Civil

Procedur
e

NOTES
University of
Botswana

CIVIL PROCEDURE

The judicial system is essentially divided into 2 types of cases: civil and criminal.
Thus a study of civil procedure is basically a study of the procedures that apply in cases that are not
criminal. Civil trials can be used by anyone to enforce, redress or protect their legal rights through
court orders and monetary awards.

Law can be divided into 2:

-procedural law; and
-substantive law.

Procedural law is distinguished from substantive law which creates, defines and regulates the
rights and duties of individuals. Various State Constitutions, statutes and judicial decisions form the
basis for substantive civil law on matters such as contracts, torts and probate. Procedural law
prescribes the methods by which individuals may enforce substantive laws. The basic concern of
procedural law is the fair, orderly, efficient and predictable application of substantive laws.
Procedural guidance can be found in court rules, in statutes and judicial decisions.

Substantive law controls conduct outside the court room while procedural rules control conduct
within the court room. Procedural law determines in what courts lawyers file lawsuits; how they
frame claims, denials and defenses; how the lawsuits progress from commencement to judgment;
and the effect judgments have on subsequent lawsuits.

Civil procedure is the body of law that sets out the rules and standards that courts follow when
adjudicating civil law suits. Civil procedure refers to civil law which encompasses laws pertaining to
business, estates, legal contracts, domestic issues, accidents and generally anything that is not
considered criminal. Civil procedure is an intricate set of rules and regulations that apply to the
filing, pursuance and trial of civil law suits. These rules govern how a law suit may be commenced,
what kind of service of process (if any) is required, the types of pleadings or statement of case,
motions or applications and orders allowed in civil cases, the timing and manner of depositions and
discovery or disclosure, the conduct of trials, the process for judgment, various available remedies
and how the courts and clerks must function.

Under civil procedure, civil laws are designed to protect a person�s civil rights or liberties. In
cases, in which a person�s civil rights have been violated, civil procedure defines whether or not
the person can pursue legal action. Civil procedure also defines to what extent legal action can be
taken. Civil law is a specialized area of law represented by practicing lawyers (litigation).

DISTINCTION BETWEEN CIVIL AND CRIMINAL PROCEDURE

Criminal and civil procedure are different. Many times civil law and criminal law overlap, and the
same case may be tried under both civil procedure and criminal procedure. For example, if a driver
hits a pedestrian while driving thereby killing the person; he or she can be tried in criminal court
for vehicular manslaughter and the victim�s family might under civil procedure be able to file a
civil lawsuit for the same case (negligent driving in tort).

The differences include:

1) Although some other countries legal systems, including the English, allow private
persons to bring a criminal prosecution against another person; prosecutions are nearly
always started by the State in order to punish the defendant. Civil suits on the other hand,
are started by private individuals, companies or organizations for their own benefit.
2) The party bringing a criminal charge (in most cases, the State) is called the Prosecution,
while the party bringing a civil suit is called plaintiff. In both kinds of action, the other party
is known as the defendant.
3) A criminal case against a person called Ms Dube would be described as �The State v.
(versus or against) Dube. But in a civil suit between Ms Dube and Mr Lesedi would be;
�Dube v. Lesedi�, that is if it was initiated by Ms Dube and vice versa.
4) A criminal court may force a convicted defendant to pay a fine as punishment for his
crime and the legal costs of both the prosecution and defense. But the victim of the crime
generally pursues his claim for compensation in a civil, not a criminal action. However a
victim of a crime may incidentally be awarded damages by the court.

SOURCES OF LAW OF CIVIL PROCEDURE IN BOTSWANA

The sources of the Law of civil procedure in Botswana include:
1) Statute � primary source including parliamentary legislation and delegated legislation
in the form of Rules of Court.
�▪ The Botswana Constitution
�▪ The Court of Appeal Act
�▪ The High Court Act
 �▪ The Magistrate Courts Act
�▪ The Customary Court Act
�▪ The Commission of Inquiry Act

A) Ancillary and Incidental whose operation impact on civil procedure:

�▪ Prescription Act
�▪ Evidence in civil proceedings
�▪ State proceedings (civil actions by or against Government or public officers) Act
�▪ Arbitration Act
�▪ Matrimonial Causes Act
�▪ Maintenance Orders Enforcement Act
�▪ Judgment (International Enforcement) Act

B) Rules of Court � The President of the Court of Appeal has the rule making power in
the Court of Appeal (Section 16 Court of Appeal Act) while the Chief Justice has the rule
making power in the High Court � Section 68 Magistrates Court Act and Section 28 High
Court Act.
������� The Rules regulate and prescribe the practice and procedure to be followed in
the ������ respective courts for which each of them is constituted.

