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IN THE HIGH COURT
OF BOTSWANA

HELD AT GABORONE

CVHLB-001800-11

DATE:
26 APRIL 2013

OITSHEPILE M.
GAEGOPOLWE………………………………………………………….PLAINTIFF

And

ATTORNEY GENERAL
& OTHERS…………………………………………….1st
DEFENDANT

PITSO
MBAKI……………………………………………………………………………2nd
DEFENDANT

REETSANG
MATHAMBO …………………………………………………………3rd
DEFENDANT

Mr S. Masuku for
the PLAINTIFF

Mr K. Itseng with

Ms N. K. T. Sharp
for the DEFENDANTS

JUDGMENT

BUSANG J:

1. The Plaintiff has
instituted proceedings against the Attorney General (1st defendant)
and Reetsang Mathambo (3rd defendant),
an Investigator with
Directorate on Corruption and Economic Crime (herein after called
D.C.E.C). The claim against Pitso Mbaki
(2nd defendant) was withdrawn
with costs during the course of the trial. Plaintiff seeks damages in
the sum of P250, 000.00 for
wrongful and unlawful arrest and
detention.

2. The crux of the
defendant’s case is that the Plaintiff had been arrested and
detained during the course of investigations
against her, because she
had interfered with the said investigations by telephonically
contacting potential witnesses despite express
warning and caution by
the investigators to her not to do so.

3. During the final
pre-trial meeting between the parties, the issues for determination
and facts not in dispute we defined as follows;

3.1 ISSUES OF FACT
TO BE RESOLVED AT TRIAL Whether or not Plaintiff was arrested and
detained by the 2nd and 3rd defendants on allegations
of corruption
in report of the Procurement of beds to Letsholathebe Memorial
Hospital or on the basis of allegations of corruption
in respect to
the Procurement of consumable goods.

3.2 ISSUES OF LAW

3.2.1 Whether or not
the arrest and detention of the plaintiff by the 2nd and 3rd
defendants were unlawful.

3.2.2 If the answer
to 3.2.1 above is in the affirmative, whether or not the plaintiff is
entitled to damages for unlawful arrest
and detention in the sum of
P250, 000.00.

RELEVANT FACTS
NOT IN DISPUTE

3.3 The arrest of
the plaintiff on the 5th May 2009,and her detention from 5th May
2009.

4. The evidence led
during the trial as supported by documentary evidence tendered, and
the issues as defined by the parties, show
that it is common cause
that, plaintiff was arrested and detained on the 5th May 2009. There
is in my view only one issue for determination
in this case, viz
whether the plaintiffs arrest and detention was wrongful and
unlawful.

5. The plaintiffs
evidence is that she is a 48 year lady employed by Ministry of Health
as a Principal Supplies Officer. According
to her evidence, she
resumed duty at her office on the 4th May 2009, having been out on a
trip to Maun, on arrival her supervisor
called her and told her that
two men had come to the office in connection with Hospital beds.
Immediately thereafter the two men
arrived and told plaintiff that
they had looked for her when she was away.

6. Plaintiff had
identified the two officers (herein referred to as “investigators”or
officers) as Reetsang Mathambo
and Pitso Mbaki but during the course
of trial it became apparent, that, the 2nd defendant Kitso Mbaki was
not one of the two officers,
who investigated plaintiff. Proceedings
were then withdrawn against him and these shall be no further
reference to him in the body
of this judgment.

7. The officers,
plaintiff states told her that they were investigating theft that
happened in the department, plaintiff told them
she did not know of
the alleged theft and they insisted that she knew and shall tell them
the truth. The 3rd defendant and his
colleague produced payment
vouchers for the computers that had been bought, by the Ministry. In
terms of the payment vouchers,
the plaintiff was the one who bought
and received the computers.

8. Plaintiff asked
the officers to allow her to call Onalenna, who she suspected was the
person who received the computers. Indeed
Onalenna was called and she
said plaintiff had asked her to pay the Supplies though the goods had
not been supplied. The plaintiff
on the other hand had told the
officers, when shown what purported to be her signature that, it was
a forgery. The officers didn’t
believe the plaintiffs story,
but allowed her to call the suppliers, in the officer’s
presence to ask for the supplier’s
addresses, so that the
officers could proceed to the suppliers and carry out their
investigations to establish any wrong doing
on her part after which,
the officers left.

