Kgotlhane is alleged to have been part of a five member presidential task force commissioned to establish the DIS in March 2018 during the former president Ian Khama’s tenure. He joined the security unit when he was appointed by Khama as deputy intelligence and security director on April 9, 2008, eight days after taking office as president. Kgotlhane served under Khama and former DIS boss, Isaac Kgosi, before he allegedly quit in June 2024. It was reported that there were professional differences between him and Magosi.
However, the DIS was his home as evidenced by him once serving as its acting Director General. His troubles started in 2021 when he was accused of corruption and was arrested by Magosi’s officers in September 2021, following which it is alleged that he was subjected to interrogation on matters relating to past and ongoing projects of the DIS. According to court documents, he was released after interrogation from which time he proceeded with his duties until June 14, 2022 when he was called by the DIS Director, Legal and the lead investigator, who told him that the investigations were complete and he would be charged in a court of law. “Whilst waiting for the charges he received a letter from Magosi interdicting and suspending him from duty on or around August 1, 2022. The letter stated that he was under investigation relating to possible corruption allegedly committed by him concerning two companies being A.R. Electronics and Vlatacom,” reads court papers. It is mentioned that paragraph two of the suspension letter stated that; “It is on the basis of the above allegations that I have decided to invoke my powers in terms of Section 15 (1) of the Intelligence and Security (Act) as read together with Section 12 (1) of the Code of Conduct of the Directorate as well as the Public Service Act no 30 of 2008 Section 35 and interdict you from further performance of your duties with immediate effect pending investigations into these allegations and/or the institution of disciplinary proceedings against you.” After his suspension, it was revealed that he approached his attorneys who wrote a letter to Magosi dated September 8, 2022 objecting to the suspension.
The documents further stated that Magosi never honoured Kgotlhane’s letter with the courtesy of a response let alone an acknowledgment of receipt. “The applicant was surprised to learn from the letter of interdiction that he was under investigation which could lead to the institution of criminal charges and/or disciplinary proceedings against him. The interdiction was for an indefinite period notwithstanding the fact that he had been told by the Director in June 2022 that investigations were complete and he was to be charged,” read the papers. Accordingly, Kgotlhane said he had been on interdiction for close to six months without any word from Magosi nor an indication of the imminent institution of disciplinary or criminal proceedings against him at the time of the filing of the application. He averred that his interdiction is not only unfair but is also prejudicial and that the respondents have had ample time to investigate and/or charge him in a court of law or institute disciplinary proceedings. The deputy DG explained that he had not been charged and he has no idea when his interdiction will be lifted. “He concludes his affidavit by stating that his indefinite interdiction is unreasonable, unfair and unlawful because it has frozen his life by making it impossible for him to make decisions about his future,” stated court documents.
Meanwhile the respondents being Magosi, DIS and Attorney General filed points in limine on February 24, 2023 arguing that the declaratory orders and the directory orders sought were invalid. The respondents' reasons amongst others were that the decision arising in the case was an administrative decision and that such decision was valid until it is set aside on review. “Because the decision is administrative and valid, this court cannot interfere with such a decision unless it does so by way of a judicial review application. If the court interferes when the application before it is not one for judicial review, the court will be usurping the powers of an administrative arm of government,” reads the court papers. Further that the orders sought are incompetent and cannot be granted in law because of the foregoing reasons, that to grant then will offend Section 9 of the State Proceedings Act and in law, for the orders sought to be sought to be competent, the relevant administrative decision must be reviewed and set aside first. According to the documents, the respondent’s points in limine (preliminary points) were followed by Magosi’s answering affidavit on February 27, 2023.
He stated at the outset that Kgotlhane was interdicted from duty on account of possible acts of corruption, for which reason it was prudent to interdict him to enable the investigations to be conducted “swimmingly”. Magosi also revealed that there was nothing untoward about the interdiction which is perfectly legal, that the acts of corruption are egregious offences punishable by law and that whoever is implicated in corruption must be accordingly investigated without fear. “The investigations against the applicant are still ongoing and are at an advanced stage. They are, however, not easy to investigate, and it would be a dangerous usurpation of power to interfere with the matter whilst the investigations are pending,” he said.
In his deponent Magosi said his understanding of interrogation is that included aggression accompanied by threats and violence and stated Kgotlhane was never subjected to interrogation, that he was cordially interviewed with the aim to gather relevant information concerning “the past and current projects of DIS”. Magosi denied that he ever told his deputy that the investigations were complete, nor was in his capacity as the Director General ever informed of the completion of the investigations. "The decision whether to charge the applicant or not shall only be made after the conclusion of the investigations whilst the interdiction shall remain in force. Legally there is no requirement to provide the time frame for interdiction pending investigations and that a specified period of interdiction from duty would only be postulated where suspension is meted out as a penalty for disciplinary offences. That is not applicable in this case because no disciplinary proceedings have been laid against the applicant,” read Magosi’s affidavit. He proceeded to say that there was no legal requirement, to reveal the identity of the applicant’s Investigating Officer and to disclose the specific corruption offences that are the subject of the investigation. He also stated that Kgotlhane was informed of the reasons why he was interdicted and that he cannot be informed of the next cause of action when the investigations are ongoing.
Magosi said the allegation that there has been ample time to conclude the investigations was denied with an explanation that the speed of the investigations was determined by many factors including the complexity and nature of the offences allegedly committed. He also denied the allegations of unreasonableness, unfairness and unlawful interdiction pending investigations. The letter interdicting Kgotlhane, in Magosi’s view had all the attributes that are necessary to demonstrate the lawfulness, fairness and reasonableness of the interdiction which was one of the terms of employment between the parties. “It is stated that the letter of interdiction unequivocally discloses the reasons for the interdiction. The affidavit stated at the end that the decision to interdict the applicant is administrative and it is valid until set aside by way of judicial review. It is contended further that this application is not a judicial review and consequently the court cannot interfere with the decision at all,” further read the court papers. In conclusion, Magosi said Kgotlhane as an employee of the DIS was entitled to challenge his suspension for unreasonableness as a result of its indeterminate consequences, that the decision to interdict him was not administrative because it arises out of his employment relationship with the DIS.
