Dingake says Minister Matambo should have been notified of report allegations
The Minister of Finance and Development Planning, Kenneth Matambo has successfully lobbied the High Court to set aside the contents of a report chronicling misdemeanours at the Botswana Development Corporation (BDC)’s Fengyue Glass Project which is based in Palapye.
Parliament adopted the Fengyue Glass Project report in July 2013 and pronounced criminal liability on some subjects and called for investigation by among others the Directorate on Corruption and Economic Crime (DCEC).
Matambo, through his lawyers approached the court complaining about breach of the principles of natural justice and the legality of decisions made by the National Assembly. He was suing the Speaker of the National Assembly, Chairperson of the Special Select Committee of Enquiry into the BDC’s Fengyue Glass Project, and the Attorney General.
When delivering Judgement, High Court Judge Key Dingake concurred with Matambo’s legal team that the report was unlawful because it breaches the principles of natural justice. Dingake added that the report contained inaccurate information which was misleading to the public and highly prejudicial to Matambo.
“This Court is acutely aware of public interest in ensuring that public entities are held accountable and that the executive, in all its formations, account to Parliament. But this does not mean that shortcuts should be taken because administering justice in every case that comes to court is even greater public interest. In the temple of justice, justice must prevail at all times. In dispensing justice public condemnation or praise is irrelevant. Justice has its own pace, and even if delayed it has an amazing way to reassert itself in due course,” said Justice Dingake when delivering judgment on Wednesday.
Dingake said it is worth emphasising that judges are or ought to be mortgaged to the rule of law and to be true arbiters of what is fair and what is not. “Parliament as an institution must lead by example. It must be fair at all times and respect rights of individuals. Parliament, the creation of the Constitution, ought to be subject to no authority other than the Constitution, itself. Parliamentarians are oath bound to respect the Constitution, not just in words but in deeds,” he said.
“Having regard to the authorities referred to herein, and the grave nature of the allegations made against the Applicant, who has a right to his good name and reputation, it seems inevitable that he ought to succeed in the relief he seeks,” pronounced the Judge.
Dingake ordered that the findings of the report which was adopted by National Assembly on the 25 July 2013 by the National Assembly be set aside. The Judge said declaring the adoption on 25 July 2013 by the National Assembly of the report which was issued, on or about 28 December 2012 on the Fengyue Glass Manufacturing (Botswana) Palapye Glass Project, in so far it concerned or related to the Applicant (Matambo) was unlawful, and accordingly invalid; for breach of the principles of natural justice, and in particular the audi alteram partem rule, in relation to the Applicant (Matambo).
The judge observed that Matambo occupied a position akin to that of an accused person. “The Applicant’s conduct lie at the centre of the Committee’s examination and is the major subject matter of the Committee’s report,” he said. In the Judge’s considered view, the Parliament Select Committee exceeded its oversight and legislative functions when they proceeded to make pronouncements relating to criminal liability and the need for investigation.
He further said it seemed plain that at the very least, the applicant should have been informed what adverse information was given against him and be afforded a fair opportunity of answering. Dingake expressed that the review of the BDC Fengyue Glass Project report does not harm or in any way undermine the constitutional mandate of Parliament to legislate, “neither does it undermine Parliament’s powers to regulate its internal affairs. It would be a dark day in the legal history of this country if Section 3, worded in the manner it is, is construed to block any person ‘s access to the courts…”
“The costs of this application shall be borne by the respondents (who opposed the application), jointly and severally and one paying, the others to be absolved.
This is the second time that Minister Matambo has taken the court route to clear his name. In the first matter Matambo remained in his position of Minister of Finance and Development Planning while at the same time battling corruption allegations in court, he ultimately was cleared of any wrong doing.
The Botswana Development Corporation petitioned the High Court for the liquidation of Fengyue Glass Manufacturing Company (Proprietary) Limited. The Company is a joint venture between Botswana Development Corporation and Shanghai Fengyue Glass Co. Ltd. The Company was set up in 2007 for the construction of a 450 tonne ï¬‚oat glass plant in Palapye.
BDC was of the view that the project failed to meet its targets, including those of time and budget which, in BDC’s opinion, affected the viability of the project. The Corporation had assessed all possible options and having taken all factors into consideration has decided that the appropriate course of action is, as a Shareholder in the joint venture, to petition the Court to liquidate the Company.
