Khama application baffles Justice Dambe
Mpho Mokwape | Monday February 21, 2022 06:00
Justice Dambe said it was baffling how Khama’s attorneys would want to pursue an application knowing well it was incompetent. The words from the judge come in the wake of Khama’s recent application in which he approached the CoA seeking an urgent hearing for the Directorate of Intelligence and Security (DIS)’s appeal in relation to his State House No.4 access case. Khama, who has not been able to gain access to his residence because the DIS has filed an appeal against the judgment that gave him access to his house, wanted the appeal to be heard urgently.
The judge did not agree with Khama’s request pointing out that from the onset the application was incompetent because it was not found on any law or practice. “The application 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,” she said.
Dambe further explained that the main reasons why the application should have not been pursued was that the former president was not the applicant in the pending appeal instituted by the DIS and that the application was not accompanied by any proposed notice and grounds of appeal. Thirdly, Dambe said in the absence of proposed notice and grounds of appeal the application was unable to show any reasonable prospects of success, as he has not lodged any appeal. “The application cannot succeed also because the orders sought are an attempt to preempt the directorate’s application for stay of execution and the appeal itself,” she said.
On the costs, the judge said it was disturbing that though the case was a clear case where the attorney for Khama should have realised right at the beginning when the application was conceived that it was a non-starter with no legal basis at all, but he nevertheless persisted with it. She emphasised that the court should show its displeasure and award costs at a higher scale. “I have been addressed by the parties on the issue and I find that from all that I have discussed in this judgement, I should exercise my discretion and award costs on attorney and client scale and I so order.
In the final analysis the order of the court is that the application is stuck out with costs on attorney and client scale,” Dambe ordered. Meanwhile, Khama’s application was motivated after he was unable to access his house despite Justice Godfrey Radijeng of the Gaborone High Court having granted him access last year December. He had challenged the State’s illegal sealing of his house but the State rendered the judgement inactive by filing an appeal to it and also wanting stay of execution.
Khama filed the application seeking the State’s appeal to be heard on expedited basis on grounds that he needed to access his State House as ordered by the court. In his founding affidavit, Khama said the unlawful dispossession of his residence and movables remained in place and was continuing as the State had ignored the spoliation order. He explained that the State seems to be disobeying the order to access to the house on the basis that State House No.4 was considered a crime scene and sealed off as a measure to preserve the purported evidence and that movement in and outside the premises would make the investigators’ job difficult.
Khama also said he moved the application because the State is in no hurry to have their stay application moved on urgency or to have an expedited hearing of appeal, or even so have appropriate directions that could meet the justice of the cause issued. The DIS had opposed the application denying that the unit was defying the court order.