Court slams ‘indefinite’ Kgosi property freeze
Spira Tlhankane | Monday August 31, 2026 06:00
The State has been accused of turning a court order meant to preserve the late Isaac Kgosi’s Kgosi’s property into a punishment, with the High Court describing the prolonged restraint of the ex- intelligence chief’s assets as an abuse of the law.
In a damning judgment delivered in Gaborone this week, Justice Mojapelo ordered the State to release property belonging to Kgosi, who died in August 2024. Mojapelo found out that authorities had failed to bring their investigations to finality despite having restrained his assets for almost seven years. The court also ordered the respondents to pay costs on an attorney-and-client scale. Justice Mojapelo said the investigations into Kgosi had started around 2011 or 2012, yet the State only obtained an ex parte order restraining his property in July 2019.
“What is immediately striking is that while the said investigations commenced on or about 2011 or 2012 the properties were only restrained, through an ex parte order, in July 2019,” the judge said. The court questioned why authorities had waited almost eight years before seeking the restraining order. “Why did he only seek to restrain the properties eight years or so after he had received the tip off and had already commenced the investigations?”
The judge said the State had failed to provide satisfactory answers. The judgment becomes particularly damaging for the authorities when Justice Mojapelo turns to what happened after the 2019 order was granted. According to the court, there was little evidence that the investigations had progressed after the properties were frozen.
Kgosi eventually approached the court in April 2023 seeking to have the order lifted, but the State still failed to demonstrate meaningful progress in its investigations. The judge noted that when he questioned the respondents’ counsel about the status of the investigations, counsel “confessed lack of knowledge”. The court was particularly scathing about the prolonged restraint. “What exists is an indefinite restraint on Mr Kgosi’s properties which the respondents have through their counsel conceded that it was inappropriate,” Justice Mojapelo said. By the time the application was heard, the properties had been restrained for almost seven years, while the investigations had been running for almost 15 years. “No matter how one looks at it this is an unreasonable period of time,” the judge ruled.
The court further noted that Kgosi had since died, meaning the State could no longer pursue criminal proceedings against him. But Justice Mojapelo said there was nothing on the record suggesting authorities had been close to concluding their investigations even before his death. In one of the strongest passages of the judgment, the judge said the State had effectively done nothing after obtaining the restraining order. “In fact, there is nothing that suggests that they had moved an inch since the order of July 2019. What is clear is that armed with a restraining order the Respondents closed their files, folded their arms and did absolutely nothing to bring their investigations to finality,” he said. The judge said the order had effectively been transformed into a punishment before Kgosi had ever been charged.
“They treated the restraining order on Mr Kgosi’s properties as a sentence on him even before they could charge with any wrongdoing.” According to Justice Mojapelo, that was never the intention of the Proceeds and Instruments of Crime Act (PICA). “This was not the intention of the legislature when it promulgated the Proceeds and Instruments of Crime Act.” The court also found the State’s conduct in obtaining the original ex parte order troubling. Justice Mojapelo stressed that parties seeking ex parte orders have a heightened duty to disclose important facts to the court, particularly because the opposing party is not present to challenge what is being placed before the judge. The court questioned whether the authorities had disclosed the long-running nature of their investigations when they approached the court in 2019.
“Was this disclosed to the court when the ex parte order was sought in July 2019?” Justice Mojapelo said he was not satisfied that the respondents had met the required threshold for obtaining the order. He further described the conduct surrounding the order and the subsequent inaction as amounting to harassment. “Their further conduct (of silence and inaction) after obtaining the order simply confirms that the order was obtained to persecute Mr Kgosi and not for the purpose they allege it was. I therefore find that this is an appropriate case where punitive costs should be awarded,” he said. The judgment ultimately discharged and set aside the July 19, 2019 order. The State was ordered to immediately, or within 30 days, restore the remaining restrained property to Kgosi’s widow, including a Land Cruiser, two portions of Farm Sentlhane No. 18-KO and cattle received from Richard Miles together with their offspring.
While the court declined to grant a blanket compensation order, it made clear that Kgosi’s estate could pursue any proven losses through separate proceedings. The judgment therefore brings to a dramatic close a legal battle over assets that had remained under restraint for years, while the corruption investigations cited by the State remained unresolved.