Welheminah ‘utterfly’ Mpheong Maswabi  writes: “All the facts deposed to herein are, save as otherwise provided, within my personal knowledge, information and / belief and are true and correct in every respect.

Where I make legal submissions, I do so on the basis of legal advice I received from my attorneys, which I verify believe to be true and correct. I also make reference to what I have been told by my attorney Phatshimo Mphetolang, who has deposed to a confirmatory affidavit.
I am an adult female of full legal capacity, presently held at the Women’s Prison at the Village Gaborone, where I am remand prisoner, otherwise I am ordinarily resident in Gaborone, plot 60407, block 7 Gaborone where until my arrest and detention I lived.

I am employed by the Directorate of Intelligence and Security Services as a senior intelligence officer. I bring this application to seek the reliefs set out on the notice of motion. In particular, I beseech the court to rescind and set the Remand order issued on the 18th October 2019 by court a quo. The basis for the challenge stems from a violation of my sacrosanct constitutional right to legal representation.

On the 17th of October 2019 at around 1515 hours, I was in staff meeting at my work place when I was abruptly summoned out of the meeting by investigating officer who indicated that I am under arrest and that they had a warrant of my arrest which empowers them to take me away into custody. They immediately took away my personal belongings, in particular my hand bag which contained my mobile phone, house keys, car keys and my wallet that contains my bank cards and national identity cards.

At that point I requested to contact a family member and my attorneys and I was informed that I will get a chance to contact them after I have been charged. I was then ushered into a police into a driven at a high speed to the Criminal Investigation Division (CID) in Gaborone. On our way there I insisted on talking to my lawyer and family member. Even upon arrival at the CID I reiterated my request to make contact with my attorney or any member of my family. I was vehemently denied the opportunity to do so. Instead, I was told that I am a difficult person and that they were forewarned about my difficult disposition. They didn’t say by who.

I was kept at the CID for questioning form the time we arrived until 2000hrs and the entire time I was grilled with unending questions by several officers among the being Mr Mashabile, Mr  Mabona, Mr Gaotingwe, Mr Hobona and Ms Seretse. Afterwards I was taken to Naledi Police Station where I was put in a holding cell overnight. Even at that point I requested to contact my lawyer or family member to no avail.

I was not surprised at the refusal by the Police because when I arrived at Naledi Police Station, the above officer who handed me over to the police officers were strictly instructed, in my presence and hearing, that I should not be assisted with anything. More specifically not to be given access to a phone or have any contact with anyone outside Police station.

 On the morning of the 18th October 2019, at around 0730hours, I was taken from Old Naledi Police Station by the investigating officer, I was taken to my work place where a search of my office was conducted as well as a my personal motor vehicle albeit without search warrant.
Afterwards, I was then immediately whisked away to Broadhurst Magistrate Court. Even on my way to court and at court, I made the request to talk to my lawyer, It was refused. When we arrived inside the court room that is when I was serve with a copy of charge sheet dated the 17th October 2019. Immediately afterwards, court was in session and the proceedings began. The magistrate was ushered into the courtroom and the matter was called up by the Court bailiff.

It is crucial to note that the proceedings by the magistrates were forced to halt momentarily as I was still reading the charge sheet as I was only having sight of it then. When court began, I openly made a request to call a lawyer so that they can represent me. Instead, the prosecuting officer summited that the matter is one which required to be held in camera/ private and away from the public. I then inquired as to whether this excludes the attendance of my attorney and I did not get an answer and instead the matter nonetheless proceeded
I also made the request to engage a lawyer after the charge were read to me and after my right were explained to me that I have a right to legal representation. Despite the fact that I had made it clear that I want a lawyer to represent me, court proceedings did not halt, instead an order for my remand was issued and I was informed that I will detained at the Women’s prison in pursuance  thereof for 14 days.

Immediately thereafter, I was whisked away to police headquarters in Central Business District (CBD). When we arrived there, that is when a phone was availed to me by one Mr Mashabile to call my lawyer’s office at around 1430 hours. I informed them that I have been arrested and being taken to Women’s Prison and they should come quickly. From there I was taken to women’s Prison to be received by the prison officials. Immediately after being checked in I was the escorted out by the same investigating officer to be taken to my residence in Block 7, Gaborone where I was informed that a search is going to be conducted.

