Advocate Peter Hodes, representing former Debswana Managing Director, Louis Nchindo, his son Garvas, Joe Matome and Jacob Sesinyi, has, in the Lobatse High Court and before Judge Lakhvinder Walia, challenged the Directorate of Public Prosecution’s move to bring a restraining order against his clients, saying it is unconstitutional to do so.
Hodes submitted that such an application should have been brought by the Attorney General instead.
This, he said, was so because the restraining order was civil and that the DPP only deals with criminal matters.
This follows after the DPP launched an application for a restraining order against Plot 55720 in Gaborone, which the DPP alleges is proceeds from crime.
Hodes also submitted that Parliament was not constitutionally permitted to amend the Proceeds of Serious Crime Act (PSCA) in late 2005 to substitute the Attorney General with the Directorate of Public Prosecutions amongst Section 8 and 10.
This, Hodes said, was in conflict with Section 51 of the Constitution as well as Division of Powers between the AG and the DPP.
He further submitted that the restraining order that the DPP is seeking infringes on various rights of the applicants, particularly that of right to silence, right to a fair trial and right to protection under Section 3 of the Constitution.
He further said that the PSCA should be set aside to the extent that it permitted the DPP, instead of the Attorney General, to bring restraining orders against the applicants.
Further, he said, the PSCA was contrary to the rule of law and violated the applicants’ rights to protection under the Constitution.
The application was, however, strongly opposed by Matlhogonolo Phuthego of the DPP who submitted that the DPP was the only organ empowered by law to apply for a restraining and confistication order.
He further submitted that when Parliament divested the AG of prosecutorial powers and conferred them on the DPP, it empowered the DPP with powers to institute restraining and confistication orders.
The DPP lawyer submitted that the preservation of exhibits was essential for effective prosecution.
He further submitted that the applicants had failed to show how Parliament had acted contrary to the Constitution when it made changes to the PSCA and the Constitution.
Further, he said, if it was constitutional prior to the 2005 amendment for the AG to launch restraining and confistication orders as applicants submitted, there is nothing that now makes powers given to the DPP under the PSCA by the same Parliament unconstitutional.
On submission by Hodes that the restraining order application is civil and not criminal and, therefore, should have been brought by the AG and not the DPP, Phutego said that there was nothing in law which barred the DPP, as the prosecuting authority, to institute them as both applications concern exhibits or proceeds from criminal activity.
He also submitted that conferring the powers to institute restraining or confistication orders on the AG will undermine the DPP’s constitutional powers and independence.
Restraining orders, he said, were meant to safeguard exhibits pending finalization of prosecution.
He said that Section 8 of the PSCA was, therefore, not unconstitutional as the applicants’ lawyer had submitted
On the submission that granting the order would infringe on the applicants’ rights to silence in defence of their rights, Phuthego said that they were using the right to silence for the defence of their interests and that it is not really the right to silence that is threatened but that the threat is to their business interest.
The DPP lawyer also submitted that it was not true that the restraining called upon the applicants to disclose their defence.
Judgment on this matter has been reserved.
In a related case, Nchindo and his co-accused on Monday launched a case before Southern Regional Magistrate Lot Moroka seeking an order postponing their criminal case, which was supposed to begin on 13 July, until all his pending civil cases in the High Court have been disposed of.