Botswana Unified Revenue Services (BURS) is appealing the default judgement issued against it in the former spy chief, Isaac Kgosi’s unlawful arrest and wrongful detention case for which the tax agency attracted P50 million in the loss.
According to attorney Tshiamo Rantao, recently instructed by BURS in the matter, Justice Kebonang granted the default judgement even though there was a pending application by BURS and its general manager Kaone Molapo for leave to file their plea out of time.
“With respect, it was not open to his Lordship to grant the default judgement before sitting down and determining the application for leave by BURS and Mr Molapo,” he said. Rantao said for that reason they have been instructed to appeal the default judgement and simultaneously to apply for a court order to suspend the execution (stay of execution) of the very same judgement.
Moreover, Rantao explained that they would also seek the judge’s recusal from the matter as they feel he is ‘conflicted’.
“We will, in any event, be applying for the recusal of his Lordship from the matter for reasons which we shall set out in the court papers,” he said. BURS and Molapo who appear as the seventh and eighth respondents in the matter were the only ones who were slapped with a default judgement and barred from filing any papers among all other respondents.
They appeared in his lawsuit as accused by Kgosi to have participated in his unlawful arrest and wrongful detention that happened at the Sir Seretse Khama International Airport in 2019 upon his return from India. Having failed to file their defence on time when the matter reached the court, Justice Kebonang ordered BURS to pay.
According to the judgement that was entered against BURS, the damages claimed by Kgosi in the sum of P50m in the whole suit against all the respondents will be assessed accordingly when the matter goes back to court on August 2, 2021.
“The damages of P50m being an unliquidated amount is to be assessed on the 2nd August,” reads the order. Meanwhile, the former Directorate of Intelligence and Security (DIS) chief has his gloves off 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 Kgosi’s lawsuit, he accused the state of arresting him in full view of the public meant as a way to embarrass him. The particulars of his claim are that 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.
“All cited in the papers acted individually and collectively, unlawfully and wrongfully, engineered my arrest by falsely alleging that I had evaded to pay tax in 2017 and obtained an irregular warrant of arrest at Palapye Magistrate’s Court for tax evasion that purportedly occurred in Gaborone,” he said. He explained those in attendance to ensure the unlawful arrest was effected were DIS director Peter Fana Magosi, BURS general manager, Molapo and several officers. After the arrest, Kgosi was in detention at a military facility at the Sir Seretse Khama Barracks that, he said, was unlawful and wrongful.
Kgosi, in denying claims of tax evasion, said he had never evaded tax or failed to pay tax to BURS, a fact that is known to them, but the state decided to maliciously and falsely cook up allegations meant to facilitate his unlawful arrest. Kgosi said as a consequence of the state unlawfully arresting and wrongfully detaining him he suffered damages in the range of P50m, which include his unlawful arrest (P15m), unlawful detention (P5m), deprivation of freedom (P3m), inhuman treatment and emotional shock (P10m), which he added aggravation of his spinal injuries (P7m), along with pain and suffering (P10m).
He said the arrest and detention were unreasonable, malicious and without legal basis, therefore, ‘unlawful and wrongful’. Kgosi’s writ of summons follows a statutory notice issued on January 21, 2021, where he made notice of his demands as he said he was arrested in full view of members of the public and international travellers, that the arrest was broadcast on various media outlets, radio stations, Btv and various social media platforms.
Those cited to provide those particulars include among others the Attorney General, Botswana Police Service, DIS, DIS boss Magosi, Magistrate Rebecca Motsamai, Police Officer Koketso Mbulawa and the Botswana Defence Force. The respondents, including the Attorney General, have been ordered to file their papers on or before today (Friday).