Government loses bid to overturn order to cooperate with Botswana into probe of political elite suspects
The High Court in Pretoria has found against the South African government and awarded costs in favour of the Director of Public Prosecutions (DPP) in Botswana. AfriForum’s Private Prosecution Unit was briefed by the DPP, Adv. Stephen Tiroyakgosi and acted on their behalf. The case relates to an order that compelled the government to cooperate with their counterparts in Botswana in an investigation which implicates high-ranking South African political figures in alleged offences in that country.
Botswana__ applied for Mutual Legal Assistance (MLA) to South Africa in September 2019 – but despite numerous follow-ups and efforts to get cooperation, several state departments simply turned a blind eye. This prompted Botswana’s Director of Public Prosecutions to approach the Private Prosecution Unit for help.
The South African government’s application sought to overturn – to rescind – Judge Hennie de Vos’s granting of AfriForum’s mandamus application. The unopposed mandamus application was granted with costs on 7 July 2021 and ordered that the Justice Department and the National Director of Public Prosecutions (NDPP) are obligated to comply with the application brought by the government of Botswana for mutual legal assistance. In July 2021 the Department and the NDPP failed to oppose AfriForum’s mandamus application.
Judge Joseph Raulinga found that instead of cooperating, the government was playing for time. “The applicants failed to demonstrate why the order was erroneously granted. The applicants, as much as they tried to settle the matter out of court, they were playing delay tactics, they appointed an investigator and a prosecutor and still failed to provide an update on the developments that the investigator had made. The respondent is correct in their submission that there comes a point when litigation must come to an end.
The state offered several excuses for failing to respond to the matter in court, from trouble obtaining counsel to even invoking Covid-19 as a reason – all of which was rejected by the court, like a teacher dealing with the “dog ate my homework” excuse. “The contention that they struggled to obtain the services of a senior counsel, and that the working procedures during the national state of disaster somehow impeded them from properly opposing the matter is rejected,” said Raulinga.
The judge had no choice but to dismiss the application. “Having considered the abovementioned factors and after hearing the matter, the Court granted the parties an opportunity to settle out of court. However, the applicants still dilly-dallied and failed to offer a solution to get the matter settled. They failed to cooperate with the respondent.”
Private Prosecution Unit spokesperson Barry Bateman said the judgment is an embarrassing indictment on the offices of Justice and Constitutional Development Minister Ronald Lamola, Justice director general Adv. Doctor Mashabane, National Director of Public Prosecutions Shamila Batohi, and International Relations and Cooperation Minister Naledi Pandor were the applicants in the rescission application.
“We hope that the government will stop litigating against its SADC partners and comply with the court order to cooperate and assist Botswana’s Director of Public Prosecutions. The only inference to draw from the delays, as identified by the courts, is that the Justice Department, International Relations Department and the NPA are going out of their way to protect certain suspects from investigation and prosecution in our neighbouring country,” said Bateman.
