Botswana Gazette appeals ruling on WUC report
A local weekly publication The Botswana Gazette has launched an appeal to the Court of Appeal against the judgement of the High Court regarding the release of a Report by Water Utilities Corporation (WUC).
High court Judge Omphemetse Motumise had declined to direct WUC to release a report on the decline in water inflows at Gaborone Dam. The publication had approached the High Court to compel WUC to avail a Report to the newspaper which the corporation commissioned on the Gaborone Dam level. The publication had argued that it was illegal for the public entity to refuse to avail the report as per its request and indicated that the decision was reviewable.
Justice Motumise said the review application brought in terms of Order 61, as well as Order 70 of the High Court Rules in which the main question in issue is whether WUC is required under section 17 of the Water Utilities Act, of the Laws of Botswana to provide a copy of a report to the applicant (The Botswana Gazette) which it had commissioned in respect of reduced water inflows into Gaborone Dam.
In its grounds of appeal through its lawyers, Rantao Attorney, the newspaper argues that Justice Motumise, with respect, erred in law and/or in fact where he held that: section 17 of the Act confers a privilege, authority, or discretion on WUC to publish the results of any research or records as it may determine; the Appellant was wrong in contending that it is entitled to the report because section mandates it; the Appellant had not shown in what manner that decision contravened or exceeded the bounds of section 17 or was not authorised by the Act; and the Appellant had not shown any unreasonableness in the manner in which WUC exercised its discretion not to publish the report/ or how that discretion was abused by WUC.
It is argued that the judge erred in law and/or in fact where he failed to hold that: section 17 only confers a power which is reviewable; all persons are entitled to access information in terms of the common law and/or section 12 of the Constitution when properly requested for.
It argues that the judge, misdirected himself in fact and/or law in his characterisation of the Appellant's case as set out at paragraphs 14 to 18 of the judgement, to the extent that it contradicts the Appellant's pleadings filed of record.
“His Lordship, Motumise J, with respect, erred in law and/or fact in holding that: the Appellant relied on international instruments to assert its right to access to information; to the extent that he held at paragraph 48 that the alternative section 18 claim the constitutional claim was conjoined to the common law review application such that settlement of the review application rendered the constitutional claim nugatory on the basis of constitutional avoidance; and. international law and international agreements which Botswana has signed but not domesticated have no relevance for the interpretation of relevant laws and legal assessment in this matter,” the grounds of appeal filed with the court read.
Justice Motumise stated in his judgement that the decision under review is contained in a letter by WUC dated 17 June 2017, written in response to a demand of a copy of the report by the applicant on 31 May 2017.
He stated that the WUC Act empowers the Corporation to engage in research and or publish the results thereof. The results of the research are the property of the corporation. According to the judge, the corporation has not determined to release any such information or results of the search to your client or any third party.