CoA judges in a shock
Mpho Mokwape | Monday October 24, 2022 06:00
Khama had been fighting for his property to be released to him after his farm, Kenmoir, was searched by the DIS and his property seized in 2021 as the spy unit went on a raid looking for guns from former President Ian Khama’s properties.
His (Anthony's case) was dismissed by Justice Gabanagae as he ruled that the application was not urgent. The bench of Justices Tebogo Tau, Lakhvinder Singh Walia and Isaac Lesetedi when hearing Khama’s appeal said they were surprised that the application was dismissed on urgency but at the same time the judge went ahead to deal with the merits of the case when he should have not done that.
“The court a quo should have dealt only with the issue of urgency and not the merits if he intended to deliver a ruling on urgency only but the ruling is based on both urgency and merits of the case. In fact in proceeding to deal with the merits, Gabanagae determined the whole application on urgency, contrary to his finding that the application was not urgent which was wrong,” said the judges.
They explained that after holding that the application was not urgent, Justice Gabanagae proceeded to deal with the merits of the application and dismissed it holding that the entire relief sought by Khama was incompetent.
The bench said what was most confusing was that Justice Gabanagae held that Khama’s application was incompetent insofar as the search warrant was not set aside, while at the same time he held that Khama could not ask for the setting aside of the search warrant because he was not a party to the search warrant application effectively leaving him with no remedy.
“The ruling is even confused in terms of that it is not clear whether it’s a ruling or a final judgement and on top of that it has left the applicant without any legal remedy justifiable by himself,” said the judges.
The judges further pointed out that the effect of the High Court ruling was that while it denied Khama the relief he sought, it also meant that he could not do anything about the fact that the search warrant had been used against him while it was not issued in his names.
Moreover, while at the same time he was not one of the persons being investigated by DIS, meaning that unless and until persons before court decided to, and actually succeeded in setting aside that search warrant he had no remedy available to him despite the his property being held by that search warrant.
Earlier on during arguments, Khama’s attorney Tebogo Tladi had argued that he had no idea why his client’s farm was searched when the DIS knew the search warrant did not mention him as one of the persons who were being investigated or a person whose property was sought to be seized on the strength of the search warrant. He argued that the search warrant sought cited Dr Ian Khama, Isaac Kgosi and Sehunelo Khunou and sought to seize firearms and ammunition registered in their names believed to be illegally possessed.
“The search warrant provided no authority for seizure of my client’s personal property reason being that he was not named in the search warrant as the person being investigated,” he said.
Tladi stated that there were 18 firearms listed which were alleged to have been concealed at his client’s farm but none of his personal firearms or any other personal property seized was included in the search warrant amongst the items sought by the DIS.
The attorney wants the ruling reversed and his client given his property as he was not being investigated and that the DIS has not shown any sign that it is doing anything let alone doing investigations. “Since they took the property they have been quiet and have not shown any sign that they are doing something at least even ease the mind of my client.
They are just holding the items without any legal reason,” he said. Meanwhile, in its defence the DIS said the search warrant was legal and allowed for the search and seizure of Khama’s property. Its attorney Thabiso Olatotse though also admitting that the ruling was confusing still maintained that it was not appealable. “The court weighed the public interest and correctly issued the warrant. It is thus humbly submitted that the search warrant was legally executable against the personal property of Khama, which was found on Kenmoir Farm,” he said.
He explained that though the ruling was not clear, it made a provision for the seizure of the property and that it would be returned to the owner. He further submitted that the appellant was not entitled to the return of his personal property that was seized pending the conclusion of the investigations in question. Such seizure was at all material times lawful. “In any case, if after the investigations, the property does not provide evidence of the commission of any crime, it will accordingly be returnable to him,” he said. Judgment has been set for November 4, 2022.