Former spy chief Isaac Kgosi says the Directorate of Public Prosecutions (DPP) has failed to deal with merits of his review case therefore it must succeed.
The former director-general of the Directorate of Intelligence and Security (DIS) in his additional court papers said, in the absence of evidence and the State failing to deal with the merits, they were on unsafe legal ground.
Kgosi, who was indicted in March 5, 2020, filed review application with the High Court on grounds that the decision by the State to prosecute him for the DIS dealings was irrational and unreasonable.
The former spy chief, who is charged amongst other things, with corruption and abuse of office, launched his review application as he denied any abuse of funds allocated to the DIS of which he is accused.
According to his recently filed additional court documents, Kgosi said the DPP avoided dealing with the merits of the application on the basis that such would compromise the criminal trial to be held in course, which was an error.
“They now sought to correct this error by dealing with merits in their heads. We submit again that the State is on unsafe legal ground. A review record constitutes the entire evidence to be led against me,” he said. He explained that failure to deal with merits meant that the averments were uncontroverted and must be accepted as such and that his case should be accepted as unopposed.
Kgosi noted that review record provides the four corners within which the relevant evidence must be anchored and that in the absence of such evidence the review must succeed.
“Just as with the record, the State must stand or fall by his answering affidavit. Their answering affidavit has been evasive and equally the State’s record, although voluminous, is irrelevant to be offences faced by applicant,” he said. He explained the Court could not go outside the review record or speculate on the potential existence of evidence, which has not been placed before it.
That the State would fail to deal with evidence or demonstrate how he was said to have abused his office or acted corruptly on the basis that such would compromise their criminal trial is an act of folly.
He pointed out that they were bound by the record and the evidence therein and not
“The law is clear on what heads of argument are. They are not pleadings but merely persuasive legal arguments. They do not take the place of pleadings. A party wishing to oppose a cause of action must do so by filling opposing affidavits not heads of argument,” he said.
Kgosi explained that the State’s case must be found in his answering affidavit and not heads of argument and for that reason he said heads cannot and must not be a substitute for his answering affidavit.
He said the State’s answering affidavit fails to deal with material aspects of his case.
In his replying affidavit, Director of Public Prosecutions Stephen Tiroyakgosi had submitted that review proceedings brought in terms of Order 61 (1) were civil in nature and therefore placed a peremptory duty on the applicant to serve a 30-day statutory notice upon the Attorney General in terms of Section 4 of the State Proceedings Act.
“I therefore have been further advised by the second respondent [Attorney General] and I do verily believe that no such statutory notice has been filed upon him or his office before commencement of the proceedings and accordingly this review application must be dismissed for non-compliance with the aforesaid Act,” Tiroyakgosi said.
Notwithstanding that his powers are reviewable, he hastened to add that these proceedings were not a good candidate for review because the matter was already before court.
“The decision the applicant seeks to review has been overtaken by time and events, more particularly that the criminal trial process against the applicant has commenced and is before the Magistrate’s Court,” Tiroyakgosi said.
He added that at this stage of the criminal trial process, the applicant cannot review his decision to prosecute him upon any grounds including on the grounds of irrationality, impropriety, unlawfulness or illegality.
“In fact, my decision is rational-based on the evidence, which will be adduced during criminal trial before this Court and that evidence cannot be produced or led at this stage.”
He prayed that the review application be dismissed with costs.
The review application will be argued today before Justice Michael Leburu in Gaborone.