AfriForum and the DPP Botswana succeed in the mandamus application     

The civil rights organisation AfriForum achieved success in the mandamus application brought against the Department of Justice. The unit filed a mandamus application by order of the Director of Public Prosecution (DPP) in Botswana on 14 August 2020 wherein it was requested that the Department must merely perform their duty and inform the Botswana government concerning the status of its request for mutual legal aid that was already filed on 25 September 2019 by the Botswana DPP. Failure thus led to the DPP Botswana being forced to drop a charge against Wilhelminah Maswabi because they were unaware of the progress of their request.  

On 25 August 2020 the Minister of Justice indicated in a media statement that in spite of the good relationship between the Department and the provision of legal aid in other cases, this case will be opposed. 

This statement was merely an empty threat as no opposing documents were filed by the government. The application was then placed on the unopposed roll for 7 July 2021 in the North Gauteng High Court in Pretoria. Outside the time earmarked for the filing of opposing documents, government in April 2021 filed a notice to oppose but opposing statement.  

On 2 July 2021 a letter was received from the state attorney that the government was willing to provide the necessary cooperation. The Department requested that the matter be struck off the roll with a view to a round table talk between the parties in order to settle the matter.   

In a letter to the Department on 5 July 2021 it was indicated that we will agree if the talk takes place before the court date of 7 July 2021.  

On 6 July 2021 at midnight a message was received that the government is withdrawing their request and will continue to oppose the application. 

On 7 July 2021 the judge granted the application and the result is that the Department of Justice must provide the information within 14 days and must bear the costs of the lawsuit.  

“Experience has now taught us that the government will hardly do the right thing on their own initiative. It is becoming the norm and not the exception that the government is forced through court orders to perform their work,” says Adv. Gerrie Nel, Head of AfriForum’s Private Prosecution Unit.  

“In spite of the economical realities the Department of Justice is now burdened with costs orders that they could have prevented by merely doing their duty. This is the third successful mandamus application brought by this unit against the government in circumstances where government authorities did not do their duties. In all three instances costs orders were granted.”  

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