This is despite the court admitting that it was wrong of the DIS to conceal and deny him the opportunity to deal with material documents that should have formed part of the record proceedings.
Khama had wanted the court to punish the intelligence agency with punitive costs for lying and concealing information before courts.
According to the former statesman, the DIS had on November 19, 2021, filed an ex-parte application before Justice Chris Gabanagae of the Gaborone High Court seeking a search warrant for his house in Extension 5 referred to as State House Number 4 but failed and on the same day re-filed the same application before Lobatse High Court judge, Ranier Busang without disclosing that the same application was denied earlier.
Now the court bench of judges, Isaac Lesetedi, Singh Walia and Leatile Dambe, has refused Khama’s application together with the costs he wanted but still gave him the reliefs he sought without costs. Judge Lesetedi explained that though Khama’s application was dismissed, the court used its discretion to grant him the reliefs he sought of the record the DIS omitted to be submitted as part of proceedings.
“The Court of Appeal exercises its powers to admit a record of the said application and the court order made therein, as additional evidence for hearing of the appeal against the decision of the High Court,” he said.
Judge Lesetedi added that since Khama did not succeed with his application and also the DIS had succeeded in its opposition to including the proceedings talked of in the record of the appeal it was only right for each party to bear the cost of the application. He further explained that the court used its discretion because there was no doubt as to the relevance of the record application at judge Gabanagae’s court to the consideration of the appeal. “Because the substantive applications of search warrants brought before the High Court by DIS were ex-parte and the orders sought were final, Khama did not have an opportunity to present any defence to the application let alone the legal platform to bring to the High Court the existence of the application that was before judge Gabanagae and its orders granted,” he said.
He pointed out that Khama was denied the opportunity to deal in any way with that application and only came upon the application of judge Busang which was the subject of a pending appeal, it was only right for the court to use its discretion to admit that record as part of the appeal. Khama had wanted the DIS punished for misconduct and concealing crucial information before both the High Court and CoA.
He also wanted the record omitted by DIS admitted as part of the DIS appeal. The spy outfit has a pending appeal against Khama after they were denied, not only once but twice, to search State House Number 4 last year.
