BAKWADI LEKOPANE
The High Court has declared that the ongoing legal battle between former spymaster Isaac Kgosi and the state has unfairly destroyed careers and lives.
When making a ruling on the Kgosi firearms and ammunition case, Justice Dr Zeinub Justice Kebonang emphasized that the protracted feud, characterized by mutual dislike and mistrust between Kgosi and the spy agency, has had detrimental effects on various government agencies, permeating every layer of public and private life.
Describing the case before him, Justice Dr Zeinub Justice Kebonang expressed concern about the negative impact on the smooth functioning of government agencies, asserting that the impasse has taken a toll on the rule of law and the sanctity of institutions. He warned that if allowed to continue, the case could further harm the country, if not already done so.
“How can describe the case before me. It is one of the mutual dislike and mistrust between a spy agency and its former spymaster. This has negatively affected the smooth functioning of the different agencies in the web of government. Every facet of public and private life has felt this impasse. The fallout permeates every layer of government and many careers and lives have been unfairly destroyed as a result. With no end in sight, it weighs on the rule of law and the sanctity of institutions. Allowed to continue, it will take the country with it, if it has not already done so,” reads the ruling.
The case originates from an application filed by Isaac Kgosi in 2020 in which he sought the immediate return of his firearms and ammunition together with the corresponding permits;cost of suit, further and alternative relief.
The Kgosi application which had been determined by Tafa J was appealed by the applicants to the Court of Appeal whereat it was remitted to Kebonang’s court for hearing on a complete set of pleadings.
However subsequent t the Kgosi application, the state filed an interlocutory application seeking to have the Kgosi application declared moot.
In their affidavit, the state asserts that they are entitled to seize Kgosi’s firearms as part of their investigative work. They maintain that they are law abiding and that Kgosi’s firearms and licences were seized pursuant to a lawfully issues warrant by the Extension 2 Magistrate Court. This however cannot be true because the seized firearms and ammunition were not part of the paraphernalia contained in the warrant issued by the extension a Magistrate Court.
Having now instituted criminal proceedings against Kgosi and others, the state argue that Kgosi’s application interms of which he is seeking the return of his licensed firearms has been rendered moot and or academic by reason of the criminal prosecution. To this end, the state argue that Kgosi’s suit including the reliefs sought by him must be dismissed with costs on a punitive scale, as they are no longer legally untenable.
Kgosi in his application however said the firearms and ammunition seized by the state were lawfully registered and licensed by the Botswana Police Service and that there was no legal basis for their seizure.
On the mootness application, Kgosi says he is perplexed by the assertion and states that the mere institution of criminal proceedings against him is not enough to effect his ownership or possession of the firearms in the absence of a conviction. He also states that the licences in respect of his firearms have not been revoked by either the Police or court to justify their confiscation. Kgosi maintains that he is entitled, as a lawful owner to a return of the firearms and their licences and that his claims to them cannot be regarded as moot.
The ruling..
When making his ruling, justice Dr Zeinub Kebonang said: “Regardign the warrant issued by the Magistrate Court, it should have been apparent to (the state) that it did not authorise the seizure if (Kgosi)’s firearms. Without a court order, the state conduct amounts to self help and is in breach of the law.”
He continued that ultimately when all is said and done, the state has not adduced any evidence negating Kgosi’s lawful ownership and possession of the firearms in question, nor have they negated the legal and statutory authority of either the Police, the Police Commissioner or Deputy Commissioner or the Arms Board to register and issue the necessary licences.
“The DPP has a duty in discharging her prosecutorial functions to protect the integrity of the courts by ensuring that courts function as courts and are not co opted into presiding over ill-fated cases that do not meet the requisite threshold for a successful prosecution.
On the basis of the documents before me, I have no hesitation in arriving at the conclusion that the charges against Kgosi arising from the registration and licensing of his firearms are malafide and a glaring abuse of power. The charges are doomed to fail. It follows that the mootness application must fail with costs in favour of the respondent (Kgosi),” concluded the judge.