BURS appeals Kebonang’s P50m judgement
The Botswana Unified Revenue Service (BURS) is appealing the default judgment issued against it in the former spy chief, Isaac Kgosi’s case for unlawful arrest and wrongful detention for which the tax agency attracted P50m in loss.
BURS, who were on Tuesday ordered by Justice Zein Kebonang of the Gaborone High Court to pay Kgosi for failing to file and deliver a plea in the matter, says they will be filing an appeal against the default judgment while also seeking a stay of execution.
According to attorney Tshiamo Rantao, who was recently instructed by BURS in the matter, Justice Kebonang granted the default judgment despite the fact that there was a pending application by BURS and its General
Manager Kaone Molapo for leave to file their plea out of time.
“With respect it was not open to his Lordship to grant the default judgment before sitting down and determining the application for leave by BURS and Mr Molapo,” he said.
Rantao said for that reason they have been instructed to appeal the default judgment and, simultaneously to apply for stay of execution of the very same judgment.
Moreover, Rantao explained that they would also seek the judge’s recusal from the matter as they feel he is conflicted.
“We will, in any event be applying for the recusal of his Lordship from the matter for reasons which we shall set out in the court papers,” he said.
BURS and Molapo, who appear as the seventh and eighth respondent in the matter, were the only ones who were slapped with a default judgment and barred from filing any papers among all other respondents.
They appeared in his lawsuit as one of those accused by Kgosi to have participated in his unlawful arrest and wrongful detention that happened at the Sir Seretse Khama International Airport in 2019 upon his return from India.
Having failed to file their defence on time when the matter reached court, Judge Kebonang ordered BURS to compensate Kgosi.
According to the judgment that was entered against BURS, the damages claimed by Kgosi in the sum of P50m in the whole suit against all the respondents will be assessed accordingly when the matter goes back to court on next month (August 2).
“The damages of P50m being an unliquidated amount is to be assessed on the August 2,” reads the order.
Meanwhile the former Directorate of Intelligence and Security (DIS) has his gloves out accusing the state of carrying a malicious and unlawful arrest on claims of tax invasion when there was no proof to that effect.
According to Kgosi’s lawsuit, he accused the state of arresting him in full view of the public meant to embarrass him.
The particulars of his claim are that he was returning from a friend’s wedding in India with family when he was ambushed with an unlawful and irregular warrant of arrest issued by the Palapye Magistrate’s Court.
“All cited in the papers acted individually and collectively, unlawfully and wrongfully engineered my arrest by falsely alleging that I had evaded to pay tax in 2017 and obtained an irregular warrant of arrest at the Palapye Magistrate’s Court for tax evasion that purportedly occurred in Gaborone,” he said.
He explained those in attendance to ensure the unlawful arrest was effected was DIS director Fana Magosi, BURS general manager, Molapo and several officers. He said that after the arrest he was detained at a military facility at the Sir Seretse Khama Barracks which was unlawful and wrongful.
Kgosi, in denying claims of tax invasion, said he had never invaded tax or failed to pay tax to BURS a fact that is known to them but the state decided to maliciously and falsely cook up allegations meant to facilitate the unlawful arrest.
Kgosi said as a consequence of his unlawful arrest and wrongful detention by the state, he suffered damages in the amount of P50m made up of unlawful arrest (P15m), unlawful detention (P5m), deprivation of freedom (P3m), inhuman treatment and emotional shock (P10m), aggravation of the spinal injuries (P7m), pain and suffering (P10m).
He said the arrest and detention was unreasonable, malicious and without legal basis and therefore unlawful and wrongful.
Kgosi’s writ of summons follows a statutory notice issued on January 21, 2021 where he made notice of his demands as he said he was arrested in full view of members of the public and international travelers and that the arrest was broadcasted on various media outlets, radio stations and Btv and various social media.
Those cited to provide those particulars include among others the Attorney General, Botswana Police Services, DIS, DIS boss Magosi, Magistrate Rebecca Motsamai, Police Officer Koketso Mbulawa and Botswana Defence Force.
The respondents including the Attorney General have been ordered to file their papers on or before today, (Friday).