Wednesday, October 27, 2021

Motion but no movement in BDF’s Romeo and Juliet case

A year after being given the all-clear, the matter in which a female lieutenant and a male private were kicked out of the Botswana Defence Force for ill-fated Shakespearean romance has yet to be argued at the Gaborone High Court before Justice Dr. Zein Kebonang.

In terms of one very important army rule on intersex relations, juniors are supposed to use their hands to salute and not caress their superiors. Private Kozondu Uariua, got on the wrong side of this rule by carrying on a romantic relationship with Lieutenant Thabang Tlhapisang who, in terms of the BDF’s pecking order, was 11 ranks above him. In terms of army classification, the lady was a “commissioned officer” and her boyfriend a “non-commissioned officer.” Following disciplinary proceedings and an army prison stint for Uariua at the Sir Seretse Khama barracks in Mogoditshane, both were kicked out of the BDF. The couple has approached the High Court to seek reinstatement and when they first filed their papers, they cited the BDF Commander and the Attorney General as first and second respondents respectively

However, after being granted permission to amend their court papers, the couple has now added three more respondents: the Deputy Commander and two lieutenant colonels. The first of the latter is Lt. Col Abel in his capacity as the “appropriate superior authority” and the second is Lt. Col Gaolapise in his capacity as the presiding officer in the disciplinary hearing proceedings against Uariua. This development has become a point of contention between the couple’s lawyers and the Attorney General Chambers lawyers who are representing the BDF.

Making the sort of amendment that the couple was granted permission to make is provided for in the High Court Rules – Order 61, Rule 4 to be precise. In rendering its interpretation of this rule, the state says that such amendments are intended “to give an applicant a chance to clarify an “imperfectly formulated” notice of motion, to introduce new or improved grounds to review the decision complained of as well as to seek additional or varied reliefs. It goes father to state that the respondents’ founding papers clearly wanted the Commander’s decision to be set aside and that in the “purported” amendment, the respondents want to review the decision that the Deputy Commander took following the disciplinary hearing. The state’s argument is that the decision taken by the Commander BDF and the Deputy Commander are different and relate to separate issues.

“The cause of action is new and the parties are different. This is substantively a new application altogether; it is not an amendment as envisaged by Order 61 Rule 4. There is no provision for the respondents’ manner of amendment in the Rules of the High Court,” the state says in its heads of argument.

On the basis of the foregoing, the state is contending that the couple has in effect, brought two different issues which should be separated as such. The other point that the state raises in service of the latter is that the Deputy Commander and the two lieutenant colonels were not served with founding papers as required by High Court rules “but only with subsequent amended papers.”

“This renders the amended notice of motion fatally flawed in law and stands to be struck out. They are also entitled to be served with founding papers for them to prepare a defence and or answer to the claims levelled against them,” the state argues.

Conversely, the argument that the couple’s lawyers have assembled is that “there is nothing irregular or improper” about the way their clients have amended the papers. The elaboration of that point is that the court permitted the couple to amend its papers and that such amendment included “adding or joining other necessary and critical parties” such as the Deputy Commander and the two lieutenant colonels. In driving their point home, these lawyers parse the language used in the court order which was basically to the effect that the applicants are allowed to amend their motion papers.

“The applicants submit that the words “motion papers” refer to all and every court paper(s) filed by them inclusive of a notice of motion. That being the case, the amendment to “motion papers” was not intended by the court to be selective or restrictive of which motions could be amended. The applicants further contend that the amendment was not meant to be selective nor restrictive to any part of the motion papers to the exclusion of others, for example, the reliefs sought but not the parties against whom such reliefs are sought,” say the couple’s lawyers adding that “it would be absurd to amend the reliefs sought without necessarily changing the parties where such change is reasonably incidental to the amendment of the reliefs sought.”

Interestingly and for different reasons, Justice Kebonang and the state find themselves on the same page but at somewhat different positions. On Monday when the matter came before him during the roll-call hearings, the judge queried the legal wisdom of citing the Deputy Commander and the lieutenant colonels when established judicial practice is to cite the most senior officer in an organisation. On such basis, the citing of the BDF Commander only would have sufficed.

While the matter plods through the judicial system, a parallel court-of-public-opinion process is also playing itself out in the grapevine and on social media. Naming names and citing dates, commentators in those realms have questioned why this particular couple has incurred the wrath of BDF’s high command when some other couples under the same circumstances have fraternised but have not attracted the attention of the army’s sex police.

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