The case in which a 35-year-old Ramotswa woman, Obakeng Madubela, is suing a certain Sadi Nokane, also from Ramotswa, for defamation and violation of her right to privacy by divulging the former’s HIV status in public has not wholly accepted by the High Court, because it has been overtaken by time.
It was ruled by Justice Newman that, basing on the filed affidavits and evidence led before the court, the aspect of the suit that relate to defamation cannot hold, as the law has not been complied with.
Section 4 (2) A 1 of the Prescription Act, provides that the relevant processes be finalized within a period of 1 year in an act of defamation.
Evidence led by the Plaintiff, in presenting her circumstances to the court, indicated that the first time she was publicly abused by the defendant was on December 25th, 2006 at a bar called Dinompolae, with the second incident taking place in June, 2007.
“Ms. Nokane confronted me in the presence of my friends and other people and sarcastically asked me when I intend divorcing my husband before I infect him with my HIV viruses,” stated Madubela.
She further queried that the defendant continuously addressed her as an HIV/AIDS patient.
The words were uttered in Setswana and she said, ‘ke go boditse gore o tlhala leng ngwana wa batho, molwetse ke wena wa mogare.’
Six months later, the defendant is reported to have again abused the complainant in front of her co-workers at Score Supermarket, adding that she failed in her marriage because of her HIV positive status, reiterating the same question she previously asked her, as to when she plans to divorce her husband, before she infects her with the virus.
The High Court also heard that after these two occurrences the complainant then sought the intervention of the village elders who unsuccessfully attempted to reconcile the two as the accused was denying every allegation against her.
Although proceedings were appropriately instituted in June 2008, a year after the last incident which happened in June of the previous year, the summons was reportedly delayed by a month, to July 2008.
Consequently, the Prescription Act naturally would not accommodate even a month extension to the one year mandatory period, in acts of defamation. Thus the aspect of the suit concerning defamation was thrown out.
However, Justice Newman would not make a conclusive ruling adding that on account of the fall of the part that dealt with defamation both parties make their final submission on the 20th May 2009, where it is expected that Madubela’s attorney, Uyapo Ndadi of BONELA, would push for the aspect dealing with violation of the right of privacy.
In addition to the fact that the Constitution of Botswana projects individuals’ right to privacy, it appears that the credibility of the evidence given by witness, supposedly in favour of the defendant might serve as a plus, for the remaining contest.
The most critical component of the evidence lay in the contradictory responses given to the question for plaintiff’s attorney regarding the mental state of the defendant on the dates under discussion.
The defendant had told the court that she was not drunk and that she only drank Coke on the dates in question, whilst witnesses talked of her taking Tassenberg wine and the other spoke of juice, whereupon it seemed evident that they could be relied on only in as far as they could not deny most of what Nokane uttered.