2) Judicial Precedents � that is, the judgments of the courts upon procedural questions,
have the effect of creating a substantive legal right. These judgments also constitute an
important source of knowledge of the law of procedure because many statutory provisions
and rules of court are expounded and authoritatively interpreted. Practice directions have
no force of law but provide guidance and assistance in the conduct of litigation and derive
their authority from the inherent jurisdiction of the superior courts to regulate and control
its own process.

3) Practice Books � These provide the courts and practitioners with a source of law of
procedure. They give guidance, assistance and authority to matters of practice and
procedure, such as Herdstein and Van Winsen, �The Civil Procedure of the Supreme Court
of South Africa;� Bullen and Leake and Jacobs, �Precedents on Pleading.� Etc

4) Prescribed Forms � At every stage in civil proceedings, a particular Form is needed to

express what is being done or what has already been done which constitutes a record of the
steps taken or to be taken. These are the Prescribed Forms and prescribed by the Rules of
court and therefore they have the force of law and where applicable must be used with such
variations as the circumstances of the particular matter requires.

JURISDICTION
Botswana being a unitary state, domestic jurisdictional issues would normally deal with the issue of
whether it is the High court, magistrates courts (and to a lesser extent the Customary courts) that
may hear a matter or whether a different court, like the Industrial court, created to determine
special types of litigation (trades dispute) would have competence to hear a matter.
A party has to decide whether the correct court has been chosen in the light of the type of claim
concerned. There are two reasons for first of all determining the court that should exercise
jurisdiction before the institution of proceedings:
First, if a plaintiff files an action in the High Court on a claim within the jurisdiction of the
Magistrate court, even though the High court is bound to entertain proceedings that fall within its
jurisdiction whatever the size of the claim might be, then the plaintiff if successful, will be awarded
costs of the action on the scale applicable to the Magistrates Court.
Secondly, once the correct court has been chosen, jurisdiction is no longer an issue, and provided
that a court has jurisdiction at the commencement of the suit, it will not matter whether the original
ground of jurisdiction has ceased to exist.

DEFINITION OF JURISDICTION

1) In the context of civil procedure, jurisdiction may be defined as �the power or competence of
the court to hear and determine an issue between the parties.� In the case of STYTLER v.
FITSGERAD 1911 AD 295, 346; DE VILLIERS J. stated as follows:
�A court can only be said to have jurisdiction in a matter if it has the power not only of taking
cognizance of the suit, but also giving effect to its judgment.�
Hence the two types of the term �jurisdiction� are:
First- the competence or authority of the court to hear a matter;
Secondly- Notwithstanding the fact that a court is seised with jurisdiction it will not exercise its
jurisdiction unless it is able to give effective judgment that can be enforced before it will hear the
matter (the doctrine of effectiveness).

2) In the Botswana case of MOLLY MPHOENG v. OTENG MPHOENG 1956 High Commission
Territories Law Reports 208; PAUL JA; defined Jurisdiction in reference to the various aspects of
the competence of the court. He stated that jurisdiction of a court may be defined in 4 different
ways:

a) �With reference to the geographical area to be covered.�

This refers to the territorial jurisdiction of the court, that is, the geographical area over which the
court has power.
See SIRDAR GURDYAL SINGH v. RAJAH OF FARIDKOTE (1894)AC 670 (PC) 683-4; � Extra-
territorium jus dicenti impune non paretur�, meaning that when a judge pronounces judgment on
a matter outside his jurisdiction, his judgmentis flouted with impunity.
Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or
temporarily resident within the territory, while they are within it, but doess not follow them after
they have withdrawn from it and when they are living in another independent country. It exists
always as to the land within its territory; and in question of status or succession governed by the
domicile it may exist as to preson domiciled there, or when living were domiciled within the
territory.

