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A critique of Moroka J’s abolition of the delict of Adultery

Ndulamo Anthony Morima
EAGLE WATCH

In a recent land mark judgement in Precious Kgaje v Oreneile Phindile Mhotsha, CVHFT-000237/17, Moroka J made two Orders which may, unless the judgment is appealed and quashed by the Court of Appeal, forever change Batswana’s family institution.

Moroka J’s judgment is undoubtedly of historical moment in our jurisprudence. His Orders were short, yet far reaching. His first Order was that “the delict of adultery is no longer consistent with the boni mores (good morals) of contemporary Botswana.” In other words, according to Moroka J, Batswana’s general sense of justice and legal convictions today view adultery favorably and condone it and such evolution of Batswana’s culture should be reflected in our law.

The second was that “the actio iniuriarum based on adultery which affords the innocent spouse a claim for contumelia (insult to the self-esteem) and loss of consortium ( comfort and society) is no longer wrongful and thus no longer available as part of our law.” In resolving the question whether the delict of adultery is still valid given the change in the boni mores of society, Moroka J answered in the negative influenced, inter alia, by the fact that many countries including England, Namibia, South Africa and Seychelles have abolished the delict of adultery.

Moroka J was also persuaded by the argument that highly personal relations should not be regulated by the law but should be left to the sphere of ethical self-regulation of the community through unwritten norms and values. According to Moroka J it is the quality of the citizen, his or her integrity and voluntary respect for the marital institution and not the fear of sanction that sustains tranquility in the marriage.

Moroka J cites the Setswana proverb which says ‘matlo a na otlhe’, translated to mean all houses have leaky roofs, to demonstrate that Batswana accept adultery since the proverb is often used to counsel the innocent spouse in cases of adultery. This, he says, shows that while Batswana condemn adultery family preservation is encouraged as opposed to impulsive breakdown through divorce, stating that marriage is a union of forgivers.

He also cites the Setswana saying ‘Nyatsi e tiisa lelwapa’, translated to mean that an adulterer strengthens a marriage, to demonstrate Batswana’s tolerance of adultery. But, in admitting that Batswana regard adultery as wrong he states that “this is by no means an encouragement of an otherwise reprehensible conduct but an expression of attitudes towards it.” Before critiquing the judgment, it is apposite that I address some of the things that have been said about the judgment itself and the judge generally.

Some have wondered why one person, a judge, can change a law, arguing that only Parliament should have the preserve to make and change law. Judges have the power to develop the common law provided they do so in a manner that promotes the spirit, purport and objects of the Constitution, and in accordance with public policy. I, however, suggest that the law be amended to provide that decisions of the lower courts which have constitutional implications, as this one does, should be referred to a panel of three judges to confirm it before they have effect.

Others have, while accepting that Moroka J had the power to change the law, argued that he became overzealous and considered matters that were not before him, arguing that it is as if he had been waiting for the case to make a land mark judgment for his own legacy. At paragraph 1 of the judgment, the judge states that “the Defendant has invited this court to evaluate the constitutional and common law validity of the third party delictual actio iniuriarum claim based on adultery pertaining to a civil marriage, in the light of the changing mores of our society.”

The question is: did the judge do that and nothing more? Though one is not privy to the evidence led during the trial and the heads of arguments submitted by the parties, one wonders at the judge’s conclusion that Batswana’s morals have changed to the extent that they no longer consider adultery as wrongful. There is no reference, in the judgment, of evidence led during the trial which supports such a conclusion. There is also no reference to any empirical report or survey which supports such a conclusion.

Moroka J also, at paragraphs 53 and 54 of the judgment, refers to reasons for the support of the remedy and reasons against, which he says are, in part, from the readings of legal and sociological books and material, but such books and material are not referenced in the judgment. It has also been asked whether Moroka J’s judgment abolished the delict of adultery for both civil and customary marriages. Some argue that it only abolished adultery in civil marriages because the case dealt with the actio iniuriarum based on adultery which relates to civil marriages and not customary marriages.

If that interpretation is correct, does it mean the claim is still available for those who contracted their marriage under customary law? If that is the case, won’t we see those who are in support of the continued outlawing of adultery opting for customary marriages? But, some say because the judgment said the actio iniuriarum based on adultery which affords the innocent spouse a claim for contumelia and loss of consortium is no longer wrongful and thus no longer available as part of our law means that it applies to both customary and civil marriages because they are both ‘part of our law.’

