Newly Promoted high court judge, Mercy Garekwe on Tuesday set DCEC investigator Jako Hubona and others off the hook from a defamation suit brought against them by suspended spy agent Wilheminah Maswabi, codenamed Butterfly.
When dealing with the entities cited in the defamation suit Judge Garekwe said that they cannot be part of the defamation suit simply because they are public officers, departments or institutions of the Botswana Government and therefore should not be sued in their personal capacity.
“As a result, the right party to have cited in these proceedings was the attorney general and no one of the first five defendants. This issue makes a mockery of the attempts by the plaintiff (Butterfly) to hold the 2nd through to 5th defendant liable for actions of the 1st defendant when they are not employers of the 1st defendant but the Government of Botswana is. In my judgment therefore the manner in which the plaintiff has pleaded her case falls way short of disclosing a cause of action against the 2nd through to the 5th defendants,” the judgment reads in part.
Further, the judge said that Butterfly had failed to set out words alleged to have been used DCEC, DPP, DIS, and BPS) which are defamatory to her, she only relied on the Hubona affidavit.
Butterfly had dragged the Directorate on Economic Corruption and Economic Crime (DCEC) investigator Jako Hubona, The Director of Public Prosecutions (DPP), DCEC, The Botswana Police Service, and the Attorney General (AG) to court demanding compensation to the tune of P 30 000 000 in damages to her reputation.
She also wanted the court to direct the defendants to publish a notice in which they unconditionally retract and apologise for the said defamatory statements. According to her court documents Butterfly wanted the apology on the news bulletin of BTV, CNN, and ENCA, as well as an apology on prominent pages of local and international newspapers.
The defamation suit relates to criminal charges against the spy agent where she was accused of financing terrorism, false declaration of passport as well as possession of unexplained property.
Butterfly was arrested back in 2019 and spent almost a month in prison before being granted bail.
Her case was deemed high profile as it also fingered former President Ian Khama, former DIS boss Isaac Kgosi, South African Businesswoman Bridgette Motsepe-Radebe, although they were never formally charged.
The case has since been withdrawn with the option to reinstate by the state.
This week Judge Garekwe ruled that Butterfly could not base her defamation suit only on a charge sheet against her.
In the 66-page long judgment, the Judge states in part, “An action for defamation cannot be founded on the formulation of a charge sheet or indictment owing to the nature and purpose of such document. I agree with the defendant’s submission on this score. For if this court was to conclude that a defamation action can be founded on the mere issuance of formulation of a charge sheet or indictment without more, more so at the stage at which the criminal proceedings preferred against the plaintiff were when this suit was initiated, the state will be constrained, by virtue of holding such a decision, to prefer any criminal charges against anyone, as whoever will be charged will rush to court and file a defamation suit.”
In the end, the court dismissed the defamation suit against Hubona, DPP, DIS, DCEC, and BPS but upheld Butterfly’s actions with regard to the Attorney General’s chambers.
