In a bid to stop a prominent Gaborone based lawyer, Dick Bayford from calling for evidence against his character, Directorate of Intelligence and Security Services (DISS) Director General Isaac Kgosi is threatening a defamation law-suit against him.
The DISS boss who is suing the Botswana Gazette for P2 million further threatened to seek “increased aggravated damages” from the newspaper should they go ahead with their character evidence against him.
In a letter dated 9th October 2015, addressed to Bayford’s and Associates and copied to Justice Nthomiwa, Kgosi’s lawyers, chibanda makgalemele & co states, “we bring to your attention that by drawing this notice and filling it with the Registrar of the High Court; you have made yourselves party to and have published the defamatory matters contained in that notice. Having published that defamatory matter you are party to the defamation and are liable personally for the defamation which you have published regardless of any separate liability of your clients, the Defendants (Botswana Gazette).
“As you well know, for a legal practitioner to raise the defence of qualified privilege for the publication of defamatory matter the practitioner must show that there is some probable or credible foundation for the defamatory allegations which have been made. Even cursory enquiry would have shown that there is no substance to the very serious allegations made in the Notice to adduce Evidence on Plaintiff’s Character signed and published by yourselves on behalf of your clients.
“You are given this opportunity to immediately withdraw and retract those statements and to unconditionally apologise (accompanied by an appropriate publication of that apology). Should you not do so within 5 (five) days of service of this letter upon your office, then our client reserves his rights to seek legal recourse which he deems appropriate which may include institution of legal proceedings against you separately from your clients.”
Pepsi Thuto of chibanda makgalemele & co would not be drawn into discussing the letter saying, “”I don’t talk to the press about my cases without authority from my client. I’d first have to get permission from my client.”
Joao Salbany of Bayford’s and Associates on the other hand charged that, “we take exception to the demand and threat of litigation against Mr Bayford. We view it in a very serious light and we shall defend it. We take exception to a correspondence of this nature which is a demand being copied to the presiding judge hearing the matter between Mr Kgosi and Botswana Gazette.”
In their letter to Bayford’s and Associates, Kgosi’s lawyers stated that the DISS boss “vehemently objects to your notice in the strongest terms.” They argued that there was no provision in Botswana’s Rules of Court for a notice to adduce character evidence. “Your notice appears to be modelled on Order 36 Rule 37 of the English Rules of Court relating to character evidence in an action or a tort for libel or slander which is of course, different to the delict of defamation in Botswana. While we are aware of decisions such as Klisser/SA associated Newspapers 1964 (3) SA 308 (c) which suggests that a Defendant should be informed of an intention to call character evidence; there is no suggestion in either Botswana or for that matter South African authorities that any kind of formal notice should be given nor is any such notice prescribed in terms of the law.”
Salbany of Bayford’s and associates on the other hand argued that there was a precedent in Botswana. ‘’ Whilst it is not contained in the rules, the common law indicates that such a law is required. Only out of abundance of caution we made it a formal notice. We are acting in accordance with client’s instructions.”
Sunday Standard can reveal that notice to adduce evidence on plaintiff’s character was filed in the 1980s in a defamation action in which Kalahari Arms Hotel in Gantsi was suing the Daily News and its then editor and founder of Botswana Gazette Alauddin Osman. The notice to adduce evidence on plaintiff’s character was also filed before Justice Maruping Dibotelo a few years ago in a case in which former Minister Tebelelo Seretse was suing the Botswana Guardian, its then editor Outsa Mokone and reporter Morula Morula. The Botswana Guardian won the case in which video footage of Seretse in an altercation with his staff was played in court as part of the character evidence against the former minister.