State digs in, vows to fight Mzwinila ruling on appeal
Spira Tlhankane | Wednesday February 4, 2026 09:18
In a sharply worded press statement dated January 30, 2026, the Attorney General’s (AG) Chambers confirmed that the State has formally noted an appeal, challenging Judge Barnabas Nyamadzabo’s ruling that declared passport flagging unlawful, interdicted warrantless searches and ordered the return of seized property.
“The AG has since carefully considered the reasoned ruling delivered by the Honourable Court,” the statement reads before making it clear that the State is not backing down.
According to the statement from government attorney Osego Garebamono, the ruling contains “a number of findings and conclusions with which the AG and the respondent parties respectfully disagree”.
At the centre of the appeal is the State’s assertion that the High Court crossed a critical legal line. “In particular, the order granted by the Honourable Judge, although sought by the applicants as interim relief, is final in both its content and effect,” the Garebamono states.
The State argues that the ruling effectively grants the applicants substantive relief that was not sought in the application. This is a direct challenge to a judgment that had slammed law enforcement for acting “unlawfully and arbitrarily”, and warned that investigative agencies are not free to act outside the law.
The State confirmed that the appeal has already been lodged.
“In light of the above, the AG has, on behalf of the respondents, noted an appeal setting out the grounds upon which the ruling is challenged,” the statement revealed.
The AG further stated that the respondents will seek to ensure that the matter is determined as expeditiously as possible, in the interests of legal certainty and the proper administration of justice.
The move signals that, despite the High Court’s scathing findings, including orders lifting passport flagging and restraining further warrantless searches, the State is not retreating from its confrontation with Mzwinila.
Instead, the appeal sets the stage for a legal showdown that could redefine the limits of investigative power, interim relief, and constitutional protections in Botswana. For Mzwinila, who only days ago secured what many viewed as a landmark rebuke of the DCEC and Immigration authorities, the government’s message is unmistakable, and the fight is not over.
In the ruling challenged by the State, Judge President Nyamadzabo found that the DCEC overstepped its mandate and ordered the lifting of passport flagging and return of seized property.
The High Court ruled that the DCEC and other authorities acted unlawfully in their pursuit of Mzwinila and his family. In the ruling delivered on January 28, 2026, Judge Nyamadzabo found that the State’s conduct amounted to an abuse of investigative power, granting sweeping relief to Mzwinila, his wife, Bridget Mzwinila, and their company, Delicious Dairy (Pty) Ltd.
At the heart of the judgment was a finding that the State failed to comply with court-ordered timelines, a failure that proved fatal to its defence. “It is common cause that the Respondents’ Answering Affidavit, Supporting and Confirmatory Affidavits were filed at 6:20 pm on December 10, 2025, instead of the agreed 1 pm,” the court noted.
That delay triggered the application of Order 31 of the High Court Rules, with the judge ruling that the late-filed papers were legally worthless.
“The effect of all this is that the Respondents have been barred and also cannot introduce any evidence. That being the case, the averments in the Applicants’ Founding Affidavit stand to be taken as uncontroverted,” Nyamadzabo ruled.
The applicants complained of “warrantless raids; seizure of business critical equipment; detention and intimidation of staff; interference with lawful payments via an unlawful PICA directive; passport flagging without statutory authority and a pattern of conduct designed not to investigate but to economically suffocate the applicants”.
The court reminded investigators of the constitutional limits of their power. “Whilst the DCEC is free to investigate, it is not, however, free to act outside the law,” Nyamadzabo declared. The judge further emphasised that once a warrant is executed, authorities cannot simply return and search again at will.
“Once the law enforcement agencies have executed a particular search warrant, they cannot go back and make additional searches without a new search warrant,” the court held. The court also took issue with the flagging of the applicants’ passports, finding no lawful basis for the restriction on their freedom of movement. “Even with the first and second applicants’ own passport flaggings because of the absence of an Answering Affidavit, there appears to be no cogent reason why such flaggings exist,” the ruling stated.
The judge highlighted that the State itself had already conceded wrongdoing by agreeing, in a draft consent order, to lift the flagging of the applicants’ minor child’s passport and cease monitoring of their movement.
The judgment paints a grim picture of the impact on Delicious Dairy, the third applicant. “There is an uncontroverted averment that the third applicant is collapsing,” the court found.
“If its equipment has been seized or payments to it have been unlawfully intercepted, a collapse of the third applicant would become obvious. It appears unlikely that any amount of compensation can repair this harm.”
On the balance of convenience, the court concluded that denying relief would expose the applicants to complete ruin. The applicants are granted an interdict against any further unlawful interference with payments to the third applicant.