The High Court held that the notice prohibiting the applicants’ access to their attorneys constituted a violation of the right to legal representation. Furthermore, the Bill of Rights in the Constitution was available to all, including prohibited immigrants.

The High Court noted that it had issued the interim interdict on the revocation of the applicants’ refugee status on 23 October 2015. To succeed in an application for civil contempt of court, the applicant must prove: the existence of a court order; service thereof or notice; and non­compliance and wilful disobedience. What was in issue was whether any of the respondents were served with the order and wilfully disobeyed it.

The High Court held that the first respondent (Attorney General) demonstrated a willingness to ensure compliance with the order, although he failed to inform the other respondents of the order.  There was no bad faith from the first respondent.

For the second and third respondents (the Commissioner of Police, and the Commissioner of Prisons and Rehabilitation), the Court held that there was no proof that they were personally served with the order.

The case against the fourth and fifth respondents (Police Officers Molebatsi and Setlhako) was proven beyond a reasonable doubt, and they were found guilty of contempt of an order of the court.

There was no proof of contempt committed by the sixth, seventh, eighth and ninth respondents (police Officers Unoziba Rari, Dinotshe, inspector Kombani, Mashuba).

Country
Issuing court
Date of judgment

Refugees; refugee status; revocation of refugee status; detained; rights of detained persons; foreign national; right to legal representation; access to legal representation; access to an attorney; deportation

Case citations
[2015] BLR 717 (HC)
Nationality of refugee/asylum seeker
Facts

This was an application for contempt of court against the respondents. The applicants were Ugandan citizens living in Botswana as recognised refugees and were married to Botswana citizens. The applicants were both fathers of two minor children living in Botswana. The applicants’ refugee status was revoked on 5 October 2015 and they were declared prohibited immigrants and detained in prison. 

The applicants’ families arranged legal representation for them. There was a notice placed at the prison prohibiting the applicants’ access to attorneys. Their attorney sought orders permitting the consultation and prohibiting the respondents from deporting the applicants before the interim interdict on the refugee status revocation was finalized. The court granted the orders, but the attorney was still prevented from consulting with them at an airport prison.

Decision/ Judgment

The court made the following orders:

i. The fourth and fifth respondents were found guilty and convicted of contempt of court and were called upon to show cause why sanctions could not be levied against them. They were ordered to pay costs of suit on the ordinary scale. They were ordered to appear before the High Court court on 3 December 2015 at 11.00 am.

ii. The rest of the respondents were absolved of any wrongdoing.

Basis of the decision

The applicant proved contempt against the fourth and fifth respondents and failed to prove contempt against the rest of the respondents.

Reported by
Supported by the UNHCR