Kgosi, DIS impasse has destroyed many lives and careers – Kebonang
Mpho Mokwape | Monday January 15, 2024 06:08
The back and forth altercations between the parties and its effects have been talked about the most and recently Jystice Zein Kebonang of the Gaborone High Court weighed in on how the impasse has affected the running of many things in the country. Justice Kebonang said with no end to the disagreements, it has weighed down on the rule of law and the sanctity of many institutions. Perfectly describing the relationship between the parties in a recent ruling, Justice Kebonang said it was one of mutual dislike and mistrust between a spy agency and its former spymaster, which has negatively affected the smooth functioning of different agencies in the web of government.
“The dislike and mistrust between the two has negatively affected the smooth functioning in the web of government. Every facet of public and private life has felt the impasse,” he said. Justice Kebonang this week explained that the fallout permeated every layer of government and many careers and lives have been unfairly destroyed as a result.
He was worried that with no end in sight, it weighed on the rule of law and the sanctity of institutions and that if it is allowed to continue, it will take the country with it, if it has not already done so. Weighing on what is at stake between Kgosi and the State, Justice Kebonang said depending on where one sits, the State is determined to drag Kgosi and everyone associated with him through a criminal trial while on the other hand, Kgosi considers himself a victim of persecution and malicious prosecution. Kgosi has cried on many occasions saying there has been a pattern of harassment against him since he was fired with 18 months still left in his contract. There has been allegations levelled against him by the State, investigation by Directorate on Corruption and Economic Crime, charges against him including the one that involves the guns he wants returned to him.
The State on the other hand has maintained that Kgosi has cases to answer including the one involving the guns as they have alleged that they were registered and licensed illegally. Meanwhile, the judge’s words came when he was making a decision in a case which Kgosi in December 2020 filed an application seeking for the immediate return of his firearms and ammunition together with their corresponding permits.
According to facts of the case, on February 15, 2019, heavily armed members of the DIS and the Botswana Police Service raided Kgosi's home where firearms, ammunition and gun licenses belonging to him were seized as part of the raid. As per the court papers, the raid and seizure of firearms and licenses appeared to have been pursuant to a warrant of entry, search and seizure issued by the Extension 2 Principal Magistrate of which the warrant was obtained ex-parte by the DIS with the police service playing no role in it.
It is alleged that the warrant so obtained, specified the properties to be searched and/or seized and the properties specified in the warrant largely involved immovable properties connected to Silver Shadows (Pty) Ltd; Shathani July; Bash Carriers (Pty) Ltd; Otshegeditse Basiami; John Little; Thatayaone Seduke; International Aviation Solutions (Pty) Ltd; Kalahari Flying Club (Pty) Ltd, Defence Concepts (Pty) Ltd; Welheminah Maswabi; Tshepo Sebina; Bango Trading (Pty) Ltd; Asphalt Botswana and Mofat James. In relation to the Respondent, the properties identified in the warrant were Portion 83 (portion of 78) of Sentlhane Farm, Mokolodi, Plot 61299 situated at Phakalane, Farm (tshimo) situated at Maboane and Plot 17658 situated at Gaborone West Phase 1, Gaborone. According to evidence on court papers the firearms, ammunition and their permits seized by the State from Kgosi's house were reportedly not specified in the warrant issued. “As fate or misfortune would have it, Kgosi and others not before this court, have subsequently been charged in respect of the acquisition, registration and licensing of his firearms before the Broadhurst Regional Magistrate Court”, reads the papers.
Attorney General, BPS and DIS' case
The State’s case, which is found in their answering affidavit filed on May 20, 2021 as a response to Kgosi’ application, asserts that they are entitled to seize the firearms as part of their investigative work. More so the Sate has maintained that licenses were seized pursuant to a lawfully issued warrant by the Extension 2 Magistrate's Court though the judge has pointed out that that argument ,however, cannot be true because the seized firearms and ammunition were not part of the paraphernalia contained in the warrant issued by the Extension 2 Magistrate's Court. Having now instituted criminal proceedings against the respondent and others, the State has argued that the Kgosi application in terms of which he is seeking the return of his licensed firearms has been rendered moot and/or academic by reason of the criminal prosecution. “To this end, they argue that the Respondent's suit including the reliefs sought by him must be dismissed with costs on a punitive scale, as they are no longer legally untenable”, reads the papers.
Kgosi’s case
According to court papers just like State, Kgosi has vowed to be a law abiding citizen. In both his founding and replying affidavits, he contends that he is the lawful owner of the firearms and ammunitions seized by state. He has on several occasions denied that these were either unlawfully imported, acquired, licensed or registered and argued that they were lawfully registered and licensed by the Botswana Police Service and that there was no legal basis for their seizure. When responding to the State, Kgosi said he is perplexed by that assertion to deny him his guns and stated that the mere institution of criminal proceedings against him is not enough to affect his ownership or possession of the firearms in the absence of a conviction. He also stated that the licenses in respect of his firearms have not been revoked by either the police service or court to justify their confiscation and also maintains that he is entitled, as a lawful owner, to a return of the firearms and their licenses and that his claim to them cannot be regarded as moot.