Saturday, September 26, 2020

DPP loses court bid to stop developments on Nchindo’s land

The Director of Public Prosecutions (DPP) Ms Leatile Dambe has lost her High Court bid to freeze developments on Louis Nchindo’s controversial plot in Gaborone Block 10.

Lobatse High Court Judge, Justice Walia, has dismissed an application by the DPP for a temporary order restraining Nchindo and his co-accused from any further dealings with the controversial plot “whether it be registration of subdivisions, mortgaging, reticulation, excavation, demarcation, alienation, sale, cession of rights, change of use, or any form of alteration, whether it be actual or constructive”.

Lawyers acting for the Director of Public Prosecutions argued that she had a clear right, which they sought to protect, and that in the event of the properties ultimately reverting to the state, it would have no use for a developed township. And further that “the balance of convenience favours the State as interests of numerous purchasers of portions of lot 55720 would be compromised”.

Dismissing the application, Justice Walia, however, concurred with Nchindo’s lawyers that the Director of public Prosecutions had failed to establish a right, “ even a prima facie one”.

Justice Walia further stated that “the applicant (DPP) falls at the very first hurdle. However, even if it were to be held that she has succeeded in establishing a prima facie right, she would fail on the argument that preservation is necessary for reason of government not wanting developed property.

“The first difficulty with her argument is that I entertain some doubt as to her authority to speak for the Government. Her powers are clearly spelt out in Section 51 A (3) of the Constitution and these do not extend beyond undertaking, continuing and discontinuing criminal proceedings. Without authorization from the Government agency charged with matters of the land, it is in my view, beyond her powers to make decisions thereon.”

Dambe, who was represented by a battery of lawyers from the Directorate of Public Prosecutions, had also cited the Registrar of Deeds and the Town and Country Planning Board as respondents in the case. The two government agencies were represented by the Attorney Generals Chambers.

Initially, the DPP had asked for a restraining order in terms of Section 8 of the Proceeds of Serious Crime Act and this was subject to the Attorney General waiving the DPPs compliance with the thirty-day notice period provided for in the State Proceedings Act. The Attorney General, however, refused to grant the waiver and the DPP settled for an application for a temporary order which they have lost.

Nchindo’s lawyers had, however indicated that they would challenge the constitutionality of the Proceeds of Serious Crime Act, which the DPP was trying to use in their bid to restrain him from continuing with developments at his controversial plot in Gaborone Block 10.

Nchindo was represented by Senior Counsel Hodes with Mr Farlam and Attorney Khupe from Collins Newman & Company.

The DPP, on the other hand, was represented by attorney Phuthego with attorney Nyakaagae, Molomo, Letswalo, Tlhabologang and Balule. The Registrar of Deeds and the Town and Country Planning cited as respondents in the case were represented by attorney Gabegwe from the Attorney Generals Chambers.

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