-DIS appeals two High Court decisions on State House 4

The fight between Former President, Lt Gen Ian Khama and the Directorate of Intelligence and Security (DIS) over the search and seizure of State House 4 is expected to be finalised during the July Court of Appeal session.

The DIS appealed a decision by the High Court ordering the agency to allow Khama to access State House 4 situated in Gaborone, Extension 9 Plot 260/261.

The DIS has launched two appeals against High Court decisions that were granted in favour of Khama. The cases are the search and seizure which was before Justice Ranier Busang and the Spoliation case before Justice Godfery Radijeng.

The appeal case for search and seizure will be heard on the 15th of July 2022 while the appeal matter for Spoliation is to be heard by the Court of Appeal on the 21st of July 2021.

Justice Busang of Lobatse High Court dismissed the DIS application for a search warrant of Khama’s property being Plot 260/261 also known as State House citing that the court should not be quick to grant orders, which would amount to intrusion into the private life of an individual, as and when asked to do so without interrogating in detail if such an order is justified.

He explained that had the DIS been vigilant enough in the first application of the search warrant, there would have been no need for the application to search Khama’s residence.

“The DIS has not made a case for granting the order it is seeking therefore the application is dismissed,” Judge Busang ruled.

The DIS then approached the appeals court to have the matter heard on urgency but Justice Moanemetsi Gaongalelwe dismissed the matter.

In the spoliation case the DIS has an appeal against the decision of Justice Dr Godfrey Radijeng in which he made an order madament van spolie (a remedy protecting against the unlawful deprivation of another person’s right to possession of property, whether it’s movable or immovable) in favour of Khama.

In November 2021 Lobatse High court dismissed the application by the DIS for an urgent application to search the State House 4, and granted a spoliation order to the former President.

On the 19th of October 2021, the DIS brought an application before the High Court for a search warrant against Khama which covered some of his premises. The application was granted and the search warrant was issued and executed.

The DIS realised that the warrant did not cover the State House 4 and the former president refused to give them access to search the property, but he however did confirm that there were some arms and ammunition within the premises in a safe which was locked but that the person who had the keys to the safe was unavailable.

Aided by the discovery of weapons within the house, the DIS approached the High Court for a search and seizure warrant of State House 4 on the 19th of November 2021.

The urgent application sought to search the premises and view CCTV footage and any evidence of crime. However, the application was thrown out.

DIS filed an appeal against the decision of the High Court Judge, Godfrey Radijeng in which he made an order issuing a spoliation order in favor of Ian Khama which later got dismissed.

Nevertheless, Khama and his legal team later sought an expedited appeal which Justice Leatile Dambe dismissed.

Justice Dambe said “I must say right at the outset that the application is incompetent because it is not founded on any law or practice.

“To the extent that it is founded on Rule 11 (2), it is incompetent and it baffles my mind how this could have escaped the minds of senior attorneys when they decided to litigate on this matter.

“The reason why this application should not have come before me in the first place is that firstly, the Applicant is not the Applicant in the pending appeal CACGB-315-21 instituted by the Respondent.

“Secondly, the application is not accompanied by any proposed notice any grounds of appeal and in any event the Applicant had none to attach because he is not the Appellant in the appeal by the Respondent and there is no cross appeal in the matter.”