Stay of execution fails in P1.9M suit
Mpho Mokwape | Friday February 12, 2016 14:05
The retired William was charged with 38 counts of stealing by a person employed in the public service and ordered to pay back the money following an order issued against him by Broadhurst Principal Magistrate, Munashe Ndlovu on November 9, 2015.
His main contention was that his review application that he wished to file before the High Court had good prospects of success in that the magistrate had no jurisdiction to preside over a matter whose claim was P1.9 million.
When dismissing the application this week, Ndlovu said the matter was brought within the criminal sanctions as a criminal case where the same court had jurisdiction to preside over it. He said the Directorate of Public Prosecutions (DPP) was correct in their submission that the court had the jurisdiction, as it was a civil penalty order issued in criminal proceedings.
“In my ruling, such a civil penalty order is similar to and in line with restitutionary or compensatory orders for which a magistrate’s court is not limited, by section 17 of the magistrate’ court act“ he said. On the urgency of the application, Ndlovu said the applicant failed to prove any urgency and that he did not stand to suffer any irreparable harm if the application for stay was dismissed.
He said the core of the matter was the sneaky manner by the applicant to bring into court for consideration, what he had failed to do on November 9, 2015 when he defaulted. “The applicant defaulted and his lawyer couldn’t explain why he defaulted on that day when the order was made,” he said. William has been under investigation from the Directorate on Corruption and Economic Crime (DCEC) and a case was registered against him in 2014 by the Directorate of Public Prosecutions (DPP).
According to the documents filed before court, the DPP had on August 6, 2015 brought civil proceedings against him on a notice of motion for an order that he should pay the government a civil penalty in the amount of P1,912,582 as assessed by the court.
The order also said the amount be deemed to be the value of the benefits against him from serious crime related activities of stealing by a person employed in the public service contrary to sections in the penal code.
Through his lawyer, Othusitse Mbeha, he made the urgent application challenging the magistrate’s decision to preside over such a matter.
Mbeha had argued that the grounds of review was that the magistrate’s court had no jurisdiction to adjudicate upon the DPP’s application especially that it sought a final liquid claim running into millions of pulas, way above the maximum liquid claim of P40,000 that 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.
However the DPP had opposed the application saying the matter was not urgent and also that it would effectively erode the principle of finality in litigation, which was the cornerstone of the legal system. The DPP said the current proceedings were a product of the instruction from the government to its attorney, the DPP to institute legal proceedings against the applicant.