High Court Judge, Kabelo Lebotse has this week ruled in favour of fashionista, Ineeleng Kavindama in a case in which she was challenging Land Tribunal and Gaborone City Council (GICC) decision to reject her three storey building on the basis that the building encroached on the side and front setbacks.
Kavindama who is the daughter of former Okavango Member of Parliament, Joseph Kavindama got a relief against ‘demolishing or rectifying violating parts of a building at her plot in Gaborone, Block 10. According to court papers, Kavindama submitted a house plan to the Gaborone City Council (GCC), for the construction of a two story building and the plan was approved. Kavindama however proceeded to build instead a three storey building on the plot and later submitted a modified plan to the GCC for consideration for approval. The GCC considered the application on the 3rd of June 2014 and rejected it on the basis that among others, the building encroached on the side and front setbacks.
Kavindama appealed the decision of the council to Land Tribunal, but the latter upheld the decision of the GCC, leading to Kavindama seeking relief from the High Court. Kavindama, through her attorney Unoda Mack of Mack Bahuma Attorneys sought the court to set aside the decision of Land Tribunal; grant application for front set back waiver and also ordered the respondent to pay the cost of suit.
The respondent’s attorney, Gosego Lekgowe of Dinokopila Lekgowe Attorneys wanted to oppose the suit based on section 28 of the Town and Country Planning which he said should be read as only applying to a situation where a person built on land before applying for permission. He contended that in such situation the Physical Planning Committee may grant retrospective permission.
Lekgowe argued that the provision does not entitle a person to build in violation of standards and then apply for waiver, further adding that the Kavindama knew what was required of her but nonetheless proceeded to build in violation of the Development Control Code. Judge Lebotse concurred with Kavindama the the law, section 28 (1) of Town and Country Planning Act No.4 of 2013 gave GCC a large margin of discretion to grant waivers for violations including those emanating from instances where there was no planning permission, arguing that it cannot be read to be prohibitory.
“Where there is a violation or instance of noncompliance, that violation and noncompliance is just but one factor to be taken into account in considering whether or not to grant a waiver,” read the judgement. “It would be wrong to give it more weight than other considerations as seems to have been the case in the instant case.” Lebotse said Development code allow for variations where “the proposed variation will not impair on adequate supply of light and air to the adjacent properties, or endanger the public safety, or substantially diminish or impair property values within the neighbourhood.
Lebotse also quashed the Land Tribunal ruling as he contended that its tone evinces a view that its attitude is that, once there is violation one must suffer the consequences. Judge Lebotse quoted part of the Sharp v Wakefield & other 1891 AC 173 at page 179 where it’s said: “… discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinions… according to law and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.”
The High Court is of the view that the Tribunal applied its mind and failed to properly consider Kavindama’s case. Judge Lebotse remitted the matter back to the Land Tribunal so that “it could properly consider it with the provision of the Act and the Development Code uppermost in its mind would be appropriate.”
The Minister of Justice, Machana Shamukuni says the search to appoint the Ombudsman and other critical heads of department is currently ongoing and the process is expected to be completed before end of the year.
The Ombudsman position fell vacant almost five months ago after Augustine Makgonatsotlhe was removed from the office and appointed as Ambassador to Kuwait.
Two Batswana nationals have been arrested in Zimbabwe for illegal trade in mercury. The duo is being held together with a Zimbabwean national who is being questioned by the Zimbabwe Republic Police (ZRP).
This publication understands that the suspects who are aged between 39 and 56 years hail from Tutume and Selebi-Phikwe. At the time of the arrest, they were found in possession of a pistol, bomb motor and four live rounds. It is understood that the suspects told investigators during interrogation that the deadly substance has a lucrative market in Far East countries, where the demand is high. It is further reported that the suspects claimed that the mercury can be easily accessed in mines through middleman.
The Namibian Lives Matter Movement has weighed in on the looming border dispute between their country and Botswana.
Commenting on reports that the Namibian Parliament has dispatched a committee along the border between the two countries on fact finding mission, the group commended“the National Assembly’s Standing Committee on Foreign Affairs, De-fence and Security that will engage community members living along the Namibia Botswana Border in conducting public hearings into acts of aggression and brutality by Botswana Defence (BDF) Force against innocent and unarmed Namibians.”