“Rarely, has agencies or arms of government come into conflict with each other over their respective mandates to a level at which litigation ensues up and proceeds to the apex court of the jurisdiction? This is such a case. Our attention has not been drawn to any precedent of a similar nature in this jurisdiction,” he said. In or around May 2022, the DIS exercised its 'supposed superiority' and flexed its muscle on the DCEC by taking over the office of its Director General (DG), Tymon Katlholo, and his officers under the guise that it was looking for some files among those being for Seleka Springs firm. Seleka Springs is an arms consultancy and procurement firm owned by former president Ian Khama’s younger brothers, Tshekedi and Anthony, and was alleged to be under the DCEC investigation for corruption relating to certain tenders. This, according to Katlholo, who has since left the civil service, was not so as the DIS officers were said to have been instructed by their boss, Peter Magosi, to look for files involving him and his other officers. The DCEC was alleged to have been investigating Magosi and some of his officers for alleged acts of corruption, reason being that most were living beyond their means, something that irked the spy unit.
Background to the dispute
The dispute between the parties reportedly had been brewing for sometime prior to the sealing of Katlholo’s office and his officers'. According to court documents, it can be traced back to December 14, 2021, when the then Acting Director General of the DIS wrote a Savingram to Katlholo informing him that the DIS was conducting investigations concerning the national security of the country "pursuant to its mandate in terms of the Intelligence and Security Services Act (ISSA) and that in the course of those investigations it had become necessary and urgent that the DIS investigating team interview some DCEC officers whose names the Savingram listed. “Those listed were senior officers of the DCEC including its Head of Intelligence and Deputy Director General of Operations as well as a senior member of its legal team. The Savingram demanded that those officers be released to the DIS urgently upon its receipt by the respondent. Though it was stamped top secret, the Savingram did not shed any further light on the nature of the investigations,” reads the court papers. In the court papers, it was never clear whether the alleged acts concerning national security of the country involved those officers acting in their official or in their personal capacities.
The papers stated that following a discussion between the respective DG’s of the two agencies, Katlholo penned a response on December 15, 2021 in which he acceded to the request but pointing out that some of the requested officers were not immediately available due to other official engagements though he noted that the DIS Savingram of December 14, 2021 was vague as to whether the required DCEC officers were themselves the subject of the investigations or they were to assist in such investigations.
Katlholo reportedly drew the DIS DG's attention to the provisions of Sections 19 (b) and 21 of the Corruption and Economic Crime Act (CECA) requiring the non- disclosure by DCEC officers of any information, which came into their possession by virtue of their official capacity. “The officers reported at the DIS offices at Sebele as required. The next series of correspondence came in February 2022, the first being a Savingram from the substantive DG of the DIS to his counterpart at DCEC. It is dated 7 February 7, 2022. It too advised Katlholo that the DIS was currently conducting investigations concerning national security of Botswana pursuant to its mandate in terms of the ISSA,” revealed the documents. Further, the Savingram allegedly called upon the DCEC DG to release other five of his officers to the DIS for investigations and again the Savingram reportedly did not shed any further light on the nature of the investigations or as to who was being investigated, nor did it shed any light as to whether the investigation related to the earlier one.
The Savingram was also said to have not stated whether the officers were a subject of investigation, whether it is the DCEC which was the subject of the investigation or whether those officers were to assist as part of the investigation team, if at all. “The latter would ordinarily involve the normal cooperative and consultative steps expected of security agencies of the same country operating on mutual respect and collaborative intent not demands by one on the other. Not only that, the Savingram also informed the respondent that the interviews may further necessitate access to official records in the custody of the DCEC,” read the court papers. Also,the papers revealed that the Savingram asked that those DCEC officers be authorised to access such official records to assist the DIS in its investigations and it gave those DCEC officers two days to attend the DIS office . In turn, the following day, the acting DG of DCEC responded and he informed the DG of DIS that the request had been acceded to but asked for a meeting between the two offices during the course of the week of February 14, “On February 16, 2022, the Director General of DIS wrote to Katlholo referencing the previous correspondences between the two, reiterating his request for the attendance of the listed DCEC officers at his office. He also sought to address, substantively, the statutory provisions of Section 19(B) and 21 of the CECA, purporting that those provisions should be understood in the context of Section 45 of the ISSA ,” reads part of the judgment. Magosi had sought to interpret the provisions as permitting the DIS to proceed with its intended investigations inclusive of obtaining the records and information it may seek from the officers of the DCEC and later, the DIS sought to rely on Section 45 as its empowering statutory provision to access the DCEC records and information that the DIS may ask for.
The back and forth between Magosi and Katlholo reportedly continued with the latter the following day when he responded, placing his own understanding of the statutory provisions under discussion, to demonstrate that the DIS understanding of the law may be flawed but nonetheless expressing a willingness for cooperative relations between the two agencies and for an amicable solution on the misunderstanding of where the statutory remit of each lay. The DIS was revealed to have requested to be furnished with all contracts between DCEC and Seleka Springs, all DCEC contracts facilitated by Seleka Springs whether directly or indirectly, as well as documentation detailing all amounts paid. Pursuant to that, on April 12, 2022, Katlholo apparently responded positively and he provided Magosi with copies of documents which were in its possession relating to the request and on April 25, 2022, the Acting Director General DIS was said to have noted the disclosure and made a further request in relation to the matter of the CRYPTO AG/Seleka Springs matter. “This was provided three days later on April 28, 2022. The following day the Acting Director General DIS made a further written request, purportedly still concerning the national security of the country, "pursuant to its mandate in terms of the Intelligence and Security Services Act. The Savingram informed the respondent that it had become necessary and urgent that its investigating team interview two officers in DCEC, one of whom was a senior officer,” stated the papers. In his judgment, Justice Lesetedi said during the exchange between the two agencie,s he noted that nowhere does it appear that the DIS ever at any stage sought legal advice from the appellant on the interpretation of the various statutory provisions regarding its mandate and the provisions relied upon by the respondent in querying the DIS entitlement to the records of the DCEC. He explained that what followed the above communication was a Savingram dated May 4, 2022 still from the Acting DG of the DIS advising Katlholo once more that the DIS was currently conducting investigations concerning the national security of Botswana "pursuant to its mandate in terms of the Intelligence and Security Service Act.
According to the judgment, the DIS further requested access to a specified DCEC file and the release of four more DCEC officers for interviews, noting that further investigations may necessitate the DIS to access official records in the custody of the DCEC and requesting that the DIS officers be authorised to access such official records in order to assist its investigations.
The officers were required to be released urgently the following day to attend at the DIS offices and by that time, Katlholo allegedly was already out of the country on an official engagement.
The Court dispute
On or around May 5, 2022 Katlholo was informed that the offices of the DCEC had been barricaded and that his office as well as that of his staff officer, who was apparently with him on the official business, were sealed off by officers of the officers of the DIS as a "crime scene" - ostensibly to secure certain files which the DIS claimed to be necessary for their investigation in what they termed 'investigations concerning national security of Botswana.
He was reportedly forced to call the Attorney General numerous times seeking protection but instead he allegedly played deaf forcing Katlholo to approach court on urgency.
The High Court gave him the orders it sought but the DIS approached the Court of Appeal where on Friday 28, June,2024 it lost the appeal after being told it is over reaching.
Meanwhile, Katlholo still has a pending case where he is suing the DIS, Magosi and others for malicious and defamatory utterances. He is demanding P2 million.
