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.”
Despite being hailed and still regarded as a hero who saved many lives through his decision to crash the BF5 fighter Jet around the national stadium on the eve of the 2018 BDF day, the deceased Pilot, Major Clifford Manyuni’s actions were treated as a letdown within the army, especially by his master-Commander of the Air Arm, Major General Innocent Phatshwane.
Manyuni’s master says he was utterly disappointed with his Pilot’s failure to perform “simple basics.”
Manyuni was regarded as a hero through social media for his ‘colourful exploits’, but Phatshwane who recently retired as the Air Arm Commander, revealed to WeekendPost in an exclusive interview that while he appreciated Batswana’s outpouring of emotions and love towards his departed Pilot, he strongly felt let down by the Pilot “because there was nothing wrong with that Fighter Jet and Manyuni did not report any problem either.”
The deceased Pilot, Manyuni was known within the army to be an upwardly mobile aviator and in particular an air power proponent.
“I was hurt and very disappointed because nobody knows why he decided to crash a well-functioning aircraft,” stated Phatshwane – a veteran pilot with over 40 years of experience under the Air Arm unit.
Phatshwane went on to express shock at Manyuni’s flagrant disregard for the rules of the game, “they were in a formation if you recall well and the guiding principle in that set-up is that if you have any problem, you immediately report to the formation team leader and signal a break-away from the formation.
Manyuni disregarded all these basic rules, not even to report to anybody-team members or even the barracks,” revealed Phatshwane when engaged on the much-publicised 2018 incident that took the life of a Rakops-born Pilot of BDF Class 27 of 2003/2004.
Phatshwane quickly dismisses the suggestion that perhaps the Fighter Jet could have been faulty, “the reasons why I am saying I was disappointed is that the aircraft was also in good condition and well-functioning. It was in our best interest to know what could have caused the accident and we launched a wholesale post-accident investigation which revealed that everything in the structure was working perfectly well,” he stated.
Phatshwane continued: “we thoroughly assessed the condition of the engine of the aircraft as well as the safety measures-especially the ejection seat which is the Pilot’s best safety companion under any life-threatening situation. All were perfectly functional.”
In aircrafts, an ejection seat or ejector seat is a system designed to rescue the pilot or other crew of an aircraft in an emergency. The seat is propelled out of the aircraft by an explosive charge or rocket motor, carrying the pilot with it.”
Manyuni knew about all these safety measures and had checked their functionality prior to using the Aircraft as is routine practice, according to Phatshwane. Could Manyuni have been going through emotional distress of some sort? Phatshwane says while he may never really know about that, what he can say is that there are laid out procedures in aviation guiding instances of emotional instability which Manyuni also knew about.
“We don’t allow or condone emotionally or physically unfit Pilots to take charge of an aircraft. If a Pilot feels unfit, he reports and requests to be excused. We will subsequently shift the task to another Pilot. We do this because we know the risks of leaving an unfit pilot to fly an aircraft,” says Phatshwane.
Despite having happened a day before the BDF day, Phatshwane says the BDF day mishap did not really affect the BDF day preparations, although it emotionally distracted Manyuni’s flying formation squad a bit, having seen him break away from the formation to the stone-hearted ground. The team soldiered on and immediately reported back to base for advice and way forward, according to Phatshwane.
Sharing the details of the ordeal and his Pilots’ experiences, Phatshwane said: “they (pilots) were in distress, who wouldn’t? They were especially hurt by the deceased‘s lack of communication. I immediately called a chaplain to attend to their emotional needs.
He came and offered them counselling. But soldiers don’t cry, they immediately accepted that a warrior has been called, wiped off their tears and instantly reported back for duty. I am sure you saw them performing miracles the following day at the BDF day as arranged.”
Despite the matter having attracted wide publicity, the BDF kept the crash details a distance away from the public, a move that Phatshwane felt was not in the best interest of the army and public.
“The incident attracted overwhelming public attention. Not only that, there were some misconceptions attached to the incident and I thought it was upon the BDF to come out and address those for the benefit of the public and army’s reputation,” he said.
One disturbing narrative linked to the incident was that Manyuni heroically wrestled the ‘faulty’ aircraft away from the endangered public to die alone, a narrative which Phatshwane disputes as just people’s imaginations. “Like I said the Aircraft was functioning perfectly,” he responded.
A close family member has hinted that the traumatised Manyuni family, at the time of their son’s tragedy, strongly accused the BDF ‘of killing their son’. Phatshwane admits to this development, emphasising that “Manyuni’s mother was visibly and understandably in inconsolable pain when she uttered those words”.
Phatshwane was the one who had to travel to Rakops through the Directorate of Intelligence Services (DIS) aircraft to deliver the sad news to the family but says he found the family already in the know, through social media. At the time of his death, Manyuni was survived by both parents, two brothers, a sister, fiancée and one child. He was buried in Rakops in an emotionally-charged burial. Like his remains, the BDF fighter jets have been permanently rested.
A matter in which former President Lt Gen Ian Khama had brought before Broadhurst Police Station in Gaborone, requesting the State to charge Directorate on Corruption and Economic Crime (DCEC) lead investigator, Jako Hubona and others with perjury has been committed to Headquarters because it involves “elders.”
Broadhurst Police Station Commander, Obusitswe Lokae, told this publication this week that the case in its nature is high profile so the matter has been allocated to his Officer Commanding No.3 District who then reported to the Divisional Commander who then sort to commit it to Police Headquarters.