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10 million Pula windfall for defamation is ludicrous

PRIMA FACIE

This past week we learnt from a newspaper report that a famed medical doctor had received a Ten Million windfall as settlement for defamation. This also allegedly came with some side perks. We also learnt that a wealthy business man had sued the Attorney General for Millions of Pula. These of course are allegations reported in the media. If they are true they will be a source of great concern.


This animal called defamation seems like a gold mine. Let us examine it. The concept of defamation under Customary law is known as “go senya leina”.It is often lumped together with the use of abusive language. As a result it is not clearly defined. Isaac Schapera in his book A Handbook of Tswana Law and Custom states that the punishment for such an offence is either a thrashing, a fine of a goat, sheep or an ox. He further states that accusations made in good faith to a person in authority are accepted as a defence, thus not punishable.


From the above discussion it is evident that under customary law compensation for defamation was not meant to enrich the offended person. It was intended to “cleanse” his or her name. Obviously this took into consideration the need not to stifle freedom of expression. Fast forward to the received law. Under Roman Dutch law defamation is well defined.


In the old case of Karim v Weterings the then Chief Justice Aguda defined defamation in the following terms “A defamatory statement is one calculated to lower the plaintiff in the estimation of right-thinking men or cause him to be shunned or avoided, or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging him or injurious to him in his office, profession, calling or trade”


The measure of damages to be awarded for defamation was articulated crisply by the Late Justice Chatikobo in Dibotelo V Sechele and others. An interesting feature of this case is that the current Chief Justice was the Plaintiff and the candidate judge(if that comes to fruition) Omphemetse Motumise represented the defendants.


Dibotelo had sued for defamation following publication of statements to the effect that he had misappropriated his client’s money. It turned out that the statements were untrue as at the alleged period he was already a serving judge. Justice Chatikobo was at pains to explain that freedom of expression should not be whittled down through damages for defamation.


He expressed himself thus “The problem which stares me in the face is how best to award damages so as to solace the plaintiff's wounded feelings without penalising the defendants for their wrongdoing. I bear in mind that the plaintiff essentially seeks the vindication of his reputation by claiming damages, the underlying assumption being that an award of damages will vindicate the plaintiff in the eyes of the public and will serve as conciliation to him for the wrong done to him.

 

I am anxious not to create the impression that the courts, by their protection of a person's right to unsullied reputation unwittingly whittle down the press's freedom of speech. The best way to disabuse all and sundry of such perceptions is no doubt to recall the elementary concept upon which our law of defamation is founded.”


The Judge then proceeded in the following manner “ I must hasten to state that I consider the sum of P5,000,000.00 claimed by the plaintiff to be way out of line with any comparable claims in this jurisdiction or elsewhere. At the same time the sum of P40,000.00 once offered by  the defendants is far too low to merit consideration. I consider an award in the region of P300,000.00 to be more appropriate. I will have to scale this amount down to give effect to the fact that an apology has been made.”


A claim for P5,000,000.00 was characterised as being way out of line. It is inconceivable that any person could go before a Court of law in our country and be awarded P 10,000,000.00.The Court of Appeal has also provided a clear guide on how assessment of damages in defamation cases has to be carried out.


Justice Foxcroft in Tibone v Tsodilo stated the following words “The first step in reaching an appropriate award is to balance the competing considerations of freedom of speech and public interest on the one hand, and the right to individual dignity on the other. This does not appear to have been done in this case.

 

Once the learned judge a quo correctly held that the claimed sum of P3 million was ridiculously high he turned to the case ofDibotelo v Sechele and Others [2001] 2 B.L.R. 588 for his yardstick. Deducting P50 000 from the notional figure of P300 000 (which he had considered awarding) because there had been an apology in that matter, Chatikobo J awarded P250 000 to the plaintiff. Allowing then for inflation, and the 'obvious parallels' between that case where a judge had been defamed and the Cabinet Minister in casu, the learned judge a quo awarded the sum of P400 000 to the respondent.


What then would be the basis for a settlement of Ten million pula? What would be the basis for a claim amounting to thirty million pula? These questions must exercise the minds of those who enter into ridiculous settlements. It equally applies to those who appear before Courts of law and (to use borrowed language) aim for the stars.

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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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