9. On the 5th May
2009, the two officers came to plaintiffs office and told plaintiff,
that they wanted to search her residence.
Plaintiff asked for a
search warrant and the officers told her they were, to use plaintiff
language search warrants themselves.
They proceeded with plaintiff to
her house in Phase 2, Gaborone West, where on arrival, the officers
asked two men who were walking
on the street to witness the search.
The two men declined and so did plaintiff’s neighbours.
Apparently in desperation the
officers called a child of one of the
plaintiff’s neighbours to witness the search. It not clear on
the evidence how young
the alleged child was. The search was done in
the presence of the said child, and after they were done, having
turned the house
upside down the officers asked the child to sign
some document, signifying that she witnessed the search. He declined
to sign.

10. Plaintiff was
dropped at her office after the search. In the afternoon of the 5th
May 2009, the officers came back and took
plaintiff and Onalenna.
They went to Central Police Station where 3rd defendant said holding
cells were full. From Central Police
Station the officers proceeded
to Urban Police Station, where on arrival 3rd defendant told the
police to detain the plaintiff,
without explaining to her, why she
was being detained. A police woman searched plaintiff and later took
her to the cells. However,
before detention plaintiff asked for
permission from the police lady to call a friend of hers to come for
plaintiffs house keys,
as it was locked and plaintiffs children who
were at school when she left home would have no acces to the house
without the keys.
She was indeed allowed to call the friend and gave
the keys to the friend.

11. Plaintiff was
detained form 5th May to 7th May 2009 in the afternoon. She testified
that there were no blankets at all in the
cells, and that since her
arrest she never had access to bathing water. After her release she
was taken to her office, where the
investigators asked her Supervisor
to allow her to accompany them to their office for her to make a
statement. She says she was
told to make a statement. She made the
statement because she was scared. She says she wrote the statement
form page 2 and 4 and
signed for it, and the last page of the
statement was written by the officers who asked her to sign. The
statement has been discovered
and forms part of the paginated bundle.
I shall say more about the statement below.

12. The plaintiff
says that, as a result of her arrest and detention she had, an attack
which on examination was found to be hypertension,
in June 2009. She
says that she has been on medication since then. That the detention
and arrest had affected her so much that
she had to attend counseling
sessions.

13. Under cross –
examination plaintiff conceded that in her out-patient card it is
recorded that she complained of work related
stress, as opposed to
arrest and detention. Plaintiff does not deny calling the Suppliers
including a company called Tepsen Investments
(Pty) Ltd (herein after
referred to as “Tepsen”, and she says the reason she
called the suppliers was because there
were documents, that the
officers had with them which were purportedly from the suppliers. She
says she called suppliers on the
4th May 2009, in the presence of the
officers and not after they had left.

14. Defendants
called Ishmael Matsiara as their witness. He is an investigator
employed by D.C.E.C. In May 2009, he received a report
to the effect
that plaintiff, had effected payment to Orthosurge (Pty) Ltd for 200
beds for Letsholathebe Hospital. He says he
received the report on
the 8th May 2009, a day after plaintiff was released from the police
cells. He commenced investigations
and established that the beds had
contrary to the report been delivered. He closed his file as there
was no wrong doing on the
plaintiffs part. He says the plaintiffs
detention and arrest had nothing to do with the hospital beds, and
that he never detained
plaintiff himself in connection with the
hospital beds.

15. The second
witness for the prosecution was Thuso Rasetshwane an employee of
Tepsen Investments, at the time of his evidence
and at the material
time. His evidence is that Tepsen supplies Information Technology
products and accessories including consumables
to Government and the
general public. In or around April/May 2009 investigators from
D.C.E.C visited Tepsen, these officers were
Mkhiwa and Mathambo. The
officers showed the witness a Government Purchasing Order for
tonners, they also produced some documents
and some invoice. That the
Government Purchasing Order had been completed by Onalenna,
plaintiffs colleague. The officers wanted
to know if the items in the
Government Purchasing Order had been delivered. His answer was that,
they had not been as Tepsen’s
own suppliers had not delivered.

