State insists on Kgosi guns dispossession

Mpho Mokwape | Monday July 10, 2023 06:00

The state, which lost its case against Kgosi last year and was given a three-day ultimatum by the former judge president Abednigo Tafa to return the guns, now believes it stands a chance to keep the guns away from Kgosi arguing they are part of a pending criminal case at the Magistrate’s Court.

In its latest attempt, the pair will face off again in court as the state is out to prove to the Court of Appeal bench that the guns cannot be returned to the owner as yet without determining their legality.

According to the appeal papers, the state argues that the court erred as it failed to establish that the guns' licences were not obtained accordingly and that they are part of a criminal case yet to be heard.

“The guns form part of a case before the Magistrate’s Court and they are still part of ongoing investigations. The court erred in not considering these facts by ordering that they be returned,” expressed the State.

The State also pointed out that the court erred in not staying the proceedings when it came to light that the guns were part of a criminal case and form part of the evidence.

Kgosi is opposing the appeal arguing that the court had established that the guns were lawfully registered in his name and that he had provided enough evidence and documentation to sustain that. “I have all the requisite licences to possess the firearms and it has been clear that I am the lawful owner,” Kgosi said.

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. He said the State has not at any point attempted to provide a reasonable basis for holding onto his property. “They have failed to indicate what offence they are investigating or why it is necessary to hold onto the property for the purposes of any investigation, if any,” he said.

The State’s appeal comes after then-judge president Tafa had ordered that Kgosi’s guns be returned to him because he had demonstrated through undisputed evidence that the firearms in question were lawfully registered in his name. “The arms are to be released to the applicant within three days from the date of this order. The evidence presented to the court clearly showed they were lawfully registered in his name. Such registration in my view showed evidence of ownership,” Justice Tafa said at the time.

He also explained that in the absence of evidence that the State failed to produce, the court could not second-guess the ex-spy chief because the evidence was that the listed firearms were indeed collected from his custody. The former judge president said Kgosi had the requisite licences to possess the firearms and that it was a clear case of lawful possession and or ownership.

“There is no evidence on the record that the dispossession was justified. It is the duty of the court to ensure that citizens are not dispossessed of what appears, on the face of it, to be their property by anybody including agents of the State,” he read. He emphasised that there was no legal basis or reasonable ground for the continued detention of the firearms which have been presented by the State.

The now-retired judge further pointed out that there was no evidence on record that there are investigations against Kgosi in connection with the firearms except for unverified social and print media reports.

He said the court could not in the absence of sworn evidence in the form of an affidavit, take into account such baseless reports. However, Justice Tafa had acknowledged that the State did file what was purported to be an application for a stay of execution of the proceedings saying the application in his view was premature as a judgement was still to be delivered.

The State reportedly filed an application before the judgement seeking a stay of proceedings but the application for stay did not see the light of day as Justice Tafa established it was not properly brought before the court and did not follow court rules.

According to the case, Kgosi’s 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 Directorate of Intelligence and Security (DIS) served him with a warrant of entry and 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.

The guns that were supposed to be returned are as follows:

* 300 rifle serial numbers 710-9550 * 12 gauge double barrel shotgun serial number 0505544 * 9mm Jericho pistol with 2 magazines 14.A * 30/06-rifle serial number C700521Bruno * 308-rifle number 3433854 * O/U shotgun 12g serial number 09137 NP153 * 9mm pistol serial number 857992 * Combination 12/76 and 3006 serial number 4/8666 4 4R 04838 * 50mm pistol serial number 41201234 * 12 gauge shotgun serial number 63529 PR 152

The case will be heard on July 21.