Kebonang rescinds Magosi, Macholo imprisonment order
Mpho Mokwape | Monday September 8, 2025 15:52
The Gaborone High Court Judge, Zein Kebonang, yesterday set aside the imprisonment order after finding out that the two directors were not personally served with the contempt application during its filing.
“After confirmation from both parties that the directors were not served, then the order for contempt of court cannot stand, which brings the matter to an end. The order I issued on 25 August is now set aside,” he said.
The two directors, who had faced the possibility of going to prison, had not yet been detained because they had applied for a stay of the imprisonment order soon after it was issued.
Their application paused the enforcement of the order, allowing the matter to be heard in court before any arrest could take place, where they argued that they cannot be held in contempt of court as there was no personal service delivered to them by the applicants, being Peloetshweu Masilomangwe and 405 others.
After reviewing the case, the judge ruled that the contempt application had not been properly served on Magosi and Macholo.
According to the law, individuals facing contempt of court must be served personally with court documents so they are fully aware of the charges and have a chance to respond in the case, the judge found that Magosi and Macholo were not individually served.
Justice Kebonang has asked the attorneys for the two parties to address him on the issue of service to the directors when the matter for the stay of the imprisonment order resumes.
Both attorneys for the DIS employees and for the two directors did not waste time in confirming that indeed there was no such bringing the matter to an end before it even started.
Because of this, he ruled that the order for their imprisonment could not stand and emphasised that the contempt proceedings must strictly follow legal procedures, especially when a person’s liberty is at stake.
The ruling means Magosi and Macholo will not be imprisoned under the current contempt application. However, the matter may still return to court if a new application is properly filed and served, which the attorney for the employees, Charles Batsalelwang, has confirmed.
On the stay application, Macholo argued that contempt proceedings by their very nature target natural persons responsible for implementing of complying with court orders and judgments rather than the institutional structures for which such persons are responsible.
According to her founding affidavit, that is the reason why the law requires that such persons be cited in name and not in their nominal capacities, as the respondents have done in this matter.
“The contempt application was heard on August 25, 2025, I am informed by counsel that, despite the above glaring defects, the judge proceeded to hand down his decision,' she said.
She explained that in his decision, the judge has not only adjudged that the Directors of DPSM and DIS are in contempt of his order of June 3, 2024, but has also directed that we be committed to imprisonment we were to remain until they have purged their contempt.
Macholo stated that the fact that the order does not name anyone, 'its effect is that Magosi and I, being the incumbent office bearers of the offices named therein as respondents, are targeted by the order.'
She noted that the order, therefore, when fully implemented, will have the effect of fully stripping her and Magosi of their liberty even though they were never given a chance to defend themselves as they were not personally cited therein nor served with the contempt application.
Macholo further said it is recognised that contempt does not only equate to the act of non-compliance with a court order, but encompasses the nature of such contempt, the extent, and the surrounding circumstances
“The circumstances in this case are that the disobedience was not willful or malicious, as the court order was impossible to comply with and was too vague and ambiguous. Our attorneys had met on several occasions with the respondents' counsel, Batsalelwang, in efforts to ensure compliance with the court's order,” she said.
She further said that the principles of natural justice require those who may be in contempt to be allowed to offer an explanation and be given the opportunity of purging their contempt, and or mitigating their behavior before any sanction is imposed.
Macholo emphasised that the above has not occurred as they were never personally served with the contempt application despite it having the effect to curtail their constitutional liberties, as their committal to prison will prejudice them, as not only were we not heard but we were stripped of their constitutional liberties.
“We will suffer prejudice if the stay is not granted, as clearly the position of the law of the country is in favour of the granting of this application and as such the respondents can suffer no prejudice through the due exercise of justice,” Macholo said.
In conclusion Macholo said for the reason that the contempt application was instituted against government offices as opposed to any specific public officer cited in name, the application was not served personally instead, it was only served on the Attorney General, who despite being the Principal Legal Advisor to the government is not responsible for implementing judgments against the government save for those issued against the office for which she is the Accounting Officer.