Monday, September 28, 2020

Justice Rannowane dismisses suit against DIS

Acting Judge Terence Rannowane on Friday dismissed an urgent application by two foreign nationals who had filed a suit against the Directorate of Intelligence and Security (DIS).
The two applicants had also cited a security intelligence operative as a second respondent, invoking a sense of anticipation among Francistowners as they relished prospects of seeing an intelligence agent unmasked.
The two foreign nationals, Jamal Ali and Abdille Mohammed Ali, both directors of Binghi Enterprises, an import car dealership, had filed an urgent application before Rannowane, seeking the court to restrain DIS agents from harassing them, and also asking the court to order the DIS agent to return their passports, which she had seized on December 31.
Jamal and Abdille Ali were first arrested on December 4 and detained at Francistown State Prison on a warrant that indicated that they were suspected illegal immigrants as there were irregularities in their work and residence permits. They would later be released without charge. The said DIS agent would on December 31 come to their place of business, re-arrest them and confiscate their passports on the allegation that there was a loophole in their documents.
Acting for the applicants, attorney Morgan Moseki, of MCM Moseki Attorneys, told the court that the general conduct of the DIS agent, and the fact that his clients had been arrested and released without charge and that their passports had been confiscated for close to two weeks, was tantamount to harassment. He also said that the confiscation of his clients’ passport compromises their business as it entails frequent travel to South Africa, adding that they also use the passports for identification during bank transactions.
In his ruling, Justice Rannowane said that the applicants’ request that the second respondent should be restrained and ordered to stop harassing the applicants, and that they should also be ordered to surrender the confiscated passports are clearly interdicts against the government or public officers, which is a contravention of Section 9 of the state proceedings act.
“The court finds that relief sought by the applicants cannot be granted by this court as this will offend against Section 9 of the act in that the court does not have jurisdiction to grant an order for the type of interdict sought or specific performance against the government or public officers,” he ruled.
He also ruled that by citing the DIS agent as a second respondent the applicants had flouted Section 24 of the intelligence and security services act, which provides that no action shall be brought against any member of the DIS.
“In the premises all the remedies as relate to and as against the second respondent are not competent before this honorable court and should be dismissed” he said.
He also ruled that the applicants had flouted the intelligence and security services act, as they had not followed the prescribed procedure while filing complaints against the directorate. While the act states that all complaints against the directorate must be lodged with the registrar of the high court the applicants approached the high court prematurely and thus rendered their application incompetent.
While attorney Moseki had submitted that the applicant is urgent in that his clients would have suffered serious prejudice as businessmen if the application is enrolled in the normal roll in terms of the rules of the court, Justice Rannowane ruled that the applicants had failed to disclose sufficient grounds with sufficient detail to satisfy urgency in terms of the law. “The grounds relied upon to establish urgency do not in themselves disclose or support a conclusion that this matter is urgent” he said.
Justice Rannowane also agreed with Moloise in that the case is not properly before the court because the applicants had flouted Section 4 of the state proceedings act as they had failed the give the statutory one-month notice before launching the suit against government.
He therefore dismissed the application with costs.
Meanwhile reports indicate that the two businessmen are intending to launch a P2.5 million suit for unlawful arrest against government. The Regional Immigration Officer and the DIS have been cited in the suit. The two are seeking P1million compensation for unlawful arrest, another P1 million for unlawful detention and a further P500 000 for loss of business. They are also asking that the defendants should bear the costs of the suit. Attorney Morgan Moseki has already submitted a letter to the Attorney General’s Chambers and given them 30 days to respond, failing which summons will be issued.

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