DIS hits another brick wall
Justice Gaongalelwe won’t have their appeal heard expeditiously
Court of Appeal Judge Monametsi Gaongalelwe has refused a request by the Directorate of Intelligence and Security ( DIS) to have an appeal for a search warrant against former President Ian Khama’s residence heard expeditiously.
The DIS launched the application with the appeals court seeking an order directing that the appeal in which they are challenging a High Court judgement delivered last month be heard as an expedited appeal.
Justice Ranier Busang of Lobatse High Court dismissed the DIS application for a search warrant of Khama’s property being Plot 260/ 261 also known as State House 4. Justice Busang dismissed the application citing that the court should not be quick to grant orders, which would amount to intrusion into the private life of an individual, as and when asked to do so without interrogating in detail if such an order is justified.
He explained that had the DIS been vigilant enough in the first application of the search warrant, there would have been no need for the application to search Khama. “The DIS has not made a case for granting the order it is seeking, therefore the application is dismissed,” he ruled.
This week Justice Gaongalelwe stated that the law is that in order for the court to treat a matter as urgent and therefore deserving jumping the queue, it must be demonstrated and be apparent that the Applicant acted promptly from the time he became aware of the adverse event, occurrence or order.
He stated that the Respondent Counsel has submitted that the Applicant’s conduct falls far short of having acted promptly from 23rd October 2021 when they detected the omission in relation to State House 4 to the 19th November 2021 when they filed the second ex- parte application aimed at correcting the error.
“I must hasten to say there is merit in this submission which is even made more weighty by the averments of Applicant that the Respondent had actually told the team on 23rd October that there were firearms in the premises and they never came back in an endeavour to collect such in terms of the mutual agreement.
“If indeed the Applicant and his team had treated the matter as deserving of urgency on account of threat to National Security, one would have expected them to have either honoured the agreement to go to be handed the stuff, at least for what it was worth, or if the visit turned out to be an exercise in futility, or were dissatisfied with the quantity handed to them to have proceeded to file the second application immediately,” explained Justice Gaongalelwe.
He said it has turned out that the application was only filed at the High Court on 19th November 2021 which was some 25 days later computing from 23rd October 2021.
The judge explained that the requirement to act promptly is in consonant with the cardinal and sound maxim of the common law which is part “of our law that leges vigilantibus non dormientibus subreniunt meaning the law assists the vigilant and not those who are asleep or are inactive about their rights and their affairs.”
He said it is further his view that the commendable rule of practice that a judge faced with an urgent application must drop everything else and apply all his efforts to it must apply with equal if not greater force to the Applicant in the matter as the dominus litis.
On exceptionality of the matter, Justice Gaongalelwe said as per Rule 11 ( 1) exceptionality of the matter is an indispensable prerequisite for the success of an application of this nature. He said Applicant’s counsel has submitted that if the hearing of the appeal is delayed, Respondent may tamper with evidence in the intervening period.
Justice Gaongalelwe stated that but as demonstrated by affidavits on either side Respondent has been aware of the intention to conduct a search on his premises since October 2021.
The DIS has not made a case for granting the order it is seeking, therefore the application is dismissed
“It has further been submitted by counsel for Applicant that delay in hearing the appeal would ground the investigations to a halt since State House 4 would remain sealed probably with the requisite firearms being inside there and that investigators would not have access thereto.
The second leg of the submission on this particular point is that if State House 4 remains sealed the situation would be prejudicial to Respondent himself since that is his official residence.
But as regards the Respondent he cannot be entitled to complain of any inconvenience caused by the sealing of the premises in the interim since that would be in sharp contrast to the instructions he has given to his attorneys to oppose the application for an expedited appeal.
To do so would be blowing “hot and cold”, the judge said.
He added that moreover what renders these submissions untenable is that it is the DIS’ own team that sealed the premises rendering it inaccessible. The situation is therefore the creature of the Applicant and no one else, he said.