Former judge Unity Dow has accused Botho Seboko’s attorneys of fraud, forgery and fabrication following the latter’s interlocutory application to have his own replying affidavit struck out.
Seboko (officer at Directorate of Intelligence and Security) filed a defamation lawsuit against Dow in early September 2022 after the former minister allegedly claimed the controversial Facebook character, Museveni is, in fact, Seboko.
Among other things, Seboko sought the High Court to declare that Dow’s conduct constitutes cyber stalking or offensive electronic communication contrary to sections 17 and 18 of the cybercrime and computers related crimes Act, 2018.
He also sought the court to direct Dow to refrain from maliciously or repeatedly using electronic communication of an offensive nature to harass him in violation of section the Act. Following Dow’s answering affidavit Seboko’s lawyers filed a replying affidavit which now forms part of the current interlocutory application seeking the court to strike it out.
According to Seboko he was out of the country at the time he was required to have filed the replying affidavit.
“I left for my trip abroad without having prepared, signed and filed the said replying affidavit as the answering affidavit filed by the respondent (Dow) is voluminous and canvasses a broad spectrum of issues,” Seboko says in his latest application. “Thus it required sufficient time to be carefully studied and understood before being replied to.” Seboko says together with his attorney Dr. Obonye Jonas elected to prepare the replying affidavit through the telephone and other communication platforms. While still abroad Seboko says he was then sent the affidavit to study, sign and send back to him for lodgement at court but owing to logistical difficulties in the US, he could not get the affidavit commissioned.
“I am not familiar with the laws and legal processes of the United States as to who was competent to commission the affidavit for me, and where such commissioners of affidavits are found. The difficulty was compounded by my congested work schedule,” Seboko’s court papers read.
He says he was then advised by his lawyer to append his electronic signature to the document and send the affidavit back to Botswana electronically for commissioning and filing in order to meet the deadline.
He says the affidavit was then presented to Professor Badala Tachilisa Balule, a law professor at University of Botswana for commissioning. The affidavit was commissioned and filed with the High Court. Seboko says however that while compiling his affidavit his lawyer, Jonas, omitted to attach annexures.
Jonas then refiled the replying affidavit (after deadline). They would then, with Dow’s permission, move an application for the initial replying affidavit to be struck out and be replaced by the second one.
In response Dow says the court should demonstrate its displeasure by not just dismissing Seboko’s interlocutory application, but the main application as well, with costs.
She accuses Seboko and his lawyers of conspiring to lie to the court for failing to disclose he was out of the country and had failed to personally have his papers commissioned. “The conduct of Attorney Jonas and Professor Badala Tachilisa Balule …if indeed the professor so conducted himself, constitutes fraud and is professional misconduct on their respective parts,” Dow says in her court papers.
She says the conduct of Professor Balule …constitutes fraud and is professional misconduct, adding that Balule will be served with the affidavit to give him an opportunity to admit or deny the “very serious” allegations of complicity to mislead the court.
“It is not a small matter for an officer of this court to claim that an event took place at a place, date and time that he names, when no such event took place and could not even have possibly taken place. Dr. Jonas’ knowledge of rampant forgery, fraud and fabrication does not justify his commission of same but rather enjoins him to report same to authorities. The admission is shocking, to say the least.”
She says Seboko should not be afforded a second chance, adding he should not be allowed to benefit from being caught in a lie.
“The conduct of the applicant (Seboko) and his attorney as well of any other attorney who was part of the fraud perpetrated on this court, is so extraordinary that it does call for the applicant to seek the extraordinary remedy of asking the court to strike out his own papers.”
