14 Dec 2021

Directorate of Intelligence and Security (DIS) yesterday lost in its expedited appeal application against the refusal to conduct a search and seizure at former president Lt Gen Dr Seretse Khama Ian Khama’s official residence, State House number four.

Delivering judgment on Tuesday, Justice Monametsi Gaongalelwe of the Court of Appeal refused the state application and ordered that the appeal be allocated a date of hearing like all other appeals.

DIS had approached the CoA with the application seeking an order directing that their appeal challenging a High Court judgment by Justice Rainer Busang in November be heard as an expedited appeal.

However, Justice Gaongalelwe said there were no exceptional circumstances that could compel the court to agree.

He pointed out that exceptionality of a matter was an indispensable prerequisite for the success of an application such as the one brought by the intelligence body.

He threw out the DIS’ submission that if the hearing of the appeal was delayed, the respondent may temper with evidence in the intervening period.

“But as demonstrated by affidavits on either side, respondent has been aware of the intention to conduct a search warrant in his premises since October 2021,” he said.

He also dismissed the DIS’ contention that delay in hearing the appeal would ground the investigations to a halt given state house number four remained sealed and inaccessible to investigators.

“What renders these submissions untenable is that it is applicant’s own team that sealed the premises rendering them inaccessible.

The situation is therefore the creature of the applicant and no one else,” he added.

Hence he said the application cannot be described as extra ordinary saying, “a litigant cannot succeed on the basis of exceptionality and urgency which are self-created.”

The DIS had approached the CoA after the High Court turned down its request to search Plot 260/261 being the official residence of former president  Khama.

The agency had stated that the house, was erroneously omitted from the initial search warrant issued against Lt Gen Khama, and the omission was only discovered October 23rd.

Following a stalemate between former president  Khama and the DIS, which wanted to search the premises, the agency approached the High Court on 19 November for it to sanction the seach and seizure.

However Justice Busang dismissed the application, hence the appeal for expedited hearing. ENDS