b) �With reference to persons or classes of persons who may be parties to

proceedings in the courts.�

�The power which the court has over certain persons (and not others). With the exception of a
number of cases, the general rule is that all persons are free to sue or to be sued in the courts. In
IDAH BEATRICE NGOPE v. JAMES AIDEN O�BRIEN QIUNN (1986) BLR 335, the Botswana
Court of Appeal emphasized this right of direct access to courts by persons in exercise of their right
to redress; be it against the government or a judge.
�The court has jurisdiction over all persons within its jurisdiction except where a Statute provides
otherwise. The National Assembly (Powers and Privileges) Act in Section 3 gives members of
National Assembly immunity from legal proceedings whether criminal or civil for words spoken
before, or written before in report to, the Assembly or to a Committee by reason of any matter r
thing so brought by him by petition, Bill, Motion or otherwise. Members are not liable to arrest; for
any civil debt whilst going to, attending at or returning from a sitting of the Assembly or any
Committee; or within the precincts of the Assembly while the Assembly or a Committee is sitting for
any criminal offence, without the consent of the Speaker � Section 5.
Section 41(1) Botswana Constitution provides for the protection of the President in respect of legal
proceedings both in his official as well as his private capacity.

c) �with reference to classes of matters which the court may deal with�

This is in reference to causes of actions and remedies which the court may deal which the court
may entertain, in other word its power to decide. For instance, in contrast with the High Court
which may try any type of case, there are numerous matters which are expressly excluded from the
Jurisdiction of the Magistrate court. Also Botswana Courts have no jurisdiction to determine title to
immovable property situated outside Botswana�s Territorial limits and they would also not
enforce the revenue laws or entertain an action for the enforcement of a penal law of a foreign state.

d) �with reference to the amount or value of the subject matter�

While the original jurisdiction of the High Court is unlimited in respect of the size of claims that may
be brought there, the Magistrate Court Act and the Customary Court Act, restrict the amounts of the
various claims that may be instituted in those courts. Before examining the original jurisdiction of
the High Court, tow points should be noted. First the jurisdiction of the High Court is not limited to
that conferred by the Constitution or Legislation but also possesses inherent power to enable it to
function as a Superior Court. A magistrate court, on the other hand, being a creature of statute is
limited in its jurisdiction to the power conferred on it by legislation. Except where otherwise
provided for by statute, the high court retains the concurrent jurisdiction with the Magistrate�s
Court. Thus a plaintiff is dominus litis and could choose his remedy and, consequently court. Thus if
a matter is properly before the High Court then it should hear it notwithstanding that a subordinate
court also has jurisdiction subject of course to the High Court making the appropriate orders
regarding costs.

JURISDICTION OF THE HIGH COURT

GENERAL JURISDICTION: S95 (1) of the Constitution
The High Court has a general jurisdiction comprising of its Common law jurisdiction and an
inherent jurisdiction.
The jurisdiction of the High court is not limited to that conferred by the Constitution or legislation
but also possess inherent powers to enable it to function as a superior court. The original
jurisdiction of the High court refers to the court�s jurisdiction when it is acting as a court of first
instance, as set out in the Botswana Constitution and other statutes.
Jurisdiction is said to be �unlimited� if there is no restriction or limitation imposed on it. A
limitation may be for example as to the kind and nature of actions and matters of which the court
has cognizance or as to the area over which the jurisdiction extends or both. The limitation does not
apply to the High Court.
However by statute, the High court has been deprived of original jurisdiction in a number of
matters that require specialized knowledge and have been relegated to special tribunals for
example, the Workers Compensation Commissioner, Income Tax Appeals Committee and the
Industrial Court.

EXCLUSIVE JURISDICTION:
A) The High Court has a special, exclusive jurisdiction in certain constitutional matters: See Section
18 (1) �(3) Botswana Constitution.. Note that any single judge can determine constitutional
issues.
B) In some civil proceedings, the High court also has exclusive jurisdiction specifically provided by
statute for example where dissolution of a marriage or separation from bed and board is sought or
in which the division of the goods of the married persons is involved; or where the validity or
interpretation of a Will or other testamentary document is in question, or where the status of a
person in respect of mental capacity is sought to be effected; or where a decree of perpetual silence
is sought; or where a provisional sentence is sought; the Magistrate courts are prohibited from
dealing with such matters � Section 30 Magistrate courts Act.

SUPERVISORY JURISDICTION:
The supervisory jurisdiction of the High court is set out in Section 95(5) and (6) of the Botswana
Constitution; including jurisdiction to supervise any civil or criminal proceedings before any
subordinate court or any court-martial and the Chief justice is empowered to make rules in respect
of the practice and procedure thereby- See Section 30 Magistrate Courts Act.

