President Ian Khama and the Director of Directorate on Intelligence and Security Services (DISS) Isaac Kgosi’s attempt to block a court application by two deported Ugandan refugees failed Friday when Francistown High Court Lot Moroka ruled Friday that they have a case to answer.
The Minister of Defence, Justice and Security Shaw Kgathi, Commissioner of Prisons Silas Motlalekgosi and Attorney General Athalia Molokomme are also cited as respondents in the case.
The matter arises from a decision by attorney Martin Dingake to launch a Contempt of Court application challenging the deportations of Musa Isabrye Timothy Yamin, despite a court order prohibiting their deportation. The lawyer wants the respondents to show cause why the respondents should not be committed to jail for contempt of court.
Ndiye Balule from the Attorney General who is representing President Khama and other top respondents argued that Dingake had no legal right to represent the two men because they had not authorised him to represent them when filing the contempt of court application.
But Moroka found that the peculiar circumstances of the case are that the two men were declared prohibited immigrants and were detained by the respondents. He said the refugees were deprived of access to attorney; they desired to file an application on urgency challenging their imminent deportation.
“The embargo on access to lawyers made it impossible for the applicants to sign the court papers including the powers of attorney,” said Moroka. He said Dingake in his affidavit alleges that he was denied an opportunity to privately consult the two men. Police granted limited and conditional access and he could therefore not take proper instructions from the two men.
In essence, Moroka said, the respondents are saying Dingake must and out to have obtained authority from the two refugees while they themselves made it possible to do so. The contempt of court application, Moroka said can be made by any party to the proceedings.
“Therefore the contempt of court proceedings may be instituted by the court, an attorney or any of the parties to the proceeding whose order is being violated,” said Moroka. Similarly, he said the matters that arise out of the contempt of court application are within the personal knowledge of Dingake.
“The second point on the propriety of his having signed the affidavit originating the contempt proceedings is not in violation of any law,” said Moroka.
Therefore the judge found that the government’s argument that Dingake has no legal right to represent the two refugees in the contempt of court application is without merit. “The matter shall proceed to the substantive contempt of court application,” ruled Moroka.
