11 Jan 2024

Gaborone High Court judge, Justice Zein Kebonang has recently ruled against the state’s attempt to prevent former Directorate of Intelligence and Security (DIS) director general, Mr Isaac Kgosi, from pursuing an application to have his firearms and licenses returned to him pending trial.

The Attorney General, Botswana Police Service and DIS had approached the court seeking to have the application by Mr Kgosi declared moot arguing that Mr Kgosi, alongside others, faced criminal charges ranging from unlawful possession of firearm and ammunitions, unlawful possession of a passport, obtaining by false pretense and stealing by a person employed in the public service, among others.

The state argued that they were entitled to seize Mr Kgosi’s firearms as part of their investigation and had lawfully seized his firearms and licenses under a warrant issued by the Extension II Magistrate court.

The state also argued that since they had instituted criminal proceedings against Mr Kgosi and others, returning his licenses and firearms was no longer relevant and would render the case moot or academic.

They claimed that the respondent’s suit, including the relief sought, must be dismissed with costs on a punitive scale, as they were no longer legally tenable.

However, Mr Kgosi said he was the lawful owner of the firearms and ammunition seized by the applicants.

He denied that they were either unlawfully imported, acquired, licensed or registered, saying they were lawfully registered and licensed by the Botswana police.

He argued that mere institution of criminal proceedings against him were not enough to affect his ownership or possession because licenses of the firearms had not been revoked.

In his judgement, Justice Kebonang said the regularity rule provided that where administrative decisions had been made by government officials, there was presumption of regularity unless proved otherwise.

As such, he said it was common cause that the respondent’s firearms were registered and licensed under the Arms and Ammunition Act by the police.

“Once the licenses were issued and the firearms registered, then the presumption of regularity that all the preceding statutory requirements had been complied with kicks in,” he said.

He added that the applicants, including the licensing authority, had not placed anything before the court to rebut the presumption other than to merely assert an irregularity.

“A mere assertion without more is not enough to dislodge the presumption,” he added.

Furthermore, he said in the absence of clear evidence, the court was entitled to presume that the second applicant had properly discharged its official duties.

“Applicants have not presented any evidence opposing the respondent’s lawful ownership and possession of the firearms in question or negated the legal and statutory authority of either the police, police commissioner or deputy police commissioner or the Arms Board to register and issue the said necessary licenses,” he added.

The application by Mr Kgosi to have his firearms and licenses returned is currently awaiting hearing at the High Court. Ends