A businesswoman has approached the High Court to ultimately get a businessman who built a multi-million Pula block of flats without permission to demolish them.
The flats have been erected in a high value area facing Gaborone Sun Hotel.
The Court was told on Monday that the development at Plot 2752 owned by businessman Naz Kader of Faheem Investments (Pty) Ltd has no building permit issued by the Gaborone City Council.
Kader is one of Botswana’s leading businessmen with investment sprawling sectors like steel, telecommunications, game ranching and motor sales.
The court further heard that the temporary permit that was issued and which has long passed its expiry date is a fraud.
Efforts to get the building demolished have been unsuccessful as Kader sat on a notice issued by the Gaborone City Council.
The lawyer acting for the applicant, Kgalalelo Monthe, told Judge Michael Leburu that by building the property, Kader’s company was in breach of the law.
The applicant, Dr. Kathleen O’Connell, contends she is entitled to a relief from the High Court since the Gaborone City Council has not swiftly moved to bring down the building after informing Faheem Investments (Pty) Ltd who are the owners of the property. According to O’Connell, the property overlooks her front yard and is a nuisance and has denied her privacy.
O’Connell is also complaining that her screen wall and her electric fence were damaged during the erection of the contested property.
“People are illegally occupying the premises. Certificate of ownership is disputed. Building permits have been obtained fraudulently. They have built unlawfully and are causing a nuisance. We pray for an interim interdict pending the final decision on the matter,” said Monthe.
“There was a statutory notice from the council. The Gaborone City Council has filed a notice to abide by the decision of the court. Parliament does not legislate for fun. It is trite law that where an administrative body neglects its duty or delays to act a court of law may interfere with the body’s discretion,” argued Kgalalelo Monthe, acting for O’Connell.
Munyaka Makuyana, representing Faheem Investments (Pty) Ltd, argued that the Building Control Regulations are irrational and arbitrary and so they do not cover O’Connell.
“The regulations have to do with developers. She is a mere occupant. What if the owner of the premises does not mind? A lawful occupier can sue for nuisance but not demolition. Court has no authority to annul legislation. We pray that the matter be dismissed,” argued Kader’s lawyer.
Monthe argued that there was no distinction that being an occupant and not owner his client cannot suffer nuisance, adding that O’Connor is the director of a company ÔÇô Legae Investors (Pty) Ltd – which owns the house she is occupying.
Kader’s lawyer said that there is no basis upon which the court can act as the building authority has not complained.
“Why is the authority [GCC] not given a chance to do their work? The plaintiff is confused whether she wants abatement of the nuisance or demolition,” argued Makuyana.
“We want to know why other options available to us do not feature in this case. Why demolition? Demolition is not the only route,” argued Makuyana.
Judge Leburu reserved judgement on the case.