Mathambo has the President by the short hairs

• Challenges his dismissal from DCEC
• Mathambo wins first round

Former Director General of the Directorate on Corruption and Economic Crimes (DCEC), Brigadier Joseph Mathambo, has instituted legal proceedings against the Attorney General, the President and the Government of Botswana challenging his removal from the top DCEC post.

Mathambo was dismissed from the DCEC in August 2020 and sent back to the barracks where he had been seconded from.

His review application is before the Gaborone High Court where he is represented by Advocate Dr. Sidney Pilane. Mathambo is pursuing several orders, the main one being “the reviewing, correcting and/or setting aside the decision of His Excellency the President of the Republic of Botswana (2^nd Respondent) made on 24^th August 2020, directing that the Applicant revert to the position of Brigadier, on terms and conditions of service of the said rank, upon termination of his secondment as director general of the Directorate on Corruption and Economic Crime (DCEC).”

A bone of contention arose about the date on which Mathambo received his letter of termination. The respondents opposed Mathambo’s application and made an Order 33 Rule 1 application “wherein they sought the setting aside of the main application, as irregular or improper step or proceeding.

“The pitch of the Order 33 application is that the main application for review was brought outside the requisite four months period, without leave of the court, as envisaged by Order 61 Rule 8 of the Rules of the High Court,” Justice Michael Leburu noted.

Ruling in favour of the former head of DCEC, Justice Leburu dismissed the respondents’ analogy on grounds that their opposition to block Mathambo’s correction of affidavits carried no substance as the question of date was important in fully determining this application.

“According to Joseph Moenyana Mathambo, there is a patent error in his founding affidavit filed in the review application with respect to the date he received the letter containing the decision sought to be reviewed and set aside,” said the judge. “The error is that he did not receive the letter on the 24^th August 2020, as averred in his founding affidavit. The correct date, according to him, is “26^th August 2020.”

However, former Permanent Secretary to the President (PSP), Ellias Magosi, contended this. “I gave the letter of 24 August 2020 to the applicant on the morning of 26 August 2020, informed him of the tenor of the letter, the decision it contained having been made and handed down by the President on 24 August 2020,’’ wrote Magosi.

The court determined that in the current proceedings, the affidavit serves a role of a pleading and evidence. “On the basis of the foregoing, I therefore determine that an affidavit in motion of proceedings is capable of being amended as it constitutes a pleading as well as evidence,’’ Justice Leburu said.

He noted that for determination of whether the substantive application has been brought outside the four months’ time frame, the court has to establish the “date upon which the dice or clock started ticking.”

The court ruled that “the application by the Applicant to correct the founding affidavit is granted with no order as to costs, the Order 33 application by the Respondents is dismissed with costs and the filing of further pleadings shall be in terms of the Rules of the High Court.’’

The court set 15 November for the matter’s status hearing.

Mathambo was removed from the DCEC top post in August 2020 following a reported fallout with the head of the Directorate of Intelligence and Security Services, Brigadier Peter Magosi, over prosecution of the infamous “Butterfly” case involving a secret agent by the name Welhiminah Maswabi, who was accused of defrauding the Bank of Botswana of P100 billion in a conspiracy that allegedly involved former president Ian Khama and founding DISS director Isaac Kgosi.

At the time of his dismissal, sources said President Mokgweetsi Masisi chose to save Magosi who had bungled the case and to sacrifice Mathambo who is said to have differed with the DPP and DISS over the direction that the matter should take.