State fails to stop Kgosi seized guns case
Mpho Mokwape | Monday May 2, 2022 06:00
The State reportedly filed an application on Tuesday, a day before the scheduled arguments for the matter seeking a stay of proceedings in a case where Kgosi wants the return of his firearms and ammunition that were seized from his house by the State sometime back in 2019. The application for stay of prosecution did not see the light of day as it was established by court that it was not properly brought before court, as it did not follow the court rules. The matter proceeded to the main application as Kgosi’s attorney Diba Diba sought for the guns to be returned to his client saying the State had failed to respond to the filed papers on time.
He explained that the State took five months to file its papers and that when they did, it was without leave of the court. Diba pointed out that the State only filed for the variation on their application way out of time when they realised that the case was coming for arguments. On the guns being the subject of criminal case before the Magistrate, Diba argued that they had filed their case way before the criminal matter came into play. “This matter has been before court way before the criminal case was filed and also it is before a higher court and cannot be stayed for a matter before a lower court,” he said. State attorney Charles Gulubane said there was already a criminal case filed against Kgosi at the Magistrate Court for the same guns that he was demanding. He explained that the guns were a subject of a criminal matter therefore, they could not be returned before the conclusion of the matter. “The guns are part of an ongoing investigation and a pending criminal case before court. We pray that the court will consider that in its decision,” he pleaded.
Gulubane said they could not file on time, as they had wanted for the applicant to make variation to his papers first, as shown by the application they made prior to the scheduled case. He argued that it was still within reasonable time for them to file their papers.
The case has been pending before court since December 2020, following an application by Kgosi to the High Court demanding his guns back. According to the case, his guns were seized on February 15, 2019 following a raid at his residence in Phakalane. He said on that fateful day he had a rude awakening when officers from the Botswana Police Service and the DIS served him with a warrant of entry then searched and seized his property without explaining to him why and what charges he was facing. Kgosi explained that during the raid the officers took his firearms and ammunition in different models that he legally owned. In his filed papers before court, Kgosi said there has been a pattern of harassment against him, which explained the seizure of his firearms and ammunition. “The State has not at any point attempted to provide the reasonable basis for holding onto my property, they have failed to indicate what offence(s) they are investigating or why it is necessary to hold onto the property for the purposes of any investigation, if any.” he said.
The former DIS boss also said he has never been interviewed regarding the purported probe. He added it was unreasonable for the State to be holding onto his property on the basis of mere allegations. Kgosi further said when he asked why his property was being seized when he had permits to hold firearms, the officers told him that they wanted to know how he acquired them and how they were licensed. “The officers seized the firearms and ammunition despite me providing them with necessary permits or licences. They also took away the permits with them,” he said. “It is for this reason that I am unable to annex copies of the permits to the papers in proof of my legal right to hold firearms,” said Kgosi.
He argued that it was now a year and eight months since the police took the firearms and ammunition while they entirely belong to him legally and that there was no legal or reasonable basis for the seizure of the firearms. Kgosi asserted that they were not unlawfully acquired and that they have not been used in any unlawful activity to warrant seizure. “Even if there were investigations there has been no attempt whatsoever by the State to show how the firearms and ammunition are connected with whatever offence is being investigated. It is on this basis of that failure to disclose the nature of the investigation that I want my property back,” Kgosi said.
He explained that the whole thing fits in with a pattern of harassment the respondents have and are subjecting him to. Kgosi noted it was not difficult to fathom taking into account his relationship with the State and the harassment he has been receiving. The ex-spy wants his firearms and ammunition back and for the State to pay the costs of the suit.
However, the State is defending its decision to seize the guns on the grounds that there is reasonable justification, as it believes the guns were obtained unlawfully. The State in its earlier opposition to Kgosi’s application said there was sufficient ground to suggest that proper procedure was not followed when the guns were obtained therefore, the need to confiscate them for further investigations. “The firearms and ammunition are part of ongoing investigations and they were lawfully seized through a search warrant,” argued the State.
According to the State, the firearms and ammunition are in custody for proper investigations as they also form part of the criminal case before the Magistrate Court. The ruling on the matter is due on or before June 23, 2022.