Lawyers acting for two Gaborone nightclubs will this week apply for the jailing of the Commissioner of Police for contempt of court. Others to be cited in the application, for defying a court order, include the Station Commander of Gaborone West Police Station and the section leader of a unit that raided the nightclubs on Friday night.
The lawyers are instituting contempt of court proceedings after the police ordered the closure of Grand West and Satchmo's nightclubs last Friday night. The police claimed that the two nightclubs - both in Gaborone West - were operating without licences. The two nightclubs have been closed since Friday on police orders.
The police action comes after the High Court granted an interim order that, among others, stipulates that the police should not harass the nightclubs following their application seeking an interdict against the police.
The Deputy Commissioner of Police, Kenny Kapinga, told Mmegi that there was no intention to defy the court order but there was an issue regarding the licences of the nightclubs.
Kapinga said certain officers of Gaborone West Police Station were given legal advice to conduct the operation but the officers have since Monday been instructed not to close the nightclubs. "We have reviewed the legal advice," said the police chief.
In the main application, the nightclub owners said even though their licences have expired, they have been granted a waiver to continue operating, while awaiting renewal (of the licences); however, the police have continued to harass them even when shown the authorisation letters.
The main case will resume at the High Court on December 12. On Monday, the lawyers acting for the nightclubs brought the Attorney General before court on contempt of court charges.
But High Court Judge Key Dingake dismissed the application on the basis that the Attorney General was not the one who defied the court order.
Assistant Attorney General, Tshepho Motswagole, who represented the Attorney General, argued that the application was frivolous and vexatious. Motswagole said it was not clear who was to be subjected to the contempt of court proceedings. He prayed that the matter be struck off because the Attorney General had been brought before court wrongfully.
Motswagole said there was nothing in the founding affidavit to show why the Attorney General was cited. "It is not an action against
The rules regarding contempt of court proceedings have not been met. "A notice has been made against the Attorney General and not the person who violated the order," he argued.
Motswagole also opposed the urgency of the matter, wondering why the application could not be routed through normal channels. He told the court that they were served with the papers at 8.00 am and expected to make an appearance at 2.00 pm.
But Judge Dingake asked him whether there is no urgency when people entrusted with the law violated court orders. Motswagole conceded that it was a serious matter.
"What we are disputing is the urgency," he said. "The proceedings are irregular and improper. There is a prescribed procedure that has not been met. This is an abuse of court procedure. This is a matter that must not be sanctioned by the court."
The application was not a matter of life and death. The lawyer representing the applicants, Yul Moncho, said the Attorney General was cited as a representative of the government agents who were violating the court order.
Moncho said their application was not fresh but was based on a continuing case; if it was a fresh matter, other formats could have been used. He submitted that contempt of court in itself is an urgent matter and that courts should be very quick to deal with disregards of the orders that they make. "It is a life and death emergency," he countered. "There is an order against agents of the state. Had it been possible, we could have come to court on Sunday."
Dingake dismissed the application on the basis that wrong parties were cited. However, the judge said the applicants could still file a new application.
Moncho said he would serve the police with a notice to appear in court on contempt of court charges this week.