But, was the issue before the court adultery in customary marriages? Did the judge make his enquiry in relation to customary marriages? Now, back to the substantive critique of Moroka J’s judgment. The question is: was Moroka J right in holding that there is no longer need for the continued existence of the delict of adultery.

Mandla J, in DE v RH [2015] ZACC 18, was right in concluding that, in essence, this is the only issue to be determined. The question is whether or not in contemporary Botswana the act of adultery meets the element of wrongfulness in order for delictual liability to attach. In determining whether or not the act complained of is wrongful the Court applies the criterion of reasonableness.

As was held in the case of Delange v Costa 1989 (2) SA 857 (A), this is an objective test which requires the conduct complained of to be tested against the prevailing norms of society in order to determine whether such conduct can be classified as wrongful.  Since the element of wrongfulness is cardinal for delictual liability, by holding that the delict of adultery is no longer consistent with the boni mores of contemporary Botswana Moroka J is effectively saying adultery no longer meets the element of wrongfulness for delictual liability to attach. I disagree.

Moroka J is saying the majority of Batswana no longer find adultery wrong and distasteful; they find it right. This cannot be correct. Below I give examples of practices and sayings that demonstrate that adultery is as much abominable for Batswana today as it was in the past. In Tswana culture, when newlyweds go through ‘go laiwa’, that is, when they are counselled by elders on how to conduct themselves in marriage one of the things that is emphasized is faithfulness to their spouse.

In Setswana, the third party adulterer is called Nyatsi, which is from the word go nyatsega which means something which is to be belittled. I disagree with Moroka J’s statement that the fact that the Childrens’ Act, Cap.28:04 does not permit discrimination of children born of adultery means that in Botswana both adultery and its fruits are no longer regarded with sort of inflexible moral fundamentalism.

Firstly, the Childrens’ Act was meant to protect the innocent child, not the adulterer. Secondly, despite the Childrens’ Act’s existence children born of adultery still face discrimination. Thirdly, even in cases where such children face no discrimination it does not mean that the adultery itself is condoned. Moroka J has held that the continued existence of the delict of adultery does not protect the marital institution, holding that it is only the parties themselves who, through fidelity, should protect their marriage.

I disagree with the judge’s assertion that adultery has nothing to do with the culpability of the third party and that it is the adulterous spouse that would have pierced the veil of unavailability. Granted, married persons should themselves abide by their marital vows. But, are we saying a third party who, knowing full well that a person is married, gets involved in an adulterous relationship with such person does no wrong and should not suffer any recrimination?

I agree with Moroka J that the fact that the actio iniuriarum of adultery renders the guilty spouse beyond the reach of the law despite clear culpability is an anomaly and that there are instances where the guilty spouse assists the third party to pay damages. But, should such anomaly warrant abolition of the actio iniuriarum of adultery itself?

Shouldn’t Moroka J have developed the common law to provide that both the third party and guilty spouse are liable in damages to the innocent spouse? Of course some would argue that that would be of no effect because the guilty spouse would pay from the joint estate. I take the point, but a provision could be made that the guilty spouse pays from sources other than the joint estate. But, can a spouse married in community of property own anything not part of the joint estate? No.

Or, a provision could be made that a guilty spouse’ share of the joint estate is reduced, and such would have consequence in the division of the joint estate during divorce. But, what if the spouses never divorce? Moroka J states that no threat of sanction may protect the marriage from a spouse who is no longer willing to live by the marriage vows. That is not wholly correct. Some marriages have been saved by the fear of the delict of adultery.

Imagine a situation where, as a result of this judgment, adulterers would fear no legal repercussion! It would result in anarchy, the so-called passion killings, murder-suicides and all manner of immorality. Moroka J argues that because of the principle of Botho which is based on self-respect, self-restraint and respect for others and sacred institutions, Batswana respect the law not out of fear of sanctions, but out of self-respect.

But, the very Batswana, governed by the very Botho still commit rape, murder, theft, e.t.c and laws exist for punishment, deterrence, reform, rehabilitation and even retribution. Where is their self-respect and self-restraint in such cases? Why should we only talk of self-respect and self-restraint in the case of marriage?         

