Monday, October 3, 2022

Out-of-court settlement proving difficult in high-profile defamation case

There are no prospects for an out-of-court settlement in a case in which a sitting judge and a former Managing Director of Debswana Diamond Company are suing Duncan Gaetsaloe, a former Debswana employee and businessman for defamation.


When the matter resumed at the Gaborone High Court last week, Justice Zein Kebonang, asked the lawyers in the matters if the parties had been able to settle out of court.

“Not quite, my lord,” said Tsholofelo Mvungama who is representing Justice Key Dingake and Black Marole. “Presently there are no prospects of settlement. The parties continue to explore the possibility of settlement with the active assistance of their attorneys.”


Itumeleng Segopolo is representing Gaetsaloe.


While an out-of-court settlement seems unlikely, the judge would really prefer it not least because of his own involvement in the matter. The latter became apparent near the tail-end of Mvungama’s submission.

“Can I ask you something off the record?” Kebonang asked the lawyer and at the end of an answer in the affirmative enquired whether “the second plaintiff [Dingake] is willing to give evidence.”

“Yes, my lord,” Mvungama replied.


Without elaborating, the judge said that such development would “put me in a difficult position” and added that it would be in the plaintiffs’ interest to settle out of court. This particular exchange between Kebonang and Mvungama will not go into the court record because it happened off the record. While the judge didn’t elaborate on his statement, the case’s history may be helpful in deciphering it. Kebonang is the latest in a parade of judges to be tossed a hot-potato defamation case. When first filed in 2010, the matter was initially assigned Justice Zibani Makhwade and went through at least six judges, including the recently appointed Botswana Ambassador to the United States of America, Justice David Newman. At the penultimate count, the hot potato had been tossed to Justice Terrence Rannowane who, in turn, passed it on to Kebonang. As with colleagues before him, Rannowane had found himself unable to proceed with the matter and recused himself. It is unclear what Kebonang will do with the case himself but its history suggests that judges are unwilling to handle a matter in which one of their own is a litigant.


Dingake and Marole are accusing Gaetsaloe of defaming them through a newspaper article in which he alleged corruption on their part. The Minister of Infrastructure, Science and Technology, Nonofo Molefhi, whose name was also mentioned in the alleged corruption, has successfully sued and been awarded damages.


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