Note that this supervisory power is distinct from the High court�s inherent power of review to
restrain illegalities and irregularities in the proceedings of inferior courts and tribunals. This
power, it possesses by virtue of its being a superior court. Under its supervisory powers, the High
court can at any time call for and inspect or direct the inspection of all records of such courts and
may give any direction it considers necessary in the interests of justice � See Section 62
Magistrates Courts Act.

SOME IMPORTANT TERMINOLOGIES AND PRINCIPLES ON JURISDICTION

Originally a Peregrinus meant a foreigner, that is, someone who was not a Roman citizen. An Incola,
was a resident of a particular city or province of the Empire. These jurisdictional terms are of
Roman law origin and are important with regard to certain other procedural matters like security
for costs, attachment founding or confirming jurisdiction and arrest tamquam suspectus defuga.
An Incola is a person who is either domiciled (in the technical sense) or resident within the area of
jurisdiction of a court, provided that the resident is of some permanent or settled nature.
A Peregrinus is a person who is neither domiciled nor resident within a court�s jurisdiction.

In Botswana, there is only one court which is empowered by the Constitution to exercise
countrywide jurisdiction. An incola would therefore be a person who is either domiciled (in the
technical sense) or resident in Botswana while a peregrinus would be one who is neither domiciled
nor resident in Botswana.
Generally the Roman- Dutch rules of jurisdiction provide that there must be some link (nexus)
between the court�s jurisdictional area and the defendant or the facts from which the dispute
arose. Theses links are called �Jurisdictional Connecting Factors� or �Rationes Jurisdictionis�.
Some of the links accepted by the courts include:
■ Domicile or residence (ratione domicilli) of the defendant;
■ Commission of a delict (ratione delicti Commissi);
 ■ Conclusion or breach of a contract (ratione Contractus).

Note that �ratione delicti Commissi� and �ratione contractus� are collectively termed
�ratione rei gestae�. Sometimes the links include submission and the location of property when
such property is the subject of a dispute (ratione rei sitae).

THE DOCTRINE OF EFFECTIVENESS

This is one of the common law principles upon which the exercise of jurisdiction is based. The
rationale is that a court will not exercise jurisdiction unless it is able to give an effective judgment,
that is,, unless compliance with its judgment can be expected. This could also mean that the court
can not give judgment in vain.
In STEYTLER NO V. FITZGERALD, 1911 AD 295, 346, DE VILLIERS J. stated:
�A court can only be said to have jurisdiction in a matter if it has the power not only of taking
cognizance of the suit but also giving effect to its judgment.�

The STEYTLER CASE advanced 2 propositions:

First that a court may exercise jurisdiction only if it is competent to adjudicate the matter before it,
and
Secondly, even if the court is seised with jurisdiction, it will not exercise it unless it is able to give
effect to its judgment or orders.
See SILVERSTONE (PTY) LTD, SAPRO (PTY) LTD V. LOBATSE CLAYWORKS (PTY) LTD (1996)
BLR

POLLAK on Jurisdiction, stated that the court may have power over the person of the defendant
and yet not have the power to give an effective judgment because the order sought by the plaintiff is
one to be performed outside the country. Conversely, the court may have no power over the person
of the defendant and yet have power to give an effective judgment because the order sought is to be
performed within the area of the court�s jurisdiction.

INHERENT JURISDICTION

The concept of inherent jurisdiction has been recognized in English law since ancient times where
such powers according to JACOB �developed in two paths, namely by ay of punishment for
contempt of court and of its process and by way of regulating practice of the court and preventing
the abuse of its process.�
See JACOB I. H., �THE REFORM OF CIVIL PROCEDURAL LAW AND OTHER ESSAYS IN CIVIL
PROCEDURE� (LONDON, SWEET & MAXWELL 1982)223

The inherent jurisdiction of the English superior courts has been echoed in many decisions and the
statutes in the commonwealth. In Kenya, for example, the Civil Procedure Act in Section
3A(previously Section 97) provides:
�Nothing in this Act shall limit or otherwise affect the power of the court to make such orders as
may be necessary for the ends of justice or to prevent abuse of the process of court.�

Note that in Botswana, the inherent jurisdiction of the court has been described as its unwritten
power as a �superior court� which enables it to function as a superior court and see that justice
is done.
The Botswana Constitution in its Section 95(3) in establishing the High Court provides inter alia
that:
95(3) �The High Court shall be a superior court of record and save as otherwise provided by
parliament, shall have all the powers of such court.�

The High court is a �superior court� in the sense that it �is not subject to supervisory control by
any other court except by the due process of appeal and it exercises the full plenitude of the judicial
power in matters concerning the general administration of justice within its area.
In other words, no matter is deemed to be beyond the jurisdiction of a superior court unless it is
expressly excluded while nothing is within the jurisdiction of an inferior court unless it is expressly
shown that it is included.