I am aware that there is an adage which says ‘monna ke selepe oa hapaanelwa’, loosely translated to mean a man is an axe who is exchanged, which has been used to justify adultery, stating that it means that like an axe which is exchanged a man or husband can be shared by women. This interpretation is erroneous. Tradition has it that the adage means that a man should be of assistance in the community so that even unmarried women or families without a male should not suffer when it comes to male related duties when there is a male in the community.

I am also aware of the adage which says ‘monna ga a botswe ko a tswang teng’, loosely translated to mean that a man or husband is not asked where he is from, which is interpreted to mean that a man or husband can leave the home or even spend a night away from home, even for adulterous escapades, and he should not be asked where he is from.

This too is an erroneous interpretation. The correct interpretation is that a responsible man or husband always communicates his whereabouts or is, if away from home, does so for the family’s good such that there is no need for him to be asked about his whereabouts. Even today, in some cultures a guilty spouse is regarded as not only having defiled his or her body, but also brought insult to the innocent spouse, and, as a pre-condition for  forgiveness, is required to compensate the innocent spouse by giving him or her a cow. In some cultures, a cleansing ceremony is performed to cleanse the adulterer of the evil and filth that is adultery.           

Moroka J canvassed the changing societal norms mainly in terms of such new forms of sexual indiscretions as sexting and cybersex which are neither regarded as moral by the majority of Batswana nor are they forms of adultery. Besides, these sexual indiscretions were not before the court. Neither was the issue of adultery with a prostitute. What was before the court was adultery in relation to an ordinary married person and a third party.

Moroka J’s argument that the fact that the lurid details of adultery have become a source of amusement in tabloids and social media platforms means that adultery has ceased to be regarded with shock and revulsion cannot be sustained. On the contrary, it shows that it is not condoned, hence the desire to name and shame the culprits. The same applies to his argument that the right to privacy, entrenched in section 9 of the Constitution, which recognizes that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion, should be used to protect adulterers.  

Moroka J talked of consortium and society of the spouses, today, being lost to multiple sources and adultery being just a small percentage of these threats. But, that was not the issue before him. The issue before him was consortium and society of the spouses lost through adultery.

When the CoA, in Mabote and another v Mabote [1999] 1 BLR 386 (HC), approved Watermeyer JA’s views that “…in modern times and in the so-called permissive age there is now no inherent improbability per se about two persons in love, although not married to each other, committing adultery…”, it did not say Batswana no longer regarded adultery as wrongful. It was merely commenting on the increased existence of the vice.

Also, when the CoA said “…there can be no doubt that in many modern societies adultery no longer carries the stigma that it did 50 years ago. This in turn has impact on the loss of dignity sustained by the innocent party…” it was talking of the reduction in stigma, not that adultery was no longer wrong. Also, the comment was made not mainly in relation to the moral blameworthiness of adultery, but mainly in relation to the determination of the quantum of damages against the third party. In my view, therefore, this judgment would better be served by an appeal or referral by the Attorney General, failing which the legislature should intervene by legislation. I may be wrong. 

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Appendicitis: Recognising the Signs

29th March 2022

Many a times I get clients casually walking into my room and requesting to be checked for “appendix”.  Few questions down the line, it is clear they are unaware of where the appendix is or what to expect when one does have it (appendicitis). Jokingly (or maybe not) I would tell them they would possibly not be having appendicitis and laughing as hard as they are doing. On the other hand, I would be impressed that at least they know and acknowledge that appendicitis is a serious thing that they should be worried about.

So, what is Appendicitis?

Appendicitis is an inflammation of the appendix; a thin, finger-like pouch attached to the large intestine on the lower right side of the abdomen. Often the inflammation can be as a result of blockage either by the faecal matter, a foreign body, infection, trauma or a tumour. Appendicitis is generally acute, with symptoms coming on over the course of a day and becoming severe rapidly. Chronic appendicitis can also occur, though rarely. In chronic cases, symptoms are less severe and can last for days, weeks, or even months. 

Acute appendicitis is a medical emergency that almost always ends up in the operating theatre. Though the appendix is locally referred to as “lela la sukiri”, no one knows its exact role and it definitely does not have anything to do with sugar metabolism. Appendicitis can strike at any age, but it is mostly common from the teen years to the 30s.

