Kgori Capital (Proprietary) Limited says the Director of Public Prosecutions (DPP) does not have the powers to make civil penalties for forfeiture of property subject to a preservation of property order.
This comes after the DPP made an application for restraining and forfeiture Orders in terms of Sections 39 and 11 of the Proceeds and Instruments of Crime Act. This is in relation to credit amount of P9, 081,382.15 standing to the credit of call account held by Kgori Capital with Stanbic Bank Botswana.
The DPP later made an application for a civil penalty order in terms of the Proceeds and Instruments of Crime Act.
In their filing notice before Lobatse High Court Judge, Justice Godfrey Ntlhomiwa, Kgori Capital stated that DPP does not have the powers to institute this confiscation civil penalty application. It argued that the powers of the DPP, which are primarily and exclusively prosecutorial in nature, are set out in the Constitution of the Republic of Botswana at Section 51 A (3) (a), (b), (c) and (d).
Kgori, through their legal representative Busang Manewe said that the powers do not include the institution of civil penalty order application in terms of the Proceeds and Instruments of Crime Act.
Manewe also indicated that the sections, which seek to clothe the DPP with the power to institute these proceedings, are ultra vires the Constitution to the extent that they seek the powers of the DPP beyond those that have been defined by the Constitution.
“The provisions purporting to confer such powers on the DPP have overstepped the boundaries of Section 51A (3) (a), (b) and (c), and are therefore null and void.
The legislature in so doing was not exercising powers conferred on it by Section 86 of the Constitution, which enjoins the Parliament to make laws that are only consistent with the Constitution. It is therefore our humble submission that Section 11 of the Proceeds and Instruments of Crime Act which seeks to cloth the DPP with the power to launch a civil penalty order application is ultra vires the Constitution and therefore of no force and effect,” argued Manewe.
He said that it is incompetent for Parliament to seek to alter or extent the powers conferred on a public authority by the Constitution, as Parliament would be overstepping its powers.
Meanwhile, hearing of the Kgori Capital application, which was set for arguing on Friday,
Matlhogonolo Phuthego, representing the AG, said they ought to have been joined as parties in the matter.
“We have been served and upon perusing the papers, we realised that the constitutionality of an Act of Parliament is being challenged. When a constitutionality of an Act of Parliament is being questioned, the AG must be joined as a party to the proceedings.
The fact that we have been served does not mean we have been properly joined, as such the papers before this court are not proper,” he argued.
Phuthego also argued that there is no evidence that Manewe has been properly authorised to represent the respondents because the power of attorney has been signed by two individual persons not its board of directors as it is required.
Ernest Mosate of the DPP associated himself with the Phuthego’s words. He stated that service should not be treated as joinder.
“The proceedings are incompetent because the constitutionality validity of an Act of Parliament is called into question. It is proper that the proper citation of the interested parties be filed before this court,” he said.
Responding to the issues raised by the AG and DPP respectively, Manewe disagreed with their assertions and said the rules of the High Court states that no course shall be disturbed by reason of joinder or non-joinder.
He says the AG does not suffer any prejudice if they are not joined because they have been served and have taken further steps by filing their heads of argument.
On the issue of mandate to represent Kgori Capital, Manewe said that they are fully mandated to appear on behalf of their client. He said they have filed power of attorney when DPP brought the restraining application order but are not obliged to do so at every each interlocutory application because the matters deal with the same subject.
“They are deemed as one transaction. We cant be seeking mandate at every tenure,” he argued.
Justice Ntlhomiwa is expected to deliver his ruling on whether the papers before his court are proper or not this week.