16. Rasetshwane says
that he discovered that despite non¬delivery payment had been
made to Tepsen. That a day before the visit
by the officers someone
from Health

Ministry supplies
department had called asking about the goods and in response the
witness said they were having problems with the
shipment. The caller,
the witness stated was not Onalenna. The witness told the Directorate
on Corruption and Economic Crime officers
about the call, he was
unable to say who the caller was, because he does not remember the
names of the person, let alone whether
the said person disclosed
his/her names.

17. The last witness
for the defence was Mbakisi Ntshiwa an investigator with D.C.E.C. He
investigated fraud allegations against
plaintiff. The allegation was
that plaintiff had defrauded Government some money by initiating
payments for undelivered goods,
one of the companies who had
apparently been paid was Tepsen. The reason why plaintiff was
investigated was because her name appeared
in the Government
Purchasing Orders at the center of the investigations together with
her National Identity Card Number. The witness
was with 3rd defendant
at all times. They visited plaintiffs house in Phase 2 for a search,
whilst there, they were unable to find
an independent witness, but
later someone came to witness the search, which they looked for more
documents but found nothing. They
then went back to the plaintiffs
office. Before parting with plaintiff at her office, the witness said
they told her to keep investigations
against her confidential and not
to phone the suppliers. He stated further that, on the 5th May 2009,
plaintiff was arrested for
interfering with investigations.

18. From the
evidence the plaintiff was confronted with allegations of fraud in
the morning of 4th May 2009, on the 5th May 2009,
more than 24 hours
later, plaintiff is searched at her house and nothing is found. In
the afternoon of the 5th May 2009, the plaintiff
is arrested and
detained for two days, in which period she has no blanket despite the
cold weather conditions, she has no access
to bathing water. The
reason why she is arrested and detained is because she had interfered
with investigations. No evidence is
led by the defendant with respect
to how she interfered.

19. The second
witness for the defence who was apparently called to corroborate the
officers allegations of interference does not
in the slightest link
plaintiff with the alleged interference. All that remains is the
investigating officer statement which is
inherently suspect and I
have no difficulty disbelieving it, especially when one takes into
account their exuberance during the
course of their investigations.
For instance there is no paper work by officers in respect to the
investigation, other than plaintiffs
statement, which as I indicated
above is written by the plaintiff in the first two pages and, the
last page by one of the officers.
The handwriting in respect to the
two versions of the statement is clearly not the same, even the pens
used are different, the
later having been drafted with a very fine
ball point than the former. I need not be a handwriting expert to see
the difference.
It is also not clear from defendant’s evidence,
why Onalenna was arrested and taken to the police stations with
plaintiff,
if as the defendants argue it was plaintiff who interfered
with investigations. I am aware that on the evidence there is nothing

to show what became of Onalenna after the arrest by the officers at
the Ministry of Health offices, but her arrest gives rise to
doubt
about the authenticity of the defendant’s explanation. As I
indicated above an investigation diary or a statement by
the officers
made during the investigations if discovered, that is assuming there
was any, could help the defence’s story.

20. The onus where
the plaintiff’s arrest has been admitted rests on the
defendant, as was said by Tebbutt J.P in the case
of Sekopye v
Attorney General 2006 (1) BLR 270 (CA), that

“It is
necessary to refer briefly to the legal position in a claim such as
the present. It is now well established that an
arrest is prima facie
considered odious, being an interference with the liberty of an
individual, the onus, where an arrest and
detention of plaintiff are
admitted, rests on the defendant in casu the police – to justify such
arrest and detention … In order
to acquit the onus it must be
proved, on a balance of probabilities that reasonable grounds existed
at the time of the arrest for
suspecting that the person arrested had
been involved in the commission of the offence in question”.