As we were exiting through the gates of Women’s prison, my attorney Phatsimo Mphetolang and my nephew Sean Maswabi were waiting outside the gate. I quickly handed my attorney a copy of the charge sheet and told her that I am being taken to have my house for searching where she shortly arrived behind us.

When my attorney proceed to inquire from myself within earshot of the investigation officer of the investigation officers into details of the charge sheet and my arrest to engage with me, she was lashed at the investigating officers and fearfully told that she is obstructing justice and interfering with police investigation and demanded to leave the residence. She left, but returned a few minutes later to observe the search. The search was concluded at around 1730 hours and I was taken to CBD later on to Women’s Prison at around 1900hrs.

I only managed to consult and speak to my attorney on the Saturday morning. 19th of October 2019 after the fact. My lawyers verily inform me hat on the 21st October 2019 they attended at the Broadhurst magistrate Court to secure copies of the court record detailing all that transpired leading to the issuance of the granting of court order for my remand. They inform me that they managed to secure a copy of the court as I had not been furnished with it by the prosecuting team after it was granted against me.

They proceeded to request for a formal record of proceedings from court to confirm my assertions made in the affidavit herein and at the time of making this application it was still made available to them. Annexed hereto is a copy of letter making the request marked “WHM 1-3.”
My attorney informs me that she met with the court reporter, Ms Baleseng who verify informed her that she will be away from the office from the 22nd October 2019 onwards as she is an election officer in the upcoming 2019 general elections and will only assist with the transcribed record after the elections when she has reported for duty bearing in mind that the 23rd, 24th and 25th of October 2019 has been declared public holidays and she will not be working.

My attorney proceeded to draft the urgent application and came to see me to go over the court documents together for my input around 1500Hours. Count 1, I am accused of having pecuniary resource disproportionate with my present or past known sources of income. I have not been questioned about my assets and means and even if I had being, the prosecution does not need me in jail as I believe they would have already investigated to come up with such charge.

I submit that the first element of the charge is clearly not met as I have not been given the opportunity to explain my assets, which would have would have been the first logical thing to do as demanded by the law. I find it strange that u could be said to have amassed wealth or asserts disproportionate to my means when I do not even have a house to my name or hefty bank account to myself.  Firstly, I am accused of transferring money to Isaac Kgosi on the date unknown, the date in my view should be easy to establish from the documents or whatever instrument that gave rise to the charges.

Secondly, I do not have an offshore account in the names given or any other name. Thirdly, I have no knowledge of Blue File (PTY) Ltd and have never been a signatory to its account.  I was then handed the affidavit to me in my prison cell by Ms Makula. I am advised that the prison official refused to commissioner of oaths to see me in a person in order to depose to the affidavit as required by the law. No amount of persuasion helped and I am told Ms Makula telephoned Ms Nfila who apparently is the boss and ask if they can open the cell for me to meet the commissioner of oaths and that she refused.

I am advised that my attorney Ms Phatshimo  Mphetolang, Mr Uyapo Ndadi, together with Mr Maswabi had to turn back at around 2000hrs and arranged with Ms Makula to come the next day and were informed that the earliest opportunity to see me is at 0830hours. The refusal by the prosecution to allow me legal representation has greatly prejudiced me. It is also unclear that my efforts to seek redress from the court are also frustrated by the authority’s refusal to assist me with commissioning my affidavit.

With respect to the Third count, I do not have to be incarcerated for it as the charge clearly states the nature and specifics of it.” If I had been given the opportunity to engage a lawyer, it would have come out that the passport was used for one intelligence mission abroad which details I am happy to share with the court in camera and was at the behest of my employer, being the DIS and Mr Mabuse Pule, the head of the Immigration Department at the time. The name was my operational name as it is customary in the intelligence field.

After completing the mission, I personally handed over the passport to the director General at the time, and I saw him put it on the safe. I have no knowledge of what he did with it afterwards. But I can confirm to the court that I never had to use it again afterwards.” Uyapo Ndadi who is also representing her in this matter said, “the court postponed her bail application to the 29th October 2019, at 830am.

In summary, she details how she was denied contact with her lawyers and family upon arrest and that she was only allowed to talk to her lawyers after the court issued an order detaining her. After that, the prison officials refused to commission her affidavit saying they have been instructed not to do so. This meant she could not approach court earlier. Her lawyers had to bring another lawyer from outside to assist with the commissioning of documents so that she can then apply for bail.”