06 Nov 2022

The Directorate of Intelligence and Security (DIS) was wrong to conduct a search and seizure at Kenmoir Farm, a residence of Mr Anthony Khama.

The state security agency searched and confiscated properties at Kenmoir Farm on 27 and 28 October 2021, while executing a warrant against former president, Lt Gen. Seretse Khama Ian Khama, Isaac Seabelo Kgosi and Sehunelo Khunou.

The said property, Kenmoir Farm was listed as one of Lt Gen Khama’s residence, whereas it was Mr Khama’s place of residence.

Delivering the judgment on Friday, Court of Appeal (CoA) judge president, Justice Tebogo Tau said the search warrant was not enforceable or executable against Mr Khama’s personal property. 

“The seizure of the appellant’s personal property from Kenmoir Farm on the strength of the search warrant was irrational and unlawful,” she said.

As such, Justice Tau ruled that  Mr Khama was therefore entitled to the return of his property seized during the search and further ordered the respondent to pay the costs of the application.

The country’s apex court was weighing over a High Court decision against Mr Khama, which had ruled that the search warrant was wide enough to be executable against the appellant’s exclusive personal property and the appellant was not entitled to an order setting aside the search warrant.

However, Justice Tau, who presided alongside Justices Isaac Lesetedi and Singh Walia set aside the decision of the High Court. “It is not in dispute that the search warrant did not name the appellant, his firearms and any items belonging to him were not listed or described in the search warrant,” she said. Further, there was also no reasonable suspicion against him or evidence of him having been subject to an investigation.

She said none of the items seized by the search team at the farm, belonged to any of the respondents named in the search warrant. Therefore, she said the law enforcement officers made a mistake hence the removal of the property belonging to the appellant was illegal.

“The judge a quo was therefore wrong in his findings that the search warrant permitted the seizure of the appellant’s properties,” she said.

Justice Tau further added that the DIS was a creature of statues and its powers are prescribed and circumscribed by the Act.

She said the powers of search and seizure conferred by Section 22, could only be exercised in relation to offences stipulated in the Act, adding that none of those offences formed the basis of the application for the warrant. Justice Tau therefore ruled that the warrant was unlawfully obtained. ends