This is despite the two agencies having previously said the guns shouldn't be released to Kgosi as they formed part of their investigation into illegal possession of arms of war and a pending case at the Magistrate's Court. The DIS had also alleged that the guns were acquired illegally and were arms of war that posed a national security threat and, therefore, shouldn't be released to Kgosi. According to Justice Zein Kebonang of Gaborone High Court, the two agencies represented by the Attorney General failed to show up for arguments of the case despite being served with a notice of set down. "The respondents did not show up in court when this matter was called despite having been served with a notice of set down. They did not provide an explanation for their none appearance nor make any arrangements to ensure that they were represented," he said when he handed over the guns to Kgosi. Kebonang said in his judgment that they must, therefore, take responsibility for their conduct.
The agencies were reportedly investigating the legality of the guns and Kgosi, together with former president Ian Khama, former Commissioner of Police, Keabetswe Makgophe, and former deputy permanent secretary in the Ministry of Youth, Gender, Sport and Culture (MYSC), Victor Paledi, who were charged concerning the acquisition of guns and ammunition. Makgophe and Paledi's charges have since been dropped. Kgosi's guns and those of Khama were said to be arms of war by the DIS, therefore, posing a national security threat. However, Kebonang questioned why the guns were even referred to as arms of war, pointing out that the explanation for the arms of war didn't at all relate to the guns seized from Kgosi. He read, "Section 2 of the Arms and Ammunition Act, 2018 defines 'arms of war' to mean artillery of all kinds, apparatus for the discharge of all kinds of projectiles, explosive or gas-diffusing, flame-throwers, bombs, grenades, machine-guns and rifled small-bore breach- loading weapons, or such arms as may be prescribed, but does not include sporting rifles, or personal or other weapons or apparatus not intended for warlike purposes...". The judge stated that the DIS and BPS didn't state which of Kgosi's firearms were arms of war and as a result, they left the court none the wiser. "They don't even state whether the Act prohibits the licensing and registration of arms of war. BPS which is the designated licencing authority in terms of Section 3 of the Arms and Ammunition Act, hasn't and doesn't dispute that Kgosi's firearms and ammunition were properly registered and licensed by it. "It, in fact, confirms in a letter to Kgosi's attorneys, dated April 3, 2020, that they (BPS) were 'never issued with a court order to seize property from your clients'. "They then re-direct Kgosi to the DIS as the persons who 'searched and seized the said property'." Justice Kebonang questioned how an entity that doesn't have any licensing authority or oversight over BPS determines that there has been a violation either by the police or the applicant in the registration and licensing of ammunition and firearms.
