DIS had no business taking over DCEC offices—CoA

Mpho Mokwape | Tuesday July 2, 2024 12:16

On Friday, the court stated it was clear that the intelligence agency, without lawful authority, sealed the DCEC offices and that of then director-general, Tymon Katlholo. The Attorney General (AG) representing the DIS had appeared before CoA appealing a High Court judgment that ruled in favour of the former DG of DCEC. Katlholo had taken the DIS to court in protest over the raid, which occurred in early 2022. The court had previously granted Katlholo, on behalf of DCEC, an interdict against DIS, which had raided and sealed his office, allegedly in pursuit of dockets related to some officials of the spy outfit.

At that time, the DCEC was reportedly investigating some DIS officials, including Director-General Peter Magosi, leading to the raid while Katlholo was on official duty outside the country. In the judgment, Justice Lesetedi said from the facts it was clear that the DIS then took control of those premises and designated them a crime scene with the intent to access at least one of the files and documents unlawfully. 'These purposes were legally entirely unsanctioned. The DIS had no legal entitlement to conduct itself in this way, pursuant to an investigation on which it was not empowered,' he said. Justice Lesetedi explained that DIS have no right to interfere with the business of DCEC legally because they are two separate government entities each independently guided by its own Act.

He said DIS conduct was unlawful as it is empowered and has no supervisory powers over other entities of government, be it law enforcement or any other. 'The DIS was acting as a law unto itself in breach of the very foundational tenets on which this republic was established, respect of the rule of law. It undermined the laws passed by the people's representatives, Parliament,' Lesetedi said. 'To try to clothe its acts with a veneer of legality, the DIS sought to rely on the cover that it was conducting investigations concerning the national security of Botswana pursuant to its mandate in terms of the Intelligence and Security Services Act.' The judge further stated that should the High Court have believed that, having gained access to the files in the sealed offices, the DIS officers wouldn't have closed their eyes to investigating files concerning their own was just far-fetched.

'That is so far-fetched as to be unworthy of credence in motion proceedings. And should the High Court have accepted that the DIS would have sealed Katlholo's offices in his absence solely to secure a file in a matter in which they had already received cooperation (however grudgingly), from the respondent's office? That too, requires an inordinate stretch of the imagination and credulity,' he explained. Lesetedi stated that based on common cause facts, as well as where no genuine dispute of fact existed, the High Court was competently right to grant the remedies Katlholo had sought. The dispute leading to the proceedings before the High Court were precipitated by events that took place around May 3, 2022, when the DCEC DG was at the time out of the country on official business. He was informed that the offices of the DCEC had been barricaded and that his office as well as that of his staff officer, who was apparently with him on the official business, were sealed off by officers of the DIS.

They were sealed as a 'crime scene' – ostensibly to secure certain files which the DIS claimed to be necessary for their investigation in what they termed 'investigations concerning the national security of Botswana'. The DIS allegedly purported that such investigation was being carried out in terms of the Intelligence and Security Services Act. The acts by the DIS were alleged to have been done without warning to Katlholo let alone his consent. The appeal was heard by the bench of justices Lesetedi, Baaitse Nkabinde, and Edwin Cameron. Dutch Leburu represented Katlholo while the AG was represented by Thabiso Olatotse.