.
He stated that Hubona went out of his way and made damaging statements in his Affidavit even though he knew that the allegations were false and fabricated, including theft of P10billion from Bank of Botswana.
The contents of his affidavit gave rise to a charge sheet that landed Maswabi in the dock.
Budlender stated that the Affidavit was made after the DCEC had interviewed some Bank of Botswana employees who stated that there was no such amount missing from the Bank.
He said Hubona deliberately lied and that he is liable and therefore should apologize and retract the statements.
He added that the DPP did not exercise due care in drafting the charge sheet; DIS and police played different roles and were also liable.
He said although some of the charges were withdrawn, the statements were never withdrawn and argued further that Maswabi was entitled to right to reputation and dignity and that they were trampled upon by government officials who abused their power by concocting the charges.
However, State Attorney- Sifelani Thapelo called for immediate dismissal of the appeal saying it did not comply with the procedures, rules and regulations of the High Court and those of the Court of Appeal.
He stated that there is no legislation that supported Maswabi’s defamation suit and that she cited wrong people and entities.
Thapelo stated that a public officer cannot be sued when executing his/her official duties, but it is the Attorney General who should be cited.
“The Hubona Affidavit, was deposed by 1st Respondent, quite clearly, in the course of his duties, and in the name of Government of Botswana. There are no defamatory words, therefore, uttered by him in his personal capacity. He is sued entirely on account of actions taken in the name of the Government of Botswana. Therefore, nothing in the provisions relied upon by the Appellant in her Heads of Argument supports the bringing of suits against public officials in their personal capacity for actions taken in their official capacity. The suit against the Attorney General would have sufficed, quite clearly”.
He added that Maswabi did not deliver the Statutory Notice to Hubona, but instead gave it to a certain Mazhani at DCEC offices and addressed to certain people.
“There was further, nothing that emerged from the pleadings to show that the person to whom the notice was delivered was asked, or admonished, to ensure that the 1st Respondent received a copy of the Notice. This therefore means Hubona was not informed about the litigation to prepare himself”.
Thapelo said the proceedings against DPP, DCEC, DIS, and Botswana Police were a nullity since the entities never uttered the words complained of that resulted in the defamation suit.
Maswabi also argued that her constitutional rights to reputation and dignity have been violated by Hubona’s utterances, but Thapelo said she was raising new issues that were never raised at the High Court and therefore should be dismissed.
He said an apology can be suggested where a personal relationship existed between the litigants, but not in the matter in question.
Advocate Budlender appealed to the court not to dismiss the matter on technicalities but should scrutinize the actions of the Respondents and whether they were lawful. Judgment will be handed down on February 17th.
