Former president, Ian Khama wants the Directorate of Intelligence and Security (DIS) punished for allegedly lying before a court of law.

Khama, through his attorney Unoda Mack, said on Friday before the Court of Appeal (CoA) that the spy unit should be punished with punitive costs for concealing information before the courts.

According to the former statesman, the DIS had on November 19, 2021 filed an urgent 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.

“The same day that they failed to obtain the said search warrant, they went to Lobatse High Court and re-filed the same matter afresh before Justice Ranier Busang without disclosing that the same application was earlier denied in Gaborone,” reads Khama’s papers. Now Khama’s application states that the DIS had done the same before the CoA and failed to disclose the same information.

The DIS currently has a pending appeal against Khama after they were last year denied to search State House Number 4.

Senior Counsel (SC) Mack argued that the DIS’ conduct of applying to the trial court after failing to obtain similar relief before another judge deserved censure.

“As if that was not enough misconduct, concealing that information from the trial court is the most reprehensible conduct imaginable and it is the most shocking abuse of the process of court, which has wasted judicial resources of the courts,” he said.

Mack further explained that the intelligence agency’s failure to mischaracterise its documents should be considered as costs of the application and the wasted costs of the postponement of the main appeal therefore they needed to be awarded those costs in the main appeal. He said the application was not ill-thought because it was absurd of the DIS’ conduct in failing to disclose the second application in their third application before Justice Busang when two orders currently exist relating essentially to the same application between the same parties with potentially two different legal effects.

Meanwhile, the DIS does not agree with Khama that it has concealed information and abused the court process but instead seeks Khama’s application to be dismissed with costs.

The agency’s attorney, Sifelani Thapelo believes the application the DIS was accused of not disclosing its order did not dispose of any issue in their appeal. “In the instant case, the order as it stands does not dispose of any issue in the main application. It does not venture into the merits of the matter at all. The order simply strikes the matter from the roll. Such an order lacks finality and is not appealable,” he said. Thapelo explained that in conclusion, Khama ought to have appreciated the reason for a strike-out order and realised that his application was without merit and it was just an abuse of the court process.

He said Justice Gabanagae’s order together with the application that was before him was of no relevance to DIS’ current appeal and it would not assist the court in any way in deciding the appeal before the CoA. Judgement is expected on September 2. Ramalepa Attorneys with SC Mack represent Khama and Thapelo Attorneys, through Sifelani Thapelo represents the DIS.