Collins Newman and Co loses first round against newspaper

Lobatse High Court Judge, Michael Leburu has said that Collins Newman and Company (CNC) law firm together with its senior partners took long to approach the court to interdict publication of alleged defamatory articles.

Leburu said this when dismissing with costs an urgent application by CNC, its senior partners, Parks Tafa and Rizwan Desai asking the court to interdict Business Weekly and Review Newspaper from further publishing articles deemed defamatory or contacting CNC clients. This is one of the legal battles between the law firm and the newspaper as the former has indicated intentions to sue the publication for defamation.

This comes after the newspaper reported extensively on a judgement by Gaborone High Court Dr Zein Kebonang in a case involving CNC, Bank of Botswana and EBC Guernsey where an attorney with CNC was found to have forged court document. The allegations of forgery against the law firm emerged after the BoB approached the High Court in a bid to stop EBC Guernsey from attaching its property to reclaim a P27 million debt arising from the winding down of the defunct Kingdom Bank.

Attorney Machinya of CNC acting on behalf of BoB was said to have forged a High Court stamp in order to submit its opposing papers timeously before the set deadline to stop EBC Guernsey lawyers Minchin and Kelly from attaching BoB’s property. In his ruling Leburu stated that the applicants waited for an unreasonable length of time in order to vindicate their rights and prevent the occurrence of any harm, if any.

He said an applicant who lies supine in the face of a ticking and an impending prejudice and then approaches court after a prolonged break is unlikely to succeed on urgency. “The applicants did not move with the necessary dispatch to vindicate their right to good name and reputation. The same logic and conclusion applies to the delay on the part of the applicants to stop the sending of questionnaires to CNC’s clients”, he said.

The judge explained that to determine urgency there should be full and honest disclosure by the applicant on all factual issues which have a bearing on the issues, including even facts averse to the applicant which the applicant is aware of. He stated that such disclosure would be necessary particularly where short notice is given to the other party.

Justice Leburu said the applicant has to show there shall be irreparable harm or substantial prejudice if he is denied relief that it is seeking on an urgent basis. He stated that in determining urgency, each case will definitely depend upon its unique circumstances, always bearing in mind that there are varying degrees of urgency. Leburu said among others proceedings on urgency disrupts the court’s schedule, hence such application must be sufficiently merited.