Aggrieved DCEC officer, wife lose unlawful detention case
Mompati Tlhankane | Tuesday April 4, 2023 06:00
The couple was suing the Directorate of Intelligence and Security (DIS) and Botswana Police Service (BPS) for (Tsholofelo) Bareetsi’s unlawful arrest and detention in June last year.
Delivering the judgment on the matter on Thursday, Lobatse High Court Judge Matlhogonolo Phuthego said the couple brought the application on urgency, therefore, cannot subsequently be seen dragging their feet towards the application without any justifiable cause.
On June 8, 2022, the couple brought an application against the DIS and the BPS on a certificate of urgency, seeking a rule nisi returnable on a date to be fixed by the court. Pleasure applied her capacity as the lawfully wedded wife of Bareetsi thus interested in his liberty. She also made the application on behalf of their minor children, who were said to have an interest in the safe return of their father.
Pleasure averred, further, that due to the exceptional circumstances that existed, she also deposed to the affidavit on behalf of her husband who could not otherwise do the same as he was being denied access to anyone.
The couple called upon the respondents, the DIS and the BPS, to show cause if any, why an order directing that Bareetsi should forthwith be released from custody cannot be granted.
Amongst others, they wanted an order directing that the DIS and Police furnish information to the court as to whether Bareetsi was under arrest, on what charge he was being arrested for, where he was being detained, and why he was being detained. Touching on the background to the application, Pleasure averred that on June 7, 2022, at around 6:35pm, members of the DIS and Police detained and took into custody her husband, without being shown any warrant of arrest or given any reason for the arrest. Pleasure stated that at the time of her deposing to the affidavit Bareetsi was denied access to legal counsel. She said her husband’s attorney, Martin Dingake, tried to access Bareetsi whilst he was being detained at Urban Police Station in Gaborone, but the same was denied. Further, Bareetsi was later moved to the DIS offices in Sebele with legal access still being denied. The court issued the rule nisi sought by the applicants being the couple, returnable on June 9, 2022, at 2:15pm.
The order was issued on the evening of June 8, 2022. When the parties appeared before the court as scheduled, they filed a handwritten draft consent order which they beseeched the court to make its order. The court caved in and issued that the applicants shall file a supplementary affidavit on/or before June 10, 2022, and shall deliver their replying affidavit on or before June 16, 2022.
However, contrary to the court order, and without leave of court, the applicants only filed their supplementary affidavits on June 13, 2022. It is noteworthy that there was no amended notice of motion filed.
“It is clear that the late filing of their supplementary founding affidavit had a ripple effect on the filing of subsequent court processes, because it had the effect of abridging the timelines within which the subsequent processes were to be filed, thus making it very difficult, if not impossible, for the opponent to file his process within the time dictated by the court order,” Justice Phuthego indicated in his judgment.
Phuthego further indicated that as if the late filing of the supplementary founding affidavit was not enough, the attorneys who purport to represent Bareetsi did not file a power of attorney until the DIS and BPS raised their lack of power of attorney in their answering papers. Phuthego said Bareetsi then, in his quest to cure the omission, sneaked the power of attorney into the record when he filed his replying affidavit, without leave of court.
“At that point, the horse had already bolted. On the strength of Order 4 Rule 1, no attorney should have filed any court papers, including the supplementary founding affidavit, without a power of attorney signed by Bareetsi, more so that when the parties appeared before the court on June 9, 2022, and the court issued the Order that allowed the Bareetsi to file a supplementary founding affidavit he was not in the law enforcement agency’s custody.” Phuthego pointed out that on that account, the founding papers that the couple’s lawyers Dingake Law Partners filed on behalf of Bareetsi without a power of attorney cannot stand. “Logically, the interlocutory application can also not see the light of day as it is grounded on the main application.
Even if Tsholofelo’s (Bareetsi) founding papers were duly accompanied by a power of attorney, it is doubtful that the applicants would be in a position to succeed in getting the reliefs they seek due to the soundness of the point of mootness of the orders sought, advanced by the respondents.
It is common cause that the applicants have not applied for an amendment to the notice of motion that Pleasure had filed on June 8, 2022, in terms of which all that she wanted was immediate release from custody of her husband or production of his body to court, and an order directing that the DIS and BPS furnished information to the court as to whether Tsholofelo (Bareetsi) was under arrest, if so on what charge he was arrested, where he was being detained and why he was being detained,” he highlighted.
Phuthego said the law requires a party who is out of time in the filing of a court process to first apply for, and be granted, a condonation for late filing of that process. He emphasised that were the courts to allow the parties who have matters before them to violate their rules or orders with impunity, there will be chaos in the administration of justice as there will be no predictability in how business before the courts are to run, in terms of the set timelines. He said the orders that the couple seek to be confirmed having become moot and/or Bareetsi having failed to file a power of attorney when he filed his supplementary founding papers, the rule nisi that the court issued on June 8, 2022, is discharged.
Phuthego also ordered that the interlocutory application that was filed by the applicants on June 28, 2022, consequently collapses. He said the couple is to pay the costs of the main and the interlocutory applications jointly and severally, one paying the other to be absolved.