Signs to look out for

If you have any of the following symptoms, go and see a Doctor immediately! Timely diagnosis and treatment are vital in acute appendicitis;

Sudden pain that starts around the navel and shifts to the lower right abdomen within hours

The pain becomes constant and increases in severity (or comes back despite painkillers)

The pain worsens on coughing, sneezing, laughing, walking or deep breaths

Loss of appetite

Nausea and vomiting

Fever

Constipation or diarrhoea

Abdominal bloating/fullness

Diagnosis

The doctor often asks questions regarding the symptoms and the patient’s medical history. This will be followed up by a physical examination in which the Doctor presses on the abdomen to check for any tenderness, and the location of the pain. With acute appendicitis, pressing on and letting go of the right lower abdomen usually elicits an excruciatingly unbearable pain. Several tests may be ordered to determine especially the severity of the illness and to rule out other causes of abdominal pain. The tests may conditions include: blood tests, a pregnancy test, urinalysis, abdominal  “How do ultrasound scans work?” ultrasound (scan), CT scan or MRI Scan.

Treatment

The gold standard treatment of acute appendicitis is surgical removal of the appendix known as appendectomy. Luckily, a person can live just fine without an appendix! Surgical options include laparoscopy or open surgery and the type will be decided on by the Surgeon after assessing the patient’s condition. Painkillers and antibiotics are also given intravenously usually before, during and after the surgery.

Complications

Appendicitis can cause serious complications such as;

Appendicular mass/abscessIf the appendix is inflamed or bursts, one may develop a pocket of pus around it known as an abscess. In most cases, the abscess will be treated with antibiotics and drained first by placing a tube through one’s abdominal wall into the abscess. The tube may be left in place for a few hours or days while the infection is clearing up but ultimately one would still have surgery to remove the appendix.

Peritonitis – without treatment, the appendix can rupture/burst. The risk of this rises 48–72 hours after symptoms start. A ruptured appendix spreads the infection throughout the abdomen (peritonitis). This is life threatening and requires immediate surgery to remove the appendix and clean the abdominal cavity.

Death – The complications of appendicitis (and appendectomy) can be life threatening, only if the diagnosis has been missed and no proper treatment has been given on time. This is rare though with the evolved medical care.

If you need further advice or treatment please call 4924730, email  HYPERLINK “mailto:info@themedicscentre.co.bw” info@themedicscentre.co.bw or visit www.themedisccentre.co.bw

Antoinette Boima, MBBS, BMedSci, PgDip HIV/AIDS, Cert Aesth Med is the Managing Director of The Medics Centre in Palapye.

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A degree of common sense

7th February 2022

Here’s a news item from last month you may have missed. In December 2021 the University of Staffordshire announced it would be offered a degree course in pantomime! Yes, that’s right, a degree in popular festive entertainment, the Christmas panto.

We used to have one here, put on by the Capitol Players, though it seems to have fallen away in recent times, but the spectacle is still alive and well in the UK, both in local ad-dram (amateur dramatic ) societies and on the London stage and most of the major cities, these latter productions usually featuring at least one big-draw name from the world of show business with ticket prices commensurate with the star’s salary.

In case you’re unfamiliar with the pantomime format, it consists of a raucous mixture of songs and comedy all based around a well-known fairy or folk tale. Aladdin and His Magic Lamp, Cinderella, Jack & The Beanstalk & Dick Whittington are perennial favourites but any well-known tall tale goes. There is no set script, unlike a play, and storyline is just a peg to hang a coat of contemporary, often bawdy, gags on, in what should be a rollicking production of cross dressing – there has to be at least one pantomime dame, played by a man and always a figure of fun, and a Principal Boy, ostensibly the male lead, yet played by an attractive young woman.

As an art form it can trace its roots back to 16th century Italy and the Commedia Del’Arte which used a mélange of music, dance, acrobatics along with a cast of comic stock characters so it has a long and proud theatrical tradition but you have to wonder, does that really qualify it as a suitable subject for a university? Further, what use might any degree be that can be acquired in a single year? And last but not least, how much standing does any degree have which comes from a jumped-up polytechnic, granted university status along with many of its ilk back in 1992, for reasons best known to the government of the time? Even more worrying are the stated aims of the course.

