The Botswana High Court in Gaborone this week ruled that the terror and corruption charges brought in 2019 by the state against former intelligence official Welheminah Maswabi — codenamed Butterfly — were fabricated, and ordered action to be taken against the high-ranking officials responsible. 

Motsepe did not wait for the judgment. In an earlier bid to clear her name, she enlisted Judge Dennis Davis to write a legal opinion to support a possible future appearance in Parliament where she was hoping to explain her case.

Davis, in his opinion dated 30 July 2021 and that has not been made public before, similarly found that the case was based on falsehoods. 

He also rubbished Botswana’s request for mutual legal assistance to South Africa, for which the country contracted AfriForum’s Gerrie Nel.

“The application for Mutual [Legal] Assistance is based on so flimsy a legal edifice so as to justify the conclusion that these proceedings are based on a political as opposed to a legal agenda,” he wrote. 

He also said the affidavit in this regard by Botswana’s assistant director of public prosecutions, Priscilla Israel, “is truly a problematic document in that it is replete with pure unsubstantiated speculation”.

Davis states as an example the issue she took with the South African Reserve Bank stating that no monies passed through its records from Botswana by way of a remittal. In her affidavit, Israel stated: “Significantly the Reserve Bank does not state that it did not authorize the release of the funds but rather that it could not find any record of the transaction referred to as well as the authority. It is my averment the results of our request will bear fruitful”.

Davis said it was “disingenuous” of her to cast doubt on the Reserve Bank’s response to the allegations about monies being remitted to South Africa. This “has no place in a court of law in that it is an attempt to use hermeneutics to counter the obvious,” Davis wrote. “No such money came into the country.” 

Davis also took issue with the allegations that this money was paid into South African banks — even though these banks wrote letters last year to say the accounts mentioned in Botswana court papers did not exist.

“To persist with these allegations is to suggest that both the South African Reserve Bank and a range of South African banks were either party to a conspiracy, have misrepresented the true position or have all been grossly incompetent,” he wrote. 

Referring to the request for mutual legal assistance, he said Israel’s course of action, assisted by AfriForum, “seriously calls into question the very integrity of the South African banking system and the key regulatory institution”. He said there was no evidence for this course of action.

This “allows for only one reasonable inference to be drawn, namely that political considerations have overridden any legal justification for pursuing this application which should thus be treated as an unsubstantiated attack on the country’s banking system.” 

In an earlier opinion, dated 25 June 2021, Davis said, “I have found not a jot of evidence [in the court papers] which could be employed against the Ambassador, save for those motivated by considerations that have no basis in law”. 

In government circles too, there had been unease about the way Botswana contracted AfriForum. Justice spokesperson Chrispin Phiri said South Africa’s department of justice, in a letter to its counterparts in Botswana, “raised concerns about how our government was engaged in the process of requesting mutual legal assistance”.

He said South Africa was uncomfortable with the fact that Botswana didn’t use “very established diplomatic channels” instead to engage the government, but chose a third party which describes itself as follows:

“An organisation that works to ensure that the basic prerequisites for the continued existence of Afrikaners are met by working outside the workplace on an international, national and local level to manage the impact of and influence the current political realities that face Afrikaners, while working simultaneously to establish sustainable structures through which Afrikaners can ensure their own future independently.”

Phiri said that in light of this week’s judgment in the “Butterfly” case, AfriForum’s statements on South Africa “are regrettable”. Nel previously questioned whether South Africa’s apparent reluctance to offer mutual legal assistance had something to do with the fact that Motsepe was President Cyril Ramaphosa’s sister-in-law.

Phiri said he also hoped the judgment would strengthen the department’s rescission application in this matter in South African courts. 

Nel said on Monday that the judgement wasn’t the end of the road for AfriForum’s involvement. “I am back in court in Botswana on 14 September. We will argue the withdrawal,” he said, referring to the case earlier this month. DM