Khama accuses DIS of defying court order
Mpho Mokwape - Katlego Isaacs | Monday January 24, 2022 06:00
Khama, who has not been able to gain access to his State House despite being given a spoliation order, has approached the Court of Appeal (CoA) seeking an urgent hearing for an appeal filed by the DIS.
The spy unit has a pending appeal against the order that was issued to give Khama access to his house. Justice Godfrey Radijeng of the Gaborone High Court had granted the former state man access to his house last year December after he challenged the State’s illegal sealing of his house.
However, following the judgement, the State rendered the order inactive by filing an appeal against it and also a stay of execution was denied but they have since filed it at the CoA. Now, in a fresh bid to have access to his house as granted by the court, Khama through his attorney Unoda Mack on Wednesday this week approached the CoA seeking the State’s appeal to be heard on expedited basis on grounds that he was given a spoliation order to restore access to his State House.
“This is an urgent application for an expedited hearing of the appeal. Alternatively, if I do not succeed in obtaining a leave for an expedited appeal, then I seek an order for the implementation of, and compliance with the spoliation order pending the stay application and the appeal,” he said. In his founding affidavit, Khama said the unlawful dispossession of his residence and movables remained in place and was continuing as the State has ignored the spoliation order.
He explained that the State seems to be disobeying the order to access to the house on the basis that the State House 4 was considered a crime scene and sealed off as a measure to preserve the purported evidence and that movement in and outside the premises would make the investigators’ job difficult.
“This is not a sufficient reason to engage in self help as the State has done, and also the State said that they have been advised by their lawyers that compliance with the spoliation order would be inconsistent with their decision to appeal and will render the appeal moot. As informed by my attorneys, court orders are non-negotiable and that they must be complied with even where such orders may be wrongly issued,” he argued. Khama said he moved the application because the State was in no hurry to have their stay application moved on urgency or to have an expedited hearing of appeal, or even so have appropriate directions that could meet the justice of the cause issued. He explained that it seemed so because while they filed the stay application in the High Court on urgency, they have now filed a stay application before the CoA in the normal course.
“It is precisely because the unlawful dispossession of my residence of State House 4 and other movable properties, save for the dogs, is continuing and I am compelled to approach court for an expedited hearing of the appeal to determine once and for all the controversy between the parties and so vindicate my constitutional rights protected by the spoliation order, which are being violated with impunity by the State,” he said.
Khama said the court needed to intervene since the spoliation order has in effect been rendered useless and no value by the state. Furthermore, Khama emphasised that by reason that a stay application is pending, he was advised that there was no way to enforce the order because it was an order which may only be enforced by contempt proceedings. “The High Court has already found that a contempt application while a stay application is pending will be seen as pre-empting the decision on the stay application. The state of affairs renders the spoliation order of no practical effect to me, removes the immediate effectiveness of the order,” he noted. Meanwhile, in an opposing affidavit by DIS director-general Peter Magosi, he denied that his unit was defying the court order. “We applied for a stay of execution.
I must say that even when we were placed in a difficult position of being faced with an order with no reasons, still came back to the same court and sought a stay of the order,” he said. Magosi explained that it was incorrect that Khama has illicitly been dispossessed, saying the sealing of the house and the sedan were precautionary measures undertaken before a search was conducted. He said it was clear that there was no dispossession as alleged because they have returned his dogs as their removal as much as the sealing was never intended to be a permanent act.
The spy chief further stated that sealing a crime scene was not a self help and that unless the sealing has been held to be without factual or legal basis, the remedy of spoliation was not available. “The purpose is to preserve evidence and avoid tempering with it in any form. The moment the crime scene is tempered with that will be the end of investigations.
There has been no legal challenge to the sealing of State House 4 and the vehicle,” he said. Magosi noted that the application for a stay of execution nor the appeal could have been brought on urgency as they both would not meet the requirements for expedited hearing. Justice Leatile Dambe of CoA will give ruling on the matter on a date to be communicated.