The Court of Appeal decision to dismiss former President Ian Khama’s expedited appeal application to be allowed access to his house (state house number 4) means the former President is locked out of his official residence.
When delivering judgment, Leatile Dambe dismissed Khama’s application saying: “I must say right at the outset that this application is “incompetent” because it is not founded on any law or practice. To the extent that it is founded on Rule 11(2) .It is “incompetent” and it baffles my mind how this could have escaped the minds of senior attorneys when they decided to litigate on this matter.”
In his application Khama had indicated that Directorate of Intelligence Services (DIS) had cordoned off a “crime scene area until investigation in relations to weapons is completed.
Khama had argued that the decision to padlock and cordon off his home was unlawful and asked the court to make an order to stop DIS from denying him access to the house.
According to court records, on the 19th November 2021, the DIS approached the High Court seeking a search and seizure warrant of State House 4. This followed discovery of weapons which could not be accounted for at Khama’s official residence.
The DIS urgent application was for the search of the premises and viewing of CCTV footage for possible evidence of a crime. The application was opposed by Khama’s lawyers.
In her judgment, Justice Dambe said there was an irredeemable flaw in Khama’s application.
“The current application has been launched by the Applicant who is the Respondent in the case No. CACGB-315-21 in which the respondent (DIS) in the current application launched an appeal against the decision of Radijeng J. in which he made an order of mandament van spolie in favour of the applicant (Khama). The order was in respect of the applicant’s residence State House No. 4 together with other movables and was made on the 24th December 2021. It is the judgment of therein against which the Respondent (DIS) in this Application filed an appeal,” said Dambe.
“Out of fear of being repetitive, I must point out in the interest of certainty that I deliberately went out of my way here, to highlight the decision which has been appealed, because there are so many matters pending before this court between the parties to this application.
The reasons why these applications should not have come before me in the first place is that firstly, the Applicant is not the Appellant in the pending appeal CACGB-315-21 instituted by the respondent. Secondly, the application is not accompanied by any proposed notice and grounds of appeal and in any event the Applicant had none to attach because he is not the appellant in that appeal by the Respondent and there is no cross appeal in the matter.
Dambe said the third reason is that in the absence of proposed notice and grounds of appeal the application is unable to show prima facie, reasonable prospects of success as he has not lodged any appeal. Fourthly the orders sought by the Applicant at paragraph 3 of the notice of motion are an attempt to preempt the respondent’s application for stay of execution and the appeal itself.
Dambe said the application is incompetent and should be struck out for all reasons already discussed in the judgment.