21. My attention has
been drawn to the provisions of section 28 of the Criminal Procedure
and Evidence Act; CAP (08:02), which reads
as follows;

Every peace officer
and every other officer empowered by law to execute criminal warrants
is hereby authorized to arrest without
warrant –

a) every person who
commits any offence in his presence;

b) every person whom
he has reasonable grounds to suspect of having committed –

i) any of the
offences specified in the Penal Code, other than the offences
specified in such Code and the other enactments as are
set out in
Part ii of the First Schedule to this Act;

ii) any offence,
other than an offence specified in the Penal Code, the punishment for
which maybe a period of imprisonment exceeding
six months, without
the option of a fine;

iii) any offence,
other than an offence specified in the Penal Code, where the law
constituting that offence provides that such
arrest may be made,

c) every person whom
he finds attempting to commit an offence, or clearly manifesting an
intention to do so.

My understanding of
the above section is that law enforcement agents are empowered to
arrest without a warrant upon reasonable grounds
to suspect that an
offence has been committed, and that is in my view meant to stop
arbitrary and indiscriminate arrests and detention
of law abiding
citizens. The section is an exception to the general rule. An officer
who arrests without a warrant, must be able
to give a very convincing
and sensible explanation why the arrest was effected, because the
right to liberty is a fundamental right
and all arrests are Prima
fades illegal, see the case of Newman v Prinsloo and Another 1973 (1)
S. A 125, cited with approval in case of Tharesegolo v Attorney
General 2001 (2) BLR 730 in and Mosanida v Attorney General 1994 411.

If the plaintiff was
arrested for interference by calling Tepsen, and Onalenna for
something else, then why the grand coincidence
of their simultaneous
arrest and trips to the police stations.

22. On the question
of damages there is no evidence linking plaintiffs hypertension to
the unlawful arrest and detention. It is
also not clear whether the
plaintiffs arrest was done in the presence of other people or not. On
the aggravating side is the exuberance
and excitable conduct of the
officers. They arrest plaintiff without a warrant, detain her for two
days, fail to ensure that she
has a blanket to wear in the cells
where she was sleeping on a concrete floor in winter. They also fail
to ensure that she is given
water to bath during the time that she is
in the cells, and throughout all these process no paperwork is done
by the officers with
respect to their investigations. The law
enforcement agents should bear in mind at all times when executing
arrests of suspects,
that the person is at that stage still innocent
until his guilt is proven in a Court of law. The allegations against
the suspect
may turn out to be false, resulting with the person not
being prosecuted at all as was the case here. Most importantly
suspects
are human beings, just like all of us, and must be treated
in as much a humanly fashion as possible.

23. In the instant
matter the investigations failed to unearth adequate evidence
resulting in the plaintiff not being prosecuted
at all. The officers
conduct in drafting an additional statement for the plaintiff is also
unacceptable, when they had initially
allowed her to write her
statement in her own words. Why write a statement for plaintiff and
ask her to append her signature after
she had demonstrated to have
capacity to draft it for herself. This is one of the matters that
make the motive of the arrest questionable,
more so that it’s
not clear, when the plaintiff was absolved of wrong doing. Plaintiff
has no doubt, agonized over her possible
prosecution for sometime.

24. I looked at
decided cases for guidance with respect to the amount to be awarded.
I have looked at the cases of Mosanida v Attorney
General (Supra),
where in 1994 plaintiff was awarded P5000.00, the court having taken
into account that he had lost his job as
a result of the arrest and
detention. Tlharesegolo v Attorney General (supra), where plaintiff
was awarded P7500.00 for the same
claim as the present, I bear in
mind that the said cases were decided more than a decade ago.

25. The plaintiff is
entitled to a higher amount than in two cases referred to above for
obvious reasons. I therefore, having taken
into account the peculiar
circumstances of this case make the following orders

i) Defendants shall
pay plaintiff the sum of P30, 000.00 as damages for wrongful arrest
and detention.

ii) Interest on the
said sum at 10% per annum a tempore morae from date of judgment.

iii) Defendant shall
pay costs of the suit to be taxed or agreed.

iv) Plaintiff shall
pay 2nd defendant costs of the suit up to and including the 12th
February 2013.

DELIVERED IN OPEN
COURT AT GABORONE

ON 26th APRIL
2013

R.S Busang
(Judge)

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