Govt fails to stop Nchindo from developing 'hot' plot

MONKAGEDI GAOTLHOBOGWE
Staff Writer | Wednesday January 7, 2009 00:00

 

The Directorate of Public Prosecutions (DPP) failed to get an interim order barring Nchindo and his company, Tourism Development Consortium, from going ahead with developments at their disputed plot, Lot 55720 in Gaborone.

Justice Walia, who heard the case, dismissed the application by the state with costs, including the costs of two counsels.

Delivering his judgment, Justice Walia said he was concerned only with whether or not the applicant (DPP) had satisfied the requirements of temporary relief. He dismissed the application, saying it did not show apprehension of irreparable harm.

'The argument that the government does not require a developed property is entirely unsupported by the papers before me,' Justice Walia said.

'It is also open to doubt if the applicants can speak for the Government on the subject.'The judge said from the papers before him, the balance of convenience clearly lay with the defendants.

'They stand to suffer irreparable financial prejudice if their developments, clearly sanctioned by the Government, are pre-maturely halted,' he continued.

'The DPP, even if she were deemed to be speaking for the government or the numerous unnamed or unascertained purchasers of subdivisions of the property, has not shown the sort of prejudice that would tilt the balance of convenience in her favour.

'All in all, the applicant has failed to discharge the onus of showing that the requirements for interim relief have been met.'

Justice Walia said the applicant had to show that the right, which he seeks to protect by means of interim relief, is clear, or if not clear, is prima facie established, though open to some doubt.

Justice Walia said if the right is only prima facie established, there is a well-founded apprehension of irreparable harm to the applicant if the interim relief is not granted.

The applicant should also show that the balance of convenience follows the granting of interim relief and that the applicant has no other satisfactory remedy. In their arguments, the DPP, represented by attorneys Kgosietsile Ngakaagae, Letsoalo and Phuthego Molomo, said their application was not a common law application but one grounded in the Act, hence ordinary common law standards and onuses do not apply. They also argued that in the event of the properties eventually reverting to the state, the government would have no use for a developed township.

They also argued that the balance of convenience favours the state as interests of numerous purchasers of portions of Lot 55720 would be compromised.

The defendants, represented by SC Hordes and Farlan, argued that the applicants delayed in bringing the application.

They also argued that the DPP has not discharged the onus of even establishing a prima facie right and that the state was proceeding under a misinterpretation of the Act that Section 5 provides for restitution.

However, Justice Walia said he intended to steer clear of the matter of delay and interpretation of Section 5 of the Act as these will be the function of the court hearing the principal application.

'I do not agree that the application is not a common law application,' he said. 'It cannot be anything else.

Its genesis may well be in the Act, but the Act, while providing for procedures for restraining orders, makes no mention whatsoever of interim relief...

'Not only that the application bears the hallmarks of a common law application, the applicant's heads of argument are replete with analysis of the requirements and the tenor of (the) applicant's counsel's argument leaves no doubt that the application is argued as such.' Justice Walia's ruling follows an October 16, 2008 application launched by the DPP for a number of restraining orders in terms of Section 8 of the Proceeds of Serious Crimes Act.

However, the file was thereafter allocated to a new judge, Justice Lesetedi, who recused himself. Justice Walia subsequently took the case over.