TAITZ, in analyzing the inherent jurisdiction of the Supreme court of South Africa classifies the
subject matter of the court�s inherent jurisdiction into 4 main headings viz:
■ to regulate its proceedings and prevent abuse of its process;
■ protecting its dignity, repute and authority and compelling the observance of its lawful order;
■ controlling and supervising its officers;
Restraining irregularities in the proceedings of administrative (and like) authorities (judicial
review of administrative (and like) action.
�See TAITZ, THE INHERENT JURISDICTION OF THE SUPREME COURT. (CAPETOWN: JUTA CO,
1985)

Jurisdiction Cases
Pieter Lodewickus Bezuidenhout v Dominion Earthworks (Pty) Ltd and Government of Botswana
1964-7 BLR 233

Civil Application
On the return day of a rule nisi in which the respondents were called upon to show cause why an interdict
should not be granted and why certain equipment belonging to the first respondent should not be attached �

HELD
(i) The second respondent should not have been made a party to the suit in view of the provisions of section
9 of Law 24 of 1965.
(ii) Although the first respondent carried on business in Botswana, its headquarters were in South Africa. It
had no branch office in���� Botswana.
(iii) In the circumstances, the first respondent must be regarded as a peregrinus (foreigner)

�€€€€€€€€ This case highlights the territorial boundaries the courts of Botswana
are restricted to. Even though at the time the company referred to carried out some
operations in Botswana, the fact that it was South African �corporation meant no
legal process could be served upon it except by edictal citation.

Gaam Associates (Pty) Ltd and Another v Ogbugo [1995] BLR 683
The Applicants had obtained a rule nisi against the respondent calling upon him to show cause why he should
not be ordered to hand over certain goods to the first applicant .The notice of motion had been sent to
Mafikeng South Africa, where it had been handed by an attorney to the respondent. � The respondent had
been resident in Botswana for a period and held a residence permit which was valid up until 31 October
1998. No leave had been sought to serve the documents on the respondent in South Africa. The goods sought
to be returned to the applicants were in South Africa. The respondent opposed the confirmation of the rule
nisi.

Held:
1) The possession of Botswana residence permit did not stop a person from taking a permanent residence
in another country and on the affidavits the respondent was a resident of South Africa at the time the
application was filed.
2) As the respondent was beyond the jurisdiction of the court, copies of the application and rule nisi could
not have been served in him without leave of the court and no such leave had been sought or granted
3) The principle of effectiveness was the basis of Jurisdiction and as the respondent was a resident of South
Africa and the goods were in that country, any judgement or order in favour of the applicants could not be
effectively enforced. The court accordingly lacked jurisdiction.

�€€€€€€€€ Another cases emphasising that the courts do not have jurisdiction outside the
territorial borders of Botswana and giving the rationale of this limitation by stating in the
holding that the doctrine of effectiveness will not be satisfied.

In Re Estate Swart 1974(1) BLR 88

The guardian of a minor applied for the leave of the Court to enable her to sell, on behalf of the minor,
immovable property of the minor situate in Botswana. The minor and her guardian were domiciled in the
Republic of South Africa.

Held:
That the South African Court, being the Court of the minor's domicile, was the proper Court to exercise
jurisdiction.

�€€€€€€€€ In this case, because the minor in question was as the time domiciled
elsewhere, the court could not exercise jurisdiction.