Staffordshire University claims it is a world first and the masters course is aimed at people working inside as well as outside the industry. Students on the course, due to start in September 2022, will get practical training in the art form as well as research the discipline.

“We want to see how far we can take this,” Associate Professor of Acting and Directing Robert Marsden said. The role of pantomime in the 21st Century was also going to be examined, he said, “particularly post Me Too and Black Lives Matter”. Questions including “how do we address the gender issues, how do we tell the story of Aladdin in 2021, how do we get that balance of male/female roles?” will be asked, Prof Marsden added.

Eek! Sounds like Prof. Marsden wants to rob it of both its history and its comedic aspects – well, good luck with that! Of course that isn’t the only bizarre, obscure and frankly time and money-wasting degree course available. Staying with the performing arts there’s Contemporary Circus and Physical Performance at Bath Spa University. Sounds like fun but why on earth would a circus performer need a university degree?

Or how about a Surf Science and Technology degree at Cornwall College (part of the University of Plymouth). Where the one thing you don’t learn is….how to surf!

Then there is a  degree in Floral Design at University Centre Myerscough. No, I hadn’t heard of it either – turns out it’s a college of further education in Preston, a town that in my experience fits the old joke of ‘I went there once…..It was closed’ to a ‘T’!

Another handy (pun intended) art is that of Hand Embroidery BA (Hons), offered at the University for the Creative Arts. Or you could waste away sorry, while away, your time on a course in Animal Behaviour and Psychology. This degree at the University of Chester teaches you about the way animals think and feel. Cockroaches have personalities according to the subject specs– you couldn’t make it up.

Happily all these educational institutes may have to look to their laurels and try to justify their very existence in the near future. In plans announced this week, universities could face fines of up to £500,000 (P750m), be stripped of their right to take student loans or effectively shut down if they cannot get 60 per cent of students into a professional job under a crackdown on ‘Mickey Mouse’ courses. Further, at least 80 per cent of students should not drop out after the first year, and 75 per cent should graduate.

The rules, published by the Office for Students (OfS), aim to eliminate ‘low-quality’ courses by setting new standards & requiring courses to improve their rating in the TEF, the official universities ratings system. Universities not meeting the new standards will not be able to charge full annual fees of £9,250. Unconventional courses that could fall victim to the new rules could include the University of Sunderland’s BA in Fashion Journalism, where students learn essential’ skills such as catwalk reporting and the history of Chanel.  They have only a 40 per cent chance of entering highly skilled work 15 months after leaving.

At University College Birmingham, BSC Bakery and Patisserie Technology students – who learn how to ‘make artisan bread’ – have a 15 per cent chance of a professional job within 15 months. Universities minister Michelle Donelan welcomed the move, saying ‘When students go to university, they do so in the pursuit of a life-changing education, one which helps pave their path towards a highly skilled career. Any university that fails to match this ambition must be held to account.’

OfS found that at 25 universities, fewer than half of students find professional work within 15 months.  Business and management courses at the University of Bedfordshire (14.8 per cent) were among the least likely to lead to graduate-level jobs.  Asked to comment, the University of Sunderland said it always looked ‘to find ways to improve outcomes’; University College Birmingham said data on graduates and definition of ‘professional work’ was limited. I’ll bet it is! As the saying goes, ’what the eye doesn’t see, the heart doesn’t grieve over’. What a pantomime!

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Why regular health checks are important!

7th February 2022

With the world still reeling from the negative impact of the Coronavirus disease-19 (COVID-19), and the latest Omicron variant (which is responsible for the ongoing global forth wave) on everyone’s lips, we should not forget and neglect other aspects of our health.

While anyone can get infected with corona virus and become seriously ill or die at any age, studies continue to show that people aged 60 years and above, and those with underlying medical conditions like hypertension, heart and lung problems, diabetes, obesity, cancers, or mental illness are at a higher risk of developing serious illness or dying from covid-19.

It is a good habit to visit a doctor regularly, even if you feel healthy. Regular health checks can help identify any early signs of health issues or assess your risk of future illness hence prompting one to take charge and maintain a healthy lifestyle. Heart disease, diabetes, some cancers and other non-communicable diseases (even communicable) can often be picked up in their early stages, when chances for effective treatment are high.

