State represents Magosi & Co against Kgosi
Mpho Mokwape | Friday May 21, 2021 17:51
Appearing yesterday before Gaborone High Court Judge, Zein Kebonang, the State moved the application after the defendants were cited in their individual capacities in Kgosi’s P50 million lawsuit against the government despite having carried their duties officially.
Initially, the defendants, DIS chief Peter Magosi, Koketso Mbulawa and Mbako Bonang both from Botswana Police Service and Palapye Magistrate, Rebecca Motsamai were cited to have allegedly been part of that fateful day of Kgosi’s airport arrest in their own individual capacities. The application follows the State having previously indicated in its papers that the citation of the individuals in the court proceedings in their personal capacities was vindictive and abuse of the court process. “The proceedings against the four defendants in their personal capacities is vindictive and abuse of court process,” the State’s legal representation argued.
Kgosi had alleged that all cited in the papers acted individually and collectively, unlawfully and wrongfully engineered his arrest by falsely alleging that he had evaded to pay tax in 2017.
He cited Magosi in his own capacity arguing that he had effected his (Kgosi’s) arrest together with other officials on that day while Magistrate Motsamai is alleged to have issued an irregular warrant of arrest at Palapye Magistrate’s Court for tax evasion that purportedly occurred in Gaborone.
The former director general also alleged that Magistrate Motsamai in issuing the warrant abused her power and authority with no factual basis to do so thus enabling his arrest. Judge Kebonang made the application an order of the court and also ordered that the defendants in the matter file their pleadings and that all parties file all necessary papers before July 12, which has been set for status hearing.
Meanwhile, Kgosi is demanding P50 million from the State for “unlawful arrest and wrongful detention” that happened at the Sir Seretse Khama International Airport in 2019 upon his return from India. The former DIS director general who was arrested in the full view of the public is accusing the State of carrying a malicious and unlawful arrest on claims of tax evasion when there was no proof to that effect. According to the particulars of his claim, Kgosi said he was returning from a friend’s wedding in India with his family when he was ambushed with an unlawful and irregular warrant of arrest issued by Palapye Magistrate’s Court.
He explained that those in attendance to ensure the unlawful arrest was effected were Magosi, Botswana Unified Revenue Service (BURS) general manager, Kaone Molapo and several officers, and that after the arrest he was detained at a military facility at the Sir Seretse Khama Barracks which was unlawful and wrongful.
He has denied any claims of tax evasion saying he had never evaded or failed to pay tax to BURS a fact that is known to them, but the State decided to maliciously and falsely cooked up allegations meant to facilitate the unlawful arrest.
Kgosi said as a consequence of his unlawful arrest and wrongful detention, he suffered damages amounting to P50 million made up of unlawful arrest, P15m, unlawful detention, P5m, deprivation of freedom, P3m, inhumane treatment and emotional shock, P10m, aggravation of the spinal injuries, P7m, pain and suffering, P10m.
Kgosi argued the arrest and detention were unreasonable, malicious and without legal basis.
The State on one hand has denied any claim by Kgosi arguing that he is not entitled to the damages as claimed at all arising out of his arrest and detention. The State pointed out that he was arrested and detained because sufficient grounds existed to suggest that a crime had been committed on his part.
Diba Diba from Thabiso Tafila Attorneys represents Kgosi, Charles Gulubane is for the AG while Lawrence Khupe represents other defendants.