Beleaguered businessman, Bakang Seretse has failed in his attempt to temporarily have full access to his properties, including his house in Gaborone’s Extension 11 suburb that have been placed under control of the State pending finalisation of proceedings for a Civil Forfeiture Order.
Seretse had launched an urgent application seeking stay of restraining order granted pursuant to provisions of Proceeds and Instruments of Crime Act (PICA) by the High Court on November 5, 2018 pending appeal to the Court of Appeal (CoA).
The restraining order placed all motor vehicles, machinery buildings and other property items including his residential house 4890 at Extension 11 attached by the prosecution under control of the Receiver pending institution and finalisation of proceedings for a Civil Forfeiture Order.
Prosecution has said the named properties were bought from proceeds of crime from the National Petroleum Fund (NPF).
However, the application was unsuccessful both on urgency and the fact that the order is interlocutory.When dismissing Seretse’s application for a stay of execution, CoA Justice Monametsi Gaongalelwe stated that it would defeat the whole purpose of the provisions of PICA if considerations of inconvenience, suffering from hardship and or being exposed to indignity no matter how grave, were to be considered as determining factors.
He said the thrust of the applicant’s submission in support of urgency has laid emphasis on inconvenience and hardship suffered by the applicant as a result of dispossession, but it is clear from the provisions of PICA that their implementation involves deprivation of the use and enjoyment of property.
Moreover, he said the preamble to PICA provides that the purpose of the Act is “to deprive persons of property suspected to be proceed or instrument of crime”.
This, he said, translates to saying that the applicants should suffer hardship and grave indignity on account of being dispossessed of their properties.
“If considerations of inconvenience, suffering from hardship and or being exposed to indignity no matter how grave, were to be considered as determining factors, it would defeat the purpose of the law,” he said.
He said in other words, inconvenience, hardship and grave indignity are some of the inevitable components of the Act.
Gaongalelwe further said the applicant failed to demonstrate specific averments that are facts and circumstances which shows that he would not get substantial redress at a hearing in due course.
In relation to the house in Extension 11, Gaongalelwe said the applicant failed to demonstrate fully why he cannot get a rented accommodation either in Gaborone or at any place on the periphery of the city pending outcome of the Civil Forfeiture application or the contemplated application for rescission of the order.
“Mere lip service to requirements of urgency can never suffice. An applicant must make out his or her case in founding affidavit to justify departure from the rules,” he said.
On the issue of whether the restraining order is a final or interlocutory order, he said the restraining order granted by the Judge is susceptible of variation or rescission by the same Court.
“Where an order granted by the Court is susceptible of alteration by the same Court which granted it such an order is interlocutory only,” he said.
He ruled that the applicant ought to have obtained leave to appeal first.
“Accordingly the order I make is that the application for stay of the restraining order pending appeal is struck out and the applicants shall bear costs of the application jointly and severally one paying the others to be absolved,” he added.