Mzangezulu and Another v Mokgetse [ 1997] BLR 171

The applicants applied in the High Court for an order directing the respondent to pay maintenance in the sum
of P400.00 per month as maintenance for his illegitimate minor child. The respondent contended in limine
that the application was at the same time in another proceeding before the subordinate court where it ought
to be in terms of the Affiliation Proceedings Act (Cap. 28:02).
Held:
The Affiliation Proceedings Act did not deprive the High Court of any of its jurisdiction: the court had the
jurisdiction to hear the matter but what the applicant really sought was protection from discrimination
(against illegitimate children, as the Affiliation Proceedings Act provided for a maximum of P40 per month
by way of maintenance for illegitimate children) under section 15 of the Constitution. While she was entitled
to resort to the law as she had done she had first to comply with the provisions of Order 70 rule 3(2) of the
High Court Rules which provided that a copy of the notice of motion had to be delivered to the Attorney-
General. Matter stood down for six weeks to allow the Attorney-General to intervene. Moremi v. Mesotlho
[1997] B.L.R. 7, referred.
�€€€€€€€€ This case highlights the supervisory power of the High Court as
 set out in Section 95(5) of the constitution. The powers of the High Court are
extremely wide but the statutory power of �supervision� seems to be
separate and distinct from the court�s �inherent power� of review to
restrain illegalities and irregularities in the proceedings of inferior courts and
tribunals, which it possesses by virtue of being a superior court and which is
derived neither from common law nor from legislation. Under supervisory
powers, the court can, at any time call for and inspect or direct the inspection
of all records of such courts and may give any direction it considers
necessary in the interests of justice. This has been specifically provided for
under S62 of the Magistrates Courts Act.
Du Preeze v Phillip King 1963 (1) SA 801
�submission to jurisdiction should be clearly made and if it was being inferred it had to be from factors that
could only indicate that submission was intended and there should be no room for any other inference.�
The general rule requiring attachment is not applicable where the court already has jurisdiction by reason of
a submission thereto by a peregrinus. In other words, where there is a submission to jurisdiction before the
application to attach is made an attachment is unnecessary and there is no good reason for an attachment in
such circumstances being permissible.
JHB Consolidated Investment Co. v Jo�burg municipality 1903 TS 111
This case defines review of proceedings originating in a magistrate�s court as: the process by which, apart
from appeal, the proceedings of inferior courts of justice, both civil and criminal, are brought before this court
(i.e. the reviewing superior court) in respect of grave irregularities or illegalities occurring during the course
of such proceedings.
S v Moyo 1988 BLR 113
It is provided by the Constitution, s. 95 (1) and (5) as follows:
"(1) There shall be for Botswana a High Court which shall have unlimited original jurisdiction to hear and
determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be
conferred on it by this Constitution or any other law . . .

(5) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any
subordinate court or any court-martial and may make such orders, issue such writs and give such directions
as it may consider appropriate � for the purpose of ensuring that justice is duly administered by any such
court."

The three respondents (non-citizens of Botswana) were granted conditional bail by a magistrate on charges
of defrauding the Standard Chartered Bank of a total sum of P29 332.22 by means of the use of false
travellers Gcheque coupons. Three other suspects alleged to be involved in the alleged commission of the
offence had absconded and had escaped from the country. The State applied to the High Court as a matter of
urgency for an order to review and set aside the decision of the magistrate in granting the conditional bail
and to determine the issue of bail justly and properly. Counsel for the respondents raised objections to the
application on the grounds inter alia: (a) that the decision of a magistrate to grant bail was in effect an
administrative matter and that by virtue of the provisions of section 95 (1) and (5) of the Constitution, the
High Court had no jurisdiction to review the decision, and (b) that it would be wrong for the High Court to
consider the merits of the bail issue as that would be interfering in the discretion of the magistrate in that the
High Court was restricted in its powers of review as to whether or not there had been any irregularity in the
proceedings in the court a quo concerning the issue of bail.

Held: (1) the High Court has power to deal with the bail issue on review because it has inherent powers to
review any matter which arises in proceedings in a subordinate court. Inherent powers mean those powers
reasonably necessary for the administration of justice and are powers over and beyond those explicitly
granted in the Constitution. Sello v. The State 1976-78 B.L.R. 22 and Johannesburg Consolidated Investment
Co. v. Johannesburg Town Council 1903 T.S. 111 considered.
Obiter: Although bail proceedings have been regarded as administrative proceedings in South Africa,
they are always connected with criminal or civil proceedings and could be regarded as euisdem
generis with such proceedings as outlined in section 95 (5) of the Constitution. Pillay v. Regional
Magistrate, Pretoria, and Another 1977 (1) S.A. 533, considered.
(2) The grounds for review of a decision of a subordinate court by the High Court are the following: (a)
absence of jurisdiction on the part of the subordinate court; (b) interest in the cause, bias, malice or
corruption on the C part of the presiding judicial officer; (c) gross irregularity in the proceedings; and (