It’s your own doing - court tells DIS
Mpho Mokwape | Monday December 20, 2021 06:00
DIS, who were complaining to the court that the inaccessibility of the premises would compromise their investigations, were denied an expedited appeal for the search warrant. They wanted to appeal on urgency after they were denied the search warrant by Justice Ranier Busang of Lobatse High Court.
Justice Monametsi Gaongalelwe when explaining his denial to grant the spy unit said they could not complain of inconvenience because it was the unit’s own team that sealed the premises and that it is their own doing that they cannot access it. “What renders these submissions untenable is that it is spy unit’s own team that sealed the premises rendering it inaccessible.
The situation is therefore, the creature of the applicant and no one else,” he said. The judge explained that there were no extra ordinary circumstances to grant the appeal on an expedited basis more so that even Khama who they claimed would be inconvenienced by the seal was opposing the application. He said the argument by the DIS that if the State House 4 remained sealed, the situation would be prejudicial to Khama himself since it was his official residence could not hold water. “As regards to Khama he cannot be entitled to complain of any inconvenience caused by the sealing of the premises in the interim since that would be in sharp contrast to the instructions he has given to his attorneys to oppose the application for expedited appeal. To do so would be blowing hot and cold,” said the judge. Justice Gaongalelwe said if indeed the DIS director-general and his team had treated the matter as deserving of urgency on account of threat to national security, one would have expected them to have either honoured the agreement to go to be handed the firearms.
He pointed out that the exercise of going to collect the firearms from Khama as it was initially communicated between the parties should have been done for what was worth or if the visit turned out to be an exercise in futility or if were dissatisfied with the quantity handed to them to have proceeded to file the second application of search warrant immediately. ‘It has turned out that the application was only filed at the High Court on November 19, 2021 which was some 25 days later.
The requirement to act promptly is constant with cardinal sound maxim of the common law which is part of our law,” he said. The judge also said the DIS had admitted in its papers that Khama had actually told the team that there were firearms in the premises but they never came back in an endeavour to collect such in terms of the mutual agreement but instead the spy unit kept postponing to collect such and that they conveniently avoided mentioning the mutual agreement as part of material disclosure. “Despite such consensual arrangement the visit to State House 4 was postponed few times and those postponements were at the instance of the DIS.
It is noteworthy that the replying affidavit does not refute and one thing which is clear is that the unit’s team reneged from the agreement and are not giving any explanation for such,” he said. He said thereafter the DIS failed to honour the agreement, it became common cause that Khama unceremoniously left the country and that subsequently led the DIS team to seal all entrances to State House 4 making it inaccessible. On claim by DIS that Khama may temper with evidence if the appeal is delayed, the judge said he has been aware of the intention to conduct a search in his premises since October 2021. Meanwhile, the DIS, who wanted to be given access to Khama’s property through a search warrant, will have to go through the normal court process meaning Khama’s house would remain sealed in the meantime.
They approached the CoA seeking leave to appeal on an urgent basis on grounds that delay in hearing the appeal would ground the investigations to a halt since State House 4 would remain sealed probably with the requisite firearms being inside there and that investigations would not have access. According to the spy unit, they believe the former president smuggled the weapons from the DIS armoury into the safe in his house making it difficult for them to collect evidence for investigations.
The DIS explained that they searched the armoury they found nothing incriminating inside despite knowing that the weapons were initially there. Khama’s lawyers opposed the move saying the unit wanted a second bite at the cherry. They said DIS was operating on dishonesty as they have failed to disclose crucial information to the court. Thw State was led by prosecutor Sifelani Thapelo and Khama was represented by attorney Unoda Mack and Tebogo Tladi.