The chairperson of the Parliamentary Special Select Committee of inquiry into the Botswana Development Corporation (BDC), Mr Abram Kesupile had told Parliament that the Palapye glass manufacturing project was bound to fail as it was premised on poor diligence, doubtful partner selection and a litany of project implementation violations.
Presenting the findings of the report on the BDC Fengyue Glass Manufacturing (Botswana) Palapye Glass Project in Parliament, Mr Kesupile, who is also Kanye South MP, said the findings revealed that two Batswana women were robbed after presenting their glass manufacturing idea to BDC.
He said BDC then opted to go into a joint venture with Chinese Shanghai Fengyue Glass Company, ignoring their function of encouraging citizen partnership in national business ventures. Kesupile said the company was appointed although it did not have the required technical expertise. He said BDC board members were kept in the dark with regard to the partner selection process.
He also noted that the project was originally estimated to cost P309 million but ran additional costs which increased to over P500 million.
Minister of Presidential Affairs, Governance and Public Administration, Kabo Morwaeng together with Permanent Secretary to the President (PSP) Elias Magosi, this week refused to name and shame the worst performing Ministries and to disclose the best performing Ministries since beginning of 12th parliament including the main reasons for underperformance.
Of late there have been a litany of complaints from both ends of the aisle with cabinet members accused of providing parliament with unsatisfactory responses to the questions posed. In fact for some Botswana Democratic Party (BDP) backbenchers a meeting with the ministers and party leadership is overdue to address their complaints. Jwaneng-Mabutsane MP, Mephato Reatile is also not happy with ministers’ performance.
Bokamoso Private Hospital is battling a P10 million legal suit for a botched fibroids operation which resulted in a woman losing an entire womb and her prospects of bearing children left at zero.
The same suit has also befallen the Attorney General of Botswana who is representing the Ministry of Health and Wellness for their contributory negligence of having the unlawful removal of a patient, Goitsemang Magetse’s womb.
According to the court papers, Magetse says that sometimes in November 2019, she was diagnosed with fibroids at Marina Hospital where upon she was referred to Bokamoso Private Hospital to schedule an appointment for an operation to remove the fibroids, which she did.
Magetse continues that at the instance of one Dr Li Wang, the surgeon who performed the operation, and unknown to her, an operation to remove her whole womb was conducted instead. According to Magetse, it was only through a Marina Hospital regular check-up that she got to learn that her whole womb has been removed.
“At the while she was under the belief that only her fibroids have been removed. By doing so, the hospital has subjected itself to some serious delictual liability in that it performed a serious and life changing operation on patient who was under the belief that she was doing a completely different operation altogether. It thus came as a shock when our client learnt that her womb had been removed, without her consent,” said Magetse’s legal representatives, Kanjabanga and Associates in their summons.
The letter further says, “this is an infringement of our client‘s rights and this infringement has dire consequences on her to the extent that she can never bear children again”. ‘It is our instruction therefore, to claim as we hereby do, damages in the sum of BWP 10,000,000 (ten million Pula) for unlawful removal of client’s womb,” reads Kanjabanga Attorneys’ papers. The defendants are yet to respond to the plaintiff’s papers.
What are fibroids?
Fibroids are tumors made of smooth muscle cells and fibrous connective tissue. They develop in the uterus. It is estimated that 70 to 80 percent of women will develop fibroids in their lifetime — however, not everyone will develop symptoms or require treatment.
The most important characteristic of fibroids is that they’re almost always benign, or noncancerous. That said, some fibroids begin as cancer — but benign fibroids can’t become cancer. Cancerous fibroids are very rare. Because of this fact, it’s reasonable for women without symptoms to opt for observation rather than treatment.
Studies show that fibroids grow at different rates, even when a woman has more than one. They can range from the size of a pea to (occasionally) the size of a watermelon. Even if fibroids grow that large, we offer timely and effective treatment to provide relief.
The Alliance for Progressives (AP) President Ndaba Gaolathe has said that despite major accolades that Botswana continues to receive internationally with regard to the state of economy, the prospects for the future are imperilled.
Delivering his party Annual Policy Statement on Thursday, Gaolathe indicated that Botswana is in a state of do or die, and that the country’s economy is on a sick bed. With a major concern for poverty, Gaolathe pointed out that almost half of Botswana’s people are ravaged by or are about to sink into poverty. “Our young people have lost the fire to dream about what they could become,” he said.