The death of former Directorate of Intelligence and Security Services (DIS) Director General Isaac Kgosi may have come as both a shock and a relief to President Mokgweetsi Masisi’s administration, but has also brought a new headache, given the series of criminal and civil cases still before the courts. Since his passing, the state has notably refrained from making any public comments or offering condolences regarding Kgosi’s death. However, the pressing question remains: what will happen to the string of cases involving Kgosi and the state?
A legal expert at the University of Botswana, Obonye Jonas explains that an Executor of Kgosi’s estate will now be responsible for pursuing these matters, while the state, if it chooses, can still go after the estate through him/her. According to order 19 of the rules of the High Court, “No proceedings shall terminate solely by reason of the death, marriage or other change of status of any party thereto unless the cause of such proceedings is thereby extinguished”.
Subsection 3 further says, “whenever a party to any proceedings dies or ceases to be capable of acting as such, his executor, curator, trustee or similar representative may by notice to all other parties, and to the Registrar, intimate that he desires in his capacity as such thereby to be substituted for such party, and, unless the judge otherwise orders, he shall thereafter for all purposes be deemed to have been so substituted.”
An Executor Datif responsible for managing Kgosi’s estate according to the terms of his will and applicable laws, will be responsible for filing the will with the appropriate probate court to initiate the probate process, identifying and taking control of the deceased’s assets, and determining the value of those assets at the time of death. The Executor will also settle any outstanding debts and taxes, manage the estate’s assets during the probate process, and eventually distribute the remaining assets to the beneficiaries as specified in the will.
Jonas says however, personal cases, such as those involving defamation and unlawful arrest, may face significant challenges and could be difficult to continue as they involve giving evidence.
Kgosi’s Court Cases
According to law, when a litigant or defendant dies, the outcome of a case can vary depending on whether it is a civil or criminal matter. In civil cases, if the plaintiff dies, the case can generally continue if the claim can be inherited or transferred to the plaintiff’s estate or legal representative.
One of Kgosi’s lawyers, Diba Diba says the deceased’s personal representative can substitute him/ her in the case, continuing the legal proceedings on their behalf. Like other lawyers, he says defamation cases, which are personal in nature, will likely die because the cause of action is considered personal to the individual. This means the case could end without a resolution unless specific laws allow for continuation and substitution. Isaac Kgosi had two defamation cases before the courts, which remain unresolved following his death.
P30m defamation claim (2020)
In 2020, Kgosi through one of his lawyers, Unoda Mack demanded P30 million in damages from the state for defamation. He claimed that defamatory statements were made against him by the Directorate on Corruption and Economic Crime (DCEC) lead investigator, Juko Hubona. These statements were included in an affidavit opposing bail for Welheminah Maswabi, also known as Butterfly, who was charged with financing terrorism. Hubona’s affidavit claimed that Kgosi was involved in theft, money laundering, and terrorism, including transferring large sums of money from the Bank of Botswana to various international accounts. Kgosi vehemently denied these accusations, stating they were false and fabricated to damage his reputation. Besides the P30 million in damages, he demanded a public apology, a retraction of the statements, and an assurance from the state that no further defamatory statements would be made.
Magosi Defamation suit (2022)
In 2022, Kgosi also filed a defamation lawsuit against his successor at DIS, Peter Magosi, seeking P3 million in damages. Kgosi claimed that Magosi made defamatory statements in a 2019 affidavit, alleging that millions were siphoned from DIS funds during Kgosi’s tenure. Magosi suggested that the funds were used for illegal activities and that individuals linked to Kgosi, including former DIS officers, acquired properties not aligned with their incomes. Kgosi denied these allegations, arguing that they were baseless and had severely harmed his reputation. He demanded damages, interest, a public apology, and a retraction of the statements. The case is currently before Justice Michael Leburu of the Gaborone High Court. Like another one, the case according to lawyers will likely die.
P50m unlawful detention suit
In another case, Kgosi was suing the state for P50 million for unlawful arrest and detention in a military prison at Sir Seretse Khama Barracks. The case, presided over by High Court Judge Dr. Zein Kebonang, who was previously co-accused with Kgosi in the National Petroleum Fund (NPF) case, involves several state entities, including the DIS, Botswana Defence Force, and Botswana Police Service.
Kgosi claims the arrest warrant, issued by Palapye Magistrate Rebecca Motsamai, was irregular, forged, and outside her jurisdiction since the alleged tax evasion occurred in Gaborone, not Palapye. He asserts that his arrest on January 15, 2019, at Sir Seretse Khama International Airport was a public spectacle aimed at humiliating him, with media invited to cover the event. Kgosi sought damages for various claims, including unlawful arrest and detention, inhuman treatment, emotional distress, and physical suffering, arguing that the actions were malicious and without legal basis. Legal experts say, like defamation cases, because its personal in nature, it highly likely to be buried with the applicant.
Executor pursues seized assets
The real war will likely center around the criminal matters involving Isaac Kgosi’s properties, which both the executor of his estate and the state will be keen on securing or retaining. These include Kgosi’s firearms and assets that were forfeited to the state, currently under legal dispute. While a criminal case generally abates if the defendant dies, as a conviction cannot be imposed on a deceased person, lawyers suggest that these cases might continue due to related civil matters that need to be addressed by the deceased’s estate. According to the law, if there are damages to be recovered or other civil liabilities the case may be pursued by or against the estate.
Kgosi’s estate is expected to inherit the responsibility for these assets, with the court ultimately deciding how the seized assets will be handled. The legitimacy of the seizures is under scrutiny, as Kgosi had contested them, arguing that the state failed to prove they were proceeds of crime. The 100bn lie
Isaac Kgosi also leaves behind the controversial “stolen P100 billion” hoax, a case sponsored by the state. Despite the High Court dismissing the case, the state seems to have abandoned the case, allegedly hoping it will fade away over time. In 2019 the state claimed that former President Ian Khama and Kgosi looted P100 billion directly from the central bank. The DIS, along with the Directorate on Corruption and Economic Crimes (DCEC) and the Department of Public Prosecutions (DPP), alleged that Khama and Kgosi orchestrated this theft during Khama’s presidency, with DCEC investigator Jako Hubona stating in court that the two had directed the Bank of Botswana to open accounts used to embezzle the funds.
However, the Bank of Botswana dismissed these allegations as false. Earlier this year, in response to a parliamentary inquiry from Maun West legislator Dumelang Saleshando, Finance Minister Peggy Serame also distanced herself and her ministry from the case, stating that neither she nor the Bank of Botswana were aware of any missing P100 billion or involved in any related investigations or court cases. She clarified that the responsibility to withdraw the case lies with those who initiated it.
Prior to that, the Chief Justice Terence Rannowane had also expressed concern over the damage caused by the case, “We are all aware of the Wilheminah Maswabi case, where the accused was brought to court on fabricated evidence. That particular case caused untold reputational damage to our criminal justice system, not just here at home but abroad. As head of the judiciary I get concerned when our institutions professional image takes a hit. In fact, I am on record in one of my legal year speeches expressing regret about the tendency of charging people first and investigating the case thereafter.” Maswabi has since been reinstated by the state and sources say she has chosen to abandon her suit for defamation to prioritise her peace