The marathon case in which Justice Mpaphi Phumaphi is suing media consultant, Methaetsile Leepile, for defamation closed an important chapter on Tuesday with the last witness, Mmegi managing director, Titus Mbuya, giving evidence.
The case arises out of reporting that The Voice did on a paper that Leepile wrote in 2001, critiquing the ethnical composition of the judiciary and Attorney General Chambers, which he determined to be heavily biased in favour of the Kalanga. Phumaphi is suing Leepile for P850┬á000.
Leepile defence is that the paper was a draft of a chapter of a book he was working on at the time and was leaked to The Voice with neither his knowledge nor authority. Giving evidence, Mbuya said that after Leepile gave him a copy of the paper to review, he in turn passed on copies to attorney Omphemetse Motumise, Professor Bojosi Otlhogile at the University of Botswana and then Mmegi editor, Sechele Sechele, to undertake similar task. The review process was to happen quietly out of spotlight and Mbuya said that he stressed to the trio that the document was confidential. He never gave it to The Voice, he said.
Parks Tafa, Phumaphi’s lawyer, dwelled briefly on “confidential”, asking Mbuya if – as often happens with classified material, the paper was marked as such. While there was no such marking, Mbuya said Leepile had verbally told him that the document was confidential. Tafa put it to Mbuya that his handling of the document did not accord with confidential protocols, leading the latter to concede that “maybe I was not discreet about handling the document”.
Tafa sought precise details of Motumise’s feedback but Mbuya said that he couldn’t disclose it. Otlhogile’s feedback, which reinforced Mbuya’s own impression, was that the methodology Leepile had used was not rigorous enough. On one hand concurring with Tafa’s point that if the methodology was flawed, the conclusion would be “questionable”, on the other Mbuya said that in as far as his involvement went, whether the outcome was not tainted or not was not a consideration.
Sometime after the review process began, Leepile emailed Mbuya to express concern that his draft was being widely circulating around town. Justice Gudu Walia asked Mbuya why Leepile had to write him when he could go to his office in person. The response was that a telephone call from Leepile followed the email message. Mbuya could not recall whether he ever responded in writing to the message.
While maintaining that he had given the draft to three people only, Mbuya admitted that he could also have been “careless” and left Leepile’s paper lying on his desk. That raised the possibility of someone picking it up and making copies for themselves. Mmegi’s managing editor at the time, Mbuya said that he was involved in the editorial process of the paper and as a result, there was a lot of “human traffic in and out of my office.”
On learning about the leak, Mbuya said that he alerted Sechele (the only other person at Mmegi with the document) asking him how the paper could have fallen into the wrong hands. Sechele denied having been the source of the leak.
The dramatic highpoint of this episode was when The Voice published a story in July 2001 about the paper, quoting very extensively from it. Justice Walia asked Mbuya if he ever considered the possibility that Leepile had himself given his draft document to the paper ever occurred to him.
“That actually crossed my mind,” Mbuya responded.
At this point however, the paper was all over town, causing Mbuya to consider the other possibility of the source being any one of the people who now had the document. The bottom line was that he did not know how The Voice acquired the document. In response to Tafa’s question, Mbuya could not recall meeting with Leepile to discuss the paper’s story but admitted the possibility of them having an informal discussion over the issue because of the nature of their working relationship and frequency of their meetings. To Walia’s question of why Mmegi did not consider publishing the document, Mbuya said that Leepile had not given authorisation for such.
Tafa’s case is that the paper intended to publish the document because there is neither evidence that Leepile intended to write a book nor any indication of when the book was going to be published. He said that Mbuya had Motumise troubleshoot through the paper for defamatory material with a view to publishing it in Mmegi. While admitting the statement about the legal review, Mbuya pointed out that the ultimate decision to publish or not was the editor’s. When Tafa countered by saying that it would be “foolish” to disregard a lawyer’s advice, Mbuya’s rebuttal was that on the contrary “it wouldn’t be foolish” because the editor has the final say, legal advice notwithstanding.
“The editor would have made the call whether or not it was in the public interest to publish,” he said.
Tafa contended that Motumise’s involvement was a clear indication of Mmegi’s interest in Leepile’s document. Conversely, Mbuya asserted that if either he or Leepile wanted to publish the document in Mmegi, they would have gone ahead and done so. He reiterated his point about the document having been a draft, a work in progress that was not in publishable form. Interjecting here, Justice Walia suggested to Mbuya that “anything can be published.” When the Mmegi boss contested that, the judge elaborated his statement by saying that while consequences of might be present a problem, it is possible to publish anything.
“To us as journalists, the most important thing is public interest, not consequences,” Mbuya said.
Tafa could not get Mbuya to comment on allegations of nepotism and corruption contained in the document.
“I don’t think I’m qualified to comment on that,” said Mbuya, adding later that his chief concern was the methodology that Leepile had used for his research.
Having dragged on for 12 years now, the case could be drawing to a close. In 2009, Leepile moved an application for Walia recuse himself from the case on account of an “enduring friendship” between him and Phumaphi. Leepile’s lawyers argued that their client would not be given a fair and impartial hearing because Justices Walia and Phumaphi were not only colleagues, but personal friends as well. They stated that the two judges had practised in the same division and worked together from the same premises in Lobatse before relocating to Francistown, and that their friendship even extended to the golf course. The application was dismissed with costs and Walia stayed on as judge. Last week, three full days of court time (Monday to Wednesday) were blocked aside to deal with the matter but only half of it was used with Mbuya leading evidence as well as being cross-examined and re-examined on Tuesday morning. In the next phase, the lawyers will make written submissions that will address issues that the court want unravelled.