DIS suffers yet another court case defeat
The Directorate of Intelligence and Security (DIS) has suffered another blow by former Director General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katlholo at the Court of Appeal.
The DIS had appealed a decision by the High Court handed down in favour of Katlholo in a dispute in which the DIS sealed the DCEC offices as a crime scene and secured some of the files for investigations. Katlholo moved an application on urgency at the High Court against the officers of DIS.
The orders were of an interdictory nature intended to secure and safeguard certain investigative files in the custody of the DCEC. The files were kept under lock and key in the office of Katlholo, as well as his staff officer.
In its appeal grounds, the DIS argued among others that the court a quo erred in finding that Katlholo had locus standi in judicio both in his personal and official capacity to institute the court proceedings; the court a quo erred in holding that the respondent was entitled to proceed on an ex parte basis as the requirements therefore were not met.
Justice Isaac Lesetedi of the Appeals Court stated that this case concerns an egregious excess of authority and cried out for rectification and rebuke. He said only the courts are disposed of the power to administer these correctives.
According to the judge, the High Court acted with propriety in granting the orders it did. He stated that for these reasons the appeal must fail with costs to the respondent and it is dismissed with costs. He indicated that on the 3rd of May 2022 Katlholo was at the time outside the country on official business.
“He 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 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'.
“These acts by the DIS had been done without warning to the respondent let alone his consent. It is also common cause that immediately upon being alerted of this the respondent, alarmed, telephoned the appellant and informed him of the developments,” the judge said.
He pointed out that from these facts, it is clear that the DIS without lawful authority sealed Katlholo’s offices and that of his staff officer. Justice Lesetedi stated that the DIS then took control of those premises and designated them a crime scene with intent to access at least one of the files and documents therein.
“These purposes were legally entirely unsanctioned. The DIS had no legal entitlement to conduct itself in this way, pursuant to an investigation on which it was not empowered. Should the High Court have believed that, having gained access to the files in the sealed offices, the DIS officers would have closed their eyes to investigate files concerning their own? That is so far-fetched as to be unworthy of credence in motion proceedings,” Justice Lesetedi remarked.
The judge stated that in his founding affidavit, Katlholo also went to some length to demonstrate the potential prejudice a notice of application may occasion him. These included the DIS personnel forcefully accessing the sealed offices and taking away investigative files involving some of the DIS officers. Justice Lesetedi said the dispute between the parties had been brewing for some time prior to the sealing of the respondent's office.
He said from the correspondence filed of record this can be traced back to the 14th of December 2021, when the then Acting Director General of the DIS wrote a Savingram to the respondent 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" 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. 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 judge said.