Thursday, July 7, 2022

High Court parries Nchindo’s go at constitutional plea

Lobatse High Court judge, Lakhvinder Walia, has dismissed the application brought by Collins and Newman lawyers representing former managing director of Debswana, Louis Nchindo and three others seeking the following orders:
ÔÇó Declaring that section 8 to 11 of Proceeds of Serious Crime Act are inconsistent with the constitution of Botswana and accordingly invalid.

ÔÇó That the powers conferred on the Directorate of Public Prosecution to bring an application for a restraining order in terms of Section 8 of proceeds of Serious Crime Act as well as an application for a confiscation order in terms of Section 3 of the Proceeds of Serious Crime Act and also perform all other functions in relation to such applications as the Proceeds of Serious Crime Act allows are inconsistent with the Constitution and more particularly section 51 A read with section 86 and therefore accordingly invalid.

ÔÇó That the court should accordingly declare that the application for a restraining order which the Directorate of Public Prosecution has brought against the defendants under the above mentioned case infringes the defendants’ constitutional rights and it is in conflict with the constitution and is contrary to the rule of law and accordingly invalid and for costs.
In the alternative to Part A and in the event of the relief sought above being refused they prayed for the following orders:

ÔÇó That the defendants and their legal representatives be allowed to consult with any or all of the following persons for purposes of preparing any answering papers in response to the application for a restraining order brought by DPP: The honourable, Justice David Newman, Nicholas Oppenheimer, Honourable Margaret Nasha, and Pelonomi Venson-Motoi.

ÔÇó That DPP be ordered to pay costs of the suit in respect of this portion of the application including the costs consequent upon employment of attorneys and two instructed attorneys.
On the submission made by the applicants’ lawyers, the court found that that Section 51 A of the constitution specifically prohibits the DPP’s involvement in any civil proceedings and that such proceedings are the sole responsibility of Attorney General.

Also, the restraining order proceedings are civil by nature and therefore the DPP is not the competent authority to bring such proceedings, the judge decided.

”In my view, enjoyment of one’s property or its fruits is a civil right and any application brought to curtail that right is civil and not criminal nature and it therefore follows that an application for a restraining order is a civil mater”.

The next enquiry on this matter, he said, is to determine if Section 51 of the constitution restricts the powers of the DPP regarding whether she may not bring an application for a restraining order although the power of prosecution of the offence which the genesis of the application lies in is vested in her.

Judge Walia said that it is clear that, save for courts martial, the DPP enjoys the unfettered powers “to commence, continue and discontinue criminal prosecution and that in his view Section 51 A does not restrict that power in any way.

As the power to stop any prosecution lies with the DPP, it accords with common sense that an application for stay of proceedings be brought against her.

But that it does not however follow that an application for permanent stay of prosecution made against the Attorney General would for that reason alone be incompetent. The AG as principal legal advisor for the government would naturally be properly cited in any application civil, or criminal brought against the state.

Walia said in his view an application such as this may be brought with either the AG or DPP cited as respondent but that on terms of Order 70 Rule 3 (2) an application brought against DPP must be served on the Attorney General. To the best of his knowledge, that judgement has not been challenged.

Dealing with Section 8 and the claim of infringement on the applicants’ right to silence, their right to fair trial and their right to protection of law under Section 3 of the constitution, he said the section refers to the right to remain silent and at the heart of their argument is the submission that by responding to the application for restraining order they will imperil their rights under Section 10(7) when the matter eventually comes to trial.

The judge said that the applicants’ argument that their rights to remain silent as enshrined in section 10(7) will be infringed if they respond to the allegations in the restraining order application is without merit.

On the alternative sought by the applicants for an order that the applicants and their legal representatives be permitted to consult with Judge David Newman, Nicolas Oppenheimer, Margret Nasha and Pelonomi Venson Moitoi, Walia said he knows of no rule of civil procedure which permits one party to consult with deponents to affidavits of the other to prepare its own affidavits.

If such a course of action is permissible, or even acceptable, the judge has not been referred to any authority to support it. As a result, application for consultation with Nasha and Moitoi fails as it is common cause that they have both deposed to confirmatory affidavits in the founding papers.

As regards Newman and Oppenheimer, Walia said that the situation is different in that the DPP’s argument is simple in that they are, along with Nasha and Moitoi, potential witnesses in the criminal trial and therefore not available to the applicants even for the purpose of the application for a restraining order.

The danger in a situation where the prosecuting authority adopts the attitude of shutting all avenues to an accused person is that a less candid prosecutor may, just by providing a list of all possible or probable witnesses, even those he may not intend calling seek, to shut the door on the accused by denying him access to those persons.

From what is before the judge, there is no certainty that Justice Newman and Oppenheimer will be called as state witnesses at the criminal trial and the is also not convinced by papers before him that the DPP will be prejudiced in any way if the applicants’ legal team, but not applicants themselves or any one of them, were permitted to consult Judge Newman and Oppenheimer purely for the limited purpose of preparing answering papers in the restraining order application, but that certain restraints must be placed on the consultation process.

He then ordered that a single designated member of the applicants’ defence team may consult with Judge Newman and Oppenheimer for the limited purpose of answering papers. Each party is to pay costs for this portion of the application.


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