During a health check, your doctor will take a thorough history from you regarding your medical history, your family’s history of disease, your social life and habits, including your diet, physical activity, alcohol use, smoking and drug intake. S/he will examine you including measuring your weight, blood pressure, feeling your body organs and listening to your heart and lungs amongst the rest. Depending on the assessment, your doctor will notify you how often you need to have a health check. If you have a high risk of a particular health condition, your doctor may recommend more frequent health checks from an early age.

Diet – a healthy diet improves one’s general health and wellbeing. It is recommended that we have at least two serves of fruit and five serves of vegetables daily. Physical activity – regular physical activity has significant health benefits on one’s body, mind & soul. It contributes to preventing and managing non-communicable diseases such as cardiovascular diseases, cancers and diabetes, reduce symptoms of depression and anxiety, enhances thinking, learning, and judgment skills and improves overall well-being. According to the world health organisation (WHO), people who are insufficiently active have a 20% to 30% increased risk of death compared to people who are sufficiently active. Aim for 30 minutes to an hour of moderate physical activity at least four days in a week. Examples of moderate physical activity include brisk walking, gentle swimming and social tennis.

Weight – maintaining a healthy weight range helps in preventing long-term complications like cardiovascular disease, diabetes and arthritis. It is also vital for one’s mental wellbeing and keeping up with normal activities of daily living. Ask your doctor to check your body mass index (BMI) and waist circumference annually. If you are at a higher risk, you should have your weight checked more frequently and a stern management plan in place.

Alcohol – as per WHO reports, alcohol consumption contributes to 3 million deaths each year globally as well as to the disabilities and poor health of millions of people. Healthy drinking entails taking no more than two standard drinks per drinking day with at least two alcohol-free days in a week.

Smoking –Nicotine contained in tobacco is highly addictive and tobacco use is a major risk factor for cardiovascular and respiratory diseases, many different types of cancer, and many other debilitating health conditions. Every year, at least a whopping 8 million people succumb from tobacco use worldwide. Tobacco can also be deadly for non-smokers through second-hand smoke exposure. It is not ‘fashionable’ if it is going to cost you and your loved ones lives! If you are currently smoking, talk to your doctor and get help in quitting as soon as possible to reduce the harm.

Blood pressure: Hypertension is a serious medical condition and can increase the risk of heart, brain, kidney and other diseases. It is a major cause of premature death worldwide, with upwards of 1 in 4 men and 1 in 5 women – over a billion people – having the condition. Have your blood pressure checked annually if it is normal, you are aged under 40 and there is no family history of hypertension. You might need to have it checked more frequently if you are over 40, your blood pressure is on the high side, or you have a personal or family history of high blood pressure, stroke or heart attack. Your doctor will be there to guide you.

Dental care – eating a low-sugar diet and cleaning and flossing the teeth regularly can reduce one’s risk of tooth decay, gum disease and tooth loss. Visit a dentist every six months for a dental examination and professional cleaning, or more frequently as per your dentist’s advice.
Blood tests – annual to five-yearly blood tests may be done to further assess or confirm risk of disease. These may include blood sugar levels, cholesterol levels, kidney function, liver function, tumour markers, among other things. They may be done frequently if there is already an existing medical condition.

Cancer screening – various screening techniques can be done to detect different cancers in their early or pre-cancer stages. These include; skin inspections for any suspicious moles/spots, two-yearly mammograms for those at risk of developing breast cancer, Pap smear or the new Cervical Screening Test (CST) every five years, stool tests and colonoscopy (every five years) for those at most risk of bowel cancer, prostate cancer screening for those at risk (over 45 years of age, family history of cancers etc.). Discuss appropriate tests with your doctor.

Vaccinations – You should discuss with your doctor about the necessary routine immunisation, in particular; the Covid-19 vaccines, an annual flu shot, a five-yearly pneumococcal vaccine if you have never had one or you are immunocompromised and any other boosters that you might need.

If you need further advice or treatment please call 4924730, email HYPERLINK “mailto:info@themedicscentre.co.bw” info@themedicscentre.co.bw or visit www.themedisccentre.co.bw

Antoinette Boima, MBBS, BMedSci, PgDip HIV/AIDS, Cert Aesth Med is the Managing Director of The Medics Centre in Palapye.

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