The 12-year legal battle between the owners of Molapo Crossing and government over road access to the shopping complex, heads to the Court of Appeal, the final frontier. Staff Writer MBONGENI MGUNI reports on the latest developments
On Wednesday, Molapo Crossing’s developers officially filed their intention to appeal a July decision of the High Court which dismissed their bid to make government build new “quality” entrances into the shopping mall.
Even though she dismissed the bid, Justice Leatile Dambe of the High Court also ruled in favour of Molapo Crossing for damages arising as a result of business lost by tenants due to the poor entrances into the complex.
The long raging battle between Molapo Crossing and government stems from the design and construction of the expanded Molepolole Road. Completed in 2012, the design of the new road and intersection means that potential customers travelling from the north would have to make a 1.5 kilometre detour to enter Molapo Crossing, either by going to the Rainbow Circle or to the Bonnington Shopping Centre intersection.
Those daring enough would have to execute an illegal U-turn and, as many later found out, the police were particularly vigilant about punishing this bravado.
Motorists exciting to the West were equally in trouble. They would have to filter dangerously into flowing traffic without the benefit of a dedicated passage, before driving another 1.5 kilometres to the Rainbow Circle or taking an even longer detour through Block 6.
The only other option would be to join the daredevils and execute a U-turn towards the Bonnington Shopping Centre intersection.
Molapo Crossing’s developers have argued that the design and construction directly eroded its major competitive edge in a city of fast-rising shopping complexes.
The ace up Molapo Crossing’s sleeve has always been its location, they say, being situated at the intersection of Gaborone’s two busiest roads – the Western ByPass and the Molepolole Road. Rather than the payday crowd, Molapo focused on “convenience shopping” in line with the key location used by many of the capital city’s working population on a daily basis.
Developers say the battle between the two has jeopardised the fate of the 250 or so workers at Molapo Crossing as businesses there have seen their revenues drop by an average 25–30 percent, due mainly to lower traffic of customers. The intersection’s design is also blamed for the high frequency of traffic accidents, many of them causing injury or death.
In March, Dambe ordered the two parties to find a solution outside the courts, but Molapo Crossing’s principal proprietor, Luc Vandecasteele, told Mmegi this week, that the efforts were fruitless.
“We only met twice and during those meetings we made our proposals and the government did not accept any of them. “The first proposal was to re-introduce the circle on a bigger scale, which we had suggested before and were rejected in 2005.
“We have been proven correct that a bigger circle works because during the road’s construction, a bigger circle was used for more than a year and during that period, there were no traffic jams or accidents.
“The other proposal was to allow for a U-turn (by the intersection) which would be the fastest and cheapest way of solving the problem.
“It would cost nothing because all you do is remove the sign. Before we went to court, government set up a commission to investigate this possibility.
“For about two weeks, the police manned the intersection and allowed U-turns. They reported that there was not a single accident or any problem.
“However, our proposal was also turned down.”
Proposals made and rejected, the two parties proceeded with their High Court case before Dambe.
According to her ruling, the judge said the Environmental Impact Assessment Act that Molapo Crossing relied on in its arguments that government was liable for providing equal access to the complex, was not yet applicable at the time of the construction.
Molapo Crossing had contributed to an Environmental Impact Assessment, with the expectation that this would mitigate any negative impact arising from the construction of the new Molepolole Road.
Dambe, however, ruled that at the time of the road’s construction, the relevant minister had not issued regulations required to make the Act applicable.
“The Act came into operation on May 27, 2005. Its purpose was to provide for EIAs to be used in assessing potential effects of planned development activities and to determine mitigation measures for the effect of such activities.
“But the problem remains in the context of this case, that this Act was never operationalised. “My view is that a commitment was made by Roads that an EIA study would be conducted, but there was not statutory duty to do so.”
This week, before filing their leave to appeal, Vandecasteele said the question of sitting down to discuss damages with government was moot. He said until the developers knew the final solution to the problem and when that would come, it would be impossible to ascertain a correct amount of damages.
Molapo’s appeal is expected to focus on the finding that the EIA Act of 2005 was not operationalised at the time of the road’s construction. The developers have placed their hopes in the Court of Appeal.
“I cannot even in my wildest imagination think that government can come in front of your house and take away the access to your garage. “I find it very difficult to believe that that can be correct. We believe the law has provisions that clearly state that if a person does something wrong, they must make it right”.