When former Judge of the Gaborone High Court, Abednego Tafa, ordered the Directorate of Intelligence and Security (DIS) to hand over a total of 10 guns to former spy chief, Isaac Kgosi, in June last year, he was in breach of many rules of the High Court and the law, the Attorney General has said.
Representing the AG at the Court of Appeal on Friday, Kgotso Botlhole argued that Judge Tafa’s decision was flawed and that he committed a fundamental error in holding that AG did not oppose the Kgosi application for the guns to be surrendered to him.
“It is unclear that the High Court, notwithstanding the fact that it had the AG’s Answering Affidavit on record, elected to determine the matter as unopposed, and effectively locked the door of the Court to AG whose case had not been heard on merit,” argued Botlhole.
Kgosi kicked off the proceedings in December 2020 citing the AG, Botswana Police Service and DIS as the Respondents in the High Court case.
On June 10th 2022, JusticeTafa ordered the law enforcers to hand over within three days, a 300 rifle serial number 71095502; 12 gauge double barrel shotgun serial number 050544; 9mm Jericho pistol with 2 magazines 14A; 30/60 rifle serial number C700521 Bruno; 308 rifle serial number 3433854; O/U shotgun 12g serial number 09137NP153; 9mm pistol serial number U-857992; Combination 12/76 and 3006 serial number 4/8664 4R 04838; 50mm pistol serial number 41201234; and 12 gauge shotgun serial number 63529PR152.
Botlhole said the High Court misdirected itself in favour of Kgosi when it ignored the fact that Kgosi never filed some correspondence with the court, which letter carried a lot of weight to his Notice of Motion.
He added that in the same breath, the judge ignored the Answering Affidavit by AG and proceeded under the guise that the matter was unopposed.
Botlhole concluded that the sequence of events was evidence that the AG complied with the Rules of the High Court but the judge seemed biased towards Kgosi.
“The High Court ought to have exercised its discretion in a manner directed towards achievement of a just, efficient and speedy dispensation of justice and consideration of prejudice occasioned on the AG by completely ignoring their Answering Affidavit. In the hierarchy of possible sanctions, hearing the matter as unopposed was the most drastic and/or most serious of the sanctions,” he said adding that the matter should be remitted to the High Court for retrial.
Defending the Kgosi, attorney Diba Diba said the judgment was proper because the AG did not comply with the Rules and the time frames stipulated in the law.
He said the AG and others did not utilize the many opportunities they were granted to reply to Kgosi’s papers and therefore their appeal should be dismissed with costs.
Justices Isaac Lesetedi, Leatile Dambe, and Bess Nkabinde presided over the matter and judgment was reserved for August 4th.
