DIS, Police default in P4m suit for arrest of intelligence agents
Mpho Mokwape | Sunday November 9, 2025 12:51
The intelligence officers, Pulane Kgoadi and Paul Setlhabi, are seeking a combined total of P4.45 million in damages, which are yet to be assessed by the Registrar.
Gaborone High Court judge, Justice Matlhogonolo Phuthego, said the two officers were unlawfully arrested, detained, and denied their rights by officers acting under the DIS and the police.
“I hold that the arrests and detentions of the officers, as well as their searches and denials to have access to their families and legal counsel, were unlawful and wrongful. The defendants ought to have filed their plea within 14 court days after being served with the plaintiffs' declaration. They failed to do so. That failure should result in the plaintiffs being granted a default judgment,” said Justice Phuthego.
In a judgment delivered on Tuesday, Justice Phuthego found that both agencies had violated the plaintiffs’ fundamental rights under the Constitution of Botswana, including their rights to liberty, privacy, and legal representation.
Justice Phuthego stated that “the arrests and detentions of the plaintiffs, as well as their searches and denials to have access to their families and legal counsel, were unlawful and wrongful.”
The decision marked a significant outcome in a civil case that began last year, when the two officers filed a lawsuit against the Attorney-General, the DIS, and the BPS.
According to the court record, the officers filed their civil action on August 12, 2024, alleging that they had been detained without charge, that no warrant had ever been presented to them, and that they were denied contact with both their lawyers and their family members during the period of their detention.
The court papers further stated that the events leading to the arrests arose from confidential investigations undertaken by the plaintiffs while acting under the direct instruction of then-President Mokgweetsi Masisi.
The investigations reportedly concerned matters involving the conduct of the Director-General (DG) of the DIS, Peter Magosi. The officers contended that after the DG became aware of the findings of those investigations, he initiated actions intended to intimidate and silence them.
“Those actions included suspensions from duty, arrests, and unlawful searches of our homes and persons,” they alleged.
In their filed declaration, the plaintiffs alleged that DG’s conduct was motivated by fear that their investigations would expose misconduct on his part.
The declaration also stated that information about their confidential assignments had been disclosed to DG by the Permanent Secretary to the President, Emma Peloetletse. According to the plaintiffs, Peloetletse had been provided with both documentary and audio evidence concerning the investigations.
In the action before the court, Kgoadi sought damages amounting to P2.2 million, while Setlhabi claimed P2.2 million. The damages covered claims for unlawful arrest, unlawful detention, invasion of privacy, and denial of access to legal counsel and family members.
The defendants, the Attorney-General, DIS, and BPS initially entered an appearance to defend the case. However, according to the court record, they did not take the necessary steps to file their defence within the required time frame.
“Over several months, the state’s legal representatives failed to file their plea, missed multiple deadlines, and did not appear at scheduled hearings,” reads the judgment.
Justice Phuthego noted that the defendants were granted additional time to respond but still failed to do so.
He observed that despite the opportunity to defend the matter, the defendants failed to grab the opportunity with both hands, and as a result of the failure, the judge struck out the defendants’ objections and proceeded to consider the plaintiffs’ claims as uncontested.
The judge noted that the government had earlier filed a notice seeking to strike out certain paragraphs of the plaintiffs’ declaration because they were “scandalous, vexatious, and irrelevant.” The plaintiffs opposed the application, arguing that the paragraphs in question were central to establishing their case and demonstrating the alleged bad faith and abuse of power by the intelligence service.
When the matter eventually came before the court, the defendants’ legal representatives reportedly failed to appear, and the judge therefore ruled that the objections were not prosecuted and should be struck out.
Justice Phuthego cited Order 25 of the High Court Rules, which requires a defendant to file a plea within fourteen court days after being served with the plaintiff’s declaration.
He held that the defendants’ failure to do so meant that the plaintiffs were entitled to a default judgment.
“The defendants ought to have filed their plea within fourteen court days after being served with the plaintiffs’ declaration. They failed to do so. That failure should result in the plaintiffs being granted a default judgment,” the judge stated.
Having determined that the defendants had not presented a defence, the court accepted the plaintiffs’ account as uncontested, and Justice Phuthego found that the arrests, detentions, and searches carried out against the plaintiffs were done without lawful authority and in bad faith.
The judgment also stated that the officers who conducted the acts were operating within the scope of their employment, and therefore the Government of Botswana was vicariously liable for their conduct.
The judge further declared that the plaintiffs had been denied their rights under the Constitution, specifically the right to personal liberty, the right to privacy, and the right to consult legal representatives.
“The actions of the intelligence and police officers violated those rights and were contrary to both the Constitution and established legal procedure,” said Phuthego.
In his written order, Justice Phuthego directed that the matter be referred to the Registrar of the High Court for the assessment of damages in accordance with Order 36 Rule 1 of the Rules of the High Court.
This means that an additional hearing will be held to determine the exact amount of compensation to be awarded to each of the two plaintiffs.
The defendants were also ordered to pay the costs of the proceedings, and the decision stands as the official conclusion of the liability phase of the case, leaving the determination of damages as the final step in the legal process.