It has not been established why Dow, who is also a former High Court judge, has withdrawn from the case. To make matters worse, the Lobatse High Court on Friday dismissed an appeal in which Kgafela was challenging the constitutionality of trying him as a Kgosi. The High Court ruled that "dikgosi cannot act outside the Constitution and laws prescribed by Parliament when all other functionaries of the state act within the prescribed statutory limitations; to do otherwise would clearly be unconstitutional" "This answers the question of go kgwathisa. The short answer to this question is that it has to be applied by a court, acting in accordance with and within the parameters of the enabling Act of Parliament," the High Court ruled. The appeal was heard by three judges: Chief Justice Maruping Dibotlelo, Justice Modiri Letsididi, and Justice Isaac Lesetedi.
The High Court referred the case back to the Gaborone Magistrate's Court for continuation of the trial against Kgafela and his tribesmen. The High Court ruled that the presiding magistrate briefly but correctly dealt with the issue of the referral and the court agreed with his reasoning. "There was no meritorious constitutional issue for this court to deal with and the arguments raised by appellants in relation to Section 18(3) of the Constitution from an objective assessment, are frivolous and/or vexatious," the High Court ruled. The accused persons have been charged in relation to the unlawful flogging of members of the public in Mochudi. The "constitutional" issue, which the accused had appealed to the High Court, was "whether go kgwathisa (flogging) is a lawful sanction of rule infraction under customary law". Delivering judgement, Justice Lesetedi said both the Constitution and statutory enactments in reference to the head of a tribe, recognise the title of chief or Kgosi and not Kgosi Kgolo.
