The government’s decision to defy a High Court order that it should hand over the controversial P21 million cheque to Daisy Loo is threatening Botswana’s democracy and the rule of law, Advocate Peter Collins argued in Court on Friday.
Lobatse High Court judge, Steven Gaongalelwe, on Friday postponed to a date still to be set the case in which John Hinchliffe and Unoda Mack have filed an urgent application seeking the Directorate of Public Prosecution and the Directorate of Corruption and Economic Crime to be held in contempt of Court in relation to the Court of Appeal judgment passed on July 26.
The judgment by the Court of Appeal awarded the Daisy Loo Company the sum of P21, 434, 434, 46 together with interest at 10 percent for a period from June 24, 2005 and the interest which accrued on the amount since the cheque was deposited in October, 2005.
In his submission, advocate Peter Collins, representing the Hinchliffe and Mack, said that in this case, the applicability of the doctrine of abiding precedent in Botswana in terms of which decisions of the higher Courts are binding to the lower Courts has been thrown into doubt by the order of magistrate Mugoni who has effectively overruled and reversed High court and Court of Appeal decisions, adding that this needs to be dealt with instantly in order to preserve rule and law.
The Deputy Attorney General (Civil), Abraham Keetshabe, argued that no grounds had been brought forward to justify why the case should be heard urgently and not in the normal channels of hearing such cases. He said the applicants will not suffer prejudice if their case is not heard urgently.
Collins argued that contempt of Court orders demand the immediate attention of the courts for the foundation of our democracy is threatened when the respect of rule of law is endangered.
He said an application concerning contempt is inherently urgent as issues of contempt require immediate attention of Courts in order to preserve the authority and dignity of Courts without which they will lose the public confidence and legitimacy they enjoy.
Besides that, he submitted that the reason why the applicants can not obtain redress in the normal way is apparent from the record itself but chiefly because Daisy Loo is being denied protection of law under the country’s constitution which covers every person.
The denial, he further, submitted has taken the form of blatant disobedience of orders of Court of Appeal and the High Court and that the disobedience has left the first applicant unable to explain to the creditors and the members of Daisy Loo why it is that the Court of Appeal order has been defied.
Collins submitted that having waited for two years, it is unconscionable that Daisy Loo should have to wait an instant longer when the Court of Appeal has passed judgment.
On the submission by Keetshabe that it was wrong for him to have cited the Chief Justice , Magistrate and the Attorney General, advocate Collins said that no relief is sought from the Chief Justice, which he said makes the issue a moot point which the Court need not determine as it has no bearing on entitlement to the relief sought.
Parties he submitted are cited where a substantial interest is at stake and that it is submitted that the Chief Justice is correctly joined in the above proceedings as a party with an interest in the outcome. The proceedings, he said, concerned the hierarchical systems of Courts of which he is the head of in Botswana and so has more interests than any other person in Botswana.
The Chief Justice, he said, has not been cited in his personal capacity and that there is no relief sought against him. On the citing of the Magistrate, advocate Collins said that there was nothing wrong with it because there could not have been a way in which the applicants could have approached the Court for the setting aside of the Magistrate’s order without citing him. The Law reports of Botswana, he submitted, have plenty examples of instances where Magistrates have been cited as respondents because their orders were sought to be set aside on review. The judicial immunity conferred by the Magistrates Court Act can never serve to deprive the High Court of its powers to review and set aside illegalities committed by magistrates during the course of proceedings before them and that the section exists to protect magistrates against personal liability for judicial acts.
On the Attorney General, which Keetshabe has submitted was wrong, Collins said that the Attorney general, just like the directorate of Corruption and Economic Crime, was an arm of government and its duties purely governmental in nature. He said that there is no merit in the contention that she ought not to have been cited. On the submission by Collins that the DPP had, after failing to get a hearing, sought from Judge Newman that the Botswana Police Service continued their contemptuous work of disobeying Court orders in disguise of wanting to have the money to use as exhibit in Court.
Collins submitted that there has never been a dispute at any stage that the money belonged to Daisy Loo and on how it came to own the money. He said the Court of Appeal had dealt with this issue and ruled that the money was not obtained fraudulently.
Assistant Attorney General Paper Molomo said that the police had intervened on this matter on their own as they were duty bound to do so.
He said the police had entered the fray after realizing that the DPP could not continue with the matter as they were barred by the Court.
Molomo further submitted that they did so on their own in order to make sure evidence is brought before the Court. He also denied that they controlled the investigations of the police as was submitted by Collins.
Collins said the actions carried out by the DPP and the police were all aimed at separating Daisy Loo from the money which the Court of Appeal had ordered it should be paid. “This breathtaking contempt of both High and Court of Appeal is a sad day for the rule of law in Botswana,” he said.