Former gov�t employee challenges P1.9m order

| Friday January 22, 2016 15:20

William, who was charged in 2014, says the magistrate court that presided over his case had no jurisdiction to entertain the matter.

He is challenging for a stay of execution pending an order issued against him by Broadhurst Principal Magistrate, Munashe Ndlovu on November 9, 2015 to pay back the money.

According to the documents filed before court, in 2015 the Directorate of Public Prosecutions (DPP) brought civil proceedings against him demanding that he should pay the government a civil penalty in the amount of P1,912,582.00 as assessed by the court.

Through his lawyer, Othusitse Mbeha, he has made an urgent application challenging the magistrate’s decision to preside over such a matter and he wants a stay of execution.

Mbeha argued that the magistrate had no jurisdiction over the matter especially that it sought a final liquid claim running into millions of Pulas, way above the maximum liquid claim of P40,000 that even a regional magistrate can entertain.

He argued that the DPP also had no authority to bring a civil application against his client on behalf of the government as their mandate exclusively deals with institutions of criminal proceedings.

“In terms of the constitution, the attorney general is the only authorised person to bring civil applications on behalf of the government unless if she delegates her constitutional responsibility to another and in this case she did not.”

Mbeha submitted that the DPP gesture amounts to usurping the AG’s constitutional powers.

However, the DPP has argued that the application is not urgent and also that it would effectively erode the principle of finality in litigation, which is the cornerstone of the legal system.

“If the applicant is dissatisfied with a civil penalty order granted by this court, then he cannot make such an application in the same court,” he said.

The DPP said the current proceedings were an instruction from the government to its attorney. Therefore, DPP had every right to bring a civil proceedings, DPP said.

“In most, if not all legal proceedings, either civil or criminal, are a preserve of the client and in the same token issues of law are the purview of the attorney.

Consequently , should the need arise for an affidavit to be disposed relating to the facts of any application, the rightful person to dispose of such would more often than not be the prescribed investigator on behalf of the state for purposes of clarity,” reads the replying affidavits.

The DPP submitted that as such, it had the powers to bring an application to court though it was a civil one, arguing that the application ensued from a criminal activity and was investigated by the DCEC then handed to the DPP.

Judgement was reserved for February 3, 2016.