BY THOBO MOTLHOKA
Former Trade minister Sadique Kebonang’s mother, Jeannette Mooketsi, can ride a taxi while her Mercedes Benz is still in possession of the Directorate of Corruption and Economic Crime (DCEC), Justice Monametsi Gaongalelwe has ruled.
Mooketsi on Friday lost with costs an appeal not to have her Mercedes Benz impounded by the DCEC.
She had challenged the stay of a restraint order granted by the High Court against her in relation to her Mercedes-Benz which is a subject matter in the ongoing P250 million National Petroleum Fund (NPF) investigations by the DCEC.
Mooketsi had approached the Court of Appeal (CoA) on urgency seeking stay of a restraint order initially granted by the High Court on ex parte basis and subsequently confirmed by the same Court.
In her founding affidavit Mooketsi had said she stood to suffer great prejudice if she was not allowed the use of the Mercedez Benz which the DCEC had demanded she surrender to them.
“If dispossessed of the only vehicle I have , I will be inconvenienced greatly as I need my own transport to visit doctors locally and in South Africa as I have a heart condition which requires that I go for regular checkups,” Mooketsi argued through her attorney Kgosietsile Ngakaagae .
“I am about to be deprived of my lawfully acquired property, which by law, I am entitled to enjoy use of and protect.” Mooketsi argued that once deprived of her vehicle she would not have access to it and as such she would suffer greater prejudice and irreparable harm than the respondent should the stay of execution not be granted. She said her application for the stay of execution was urgent on the basis that the restraint order granted by the High Court was to take effect immediately.
In his ruling Justice Gaongalelwe said urgency is a matter that needs to be demonstrated by averments which establish that there is a compelling need to have the application heard on urgent basis.
“Urgency cannot be established simply through applicant’s assertion that the matter is urgent without move.” He said the fact that the motor vehicle is to be surrendered to the office of the DCEC immediately cannot render the matter urgent since such is part of the Proceeds and Instruments of Crime Act.
Similarly, Gaongalelwe said, a general assertion of suffering prejudice on account of dispossession is not sufficient since Parliament in its undoubted wisdom enacted the Act well aware that its implementation was bound to cause inconvenience to the person dispossessed of their property. He said also because Mooketsi failed to state in her affidavit the dates of her medical visits to the doctors the Court could not ascertain whether such contemplated visits were to be made soon or on some unascertainable future dates which might be many months. “The principle that an applicant who approaches a Court on urgency must explicitly state those factors which render the matter urgent is not to be treated as mere rhetoric. It is a principle of great substance to be always observed in such matters.”
Gaongalelwe said even if the Mercedez Benz in question is the only one she owns as per her assertion she did not explain why she would not use public transport such as a taxi locally or a hired vehicle or travel by other means such as by air when going to South Africa.
On Mooketsi’s argument regarding the safety of the car Gaongalelwe said the car would be safer in the hands of the DCEC. He said if released back to her the car would be exposed depreciation damage or even theft given it is common for Botswana motor vehicles to be stolen in South Africa.
“ …I am satisfied that in the circumstances of this case any inconvenience that would be suffered by the Applicant (Mooketsi) if stay is refused is far outweighed by the prejudice and irreparable harm likely to be suffered by the Respondent if stay is granted. Accordingly the application for stay of execution of the orders granted by the High Court is dismissed with costs,” the Judge ruled.