Thursday, February 9, 2023

The government at war with itself – AG Keetshabe

The Attorney General, Abraham Keetshabe says the government is at war with itself and that there is a power struggle between the former Directorate on Corruption and Economic Crime (DCEC) Director General Tymon Katlholo and the Director General of the Directorate of Intelligence and Security Services (DIS) Peter Magosi.

Keetshabe has launched an appeal against a High Court order in favour of Katlholo.

The High Court judgement interdicted DIS from raiding and sealing DCEC offices as well as barring their access to some high-profile files and dockets.

In his appeal, Keitshabe acknowledged that it is obvious that “there is a power war between Respondent (Katlholo) and the Director General of DIS (Peter Magosi,) as well as basic disagreement as to whether the DIS needed, or was entitled to the files, or to even ask the Respondent for the files.”

Keetshabe made it clear that his bone of contention is that Katlholo did not have locus standi (right to bring a law suit) on behalf of the DCEC or on behalf of himself either in his official or personal capacity.

“The main issue for me, in the appeal is the finding on locus standi of the Respondent (Katlholo),” Keetshabe explained.  

He said the case that was launched by Katlholo in his effort to interdict DIS from being granted access to DCEC files; “Raises a novel question, one which, according to the learned judge who decided the application, the legislature did not contemplate a ‘situation where the government will be at war with itself.”

According to Keetshabe’s affidavit, “This is not surprising since a government cannot sue itself, one statutory organ cannot sue another, and the government is indivisible. Be that as it may, this is not a point that has been pronounced upon by the apex court of Botswana, the Court of Appeal.”

He indicated that the Court of Appeal, “Will have occasion to clarify the legal position, in light of the provision of the State Proceedings Act, on what ought to happen where, as here, a public officer wishes, effectively and purportedly, to protect the powers of his office, and weed his turf of alleged interferences by another public office and where these offices are at loggerheads and competing for the representation of the Attorney General.”

Therefore, Keetshabe argued, “for this reason alone, leave to appeal to the Court of Appeal ought to be granted.”

He said the High Court, in seeking to extend locus standi (the right to bring a lawsuit in court) “To Katlholo through interpreting the statute restrictively and finding that there was a common law that qualifies as ‘any other law’ which allows Katlholo, as a public officer to bring the application on behalf of himself and his office, the High Court fell into error.”

Keetshabe also indicated that the High Court also misdirected itself in its judgement by introducing conflict of interest and professional ethics as a basis for statutory interpretation, which they have no part, and having misdirected himself the came to the conclusion that Katlholo “is not disbarred in the context of this case by Section 3 of the State Proceedings Act from bring these proceedings.”

Keetshabe also argued that a reading of the judgement would reveal that the High Court contradicted itself by holding that it did not confer locus standi on  Katlholo saying Katlholo had the locus standi in the circumstances of the case and then in an attempt to provide a solution to the chaos which is likely to flow from its judgement held that litigants in the position of Katlholo will have to first approach the court for a determination as to whether they have the locus standi to bring proceedings against the Attorney General’s office.

Keetshabe said, “in the words of the court, the Respondent (Katlholo sought to preserve evidence pending review or other proceedings against my office.”

He also added that when “one pauses to look at: The nature of evidence allegedly requiring to be safeguard; the nature of the allegedly contemplated proceedings; it becomes clear that the relief granted ex parte does not qualify as Anton Pillar relief.”

Ex parte means, “On or from one side or party only —used of legal proceedings” whereas an Anton Pillar means “an extraordinary form of injunctive relief which compels a defendant to permit a complainant to enter its property to search for and seize evidence and records, including electronic data and equipment.”

Keetshabe argued that, “The alleged evidence is in the form of files requested by the Directorate of Intelligence and Security from the Respondent’s office. These files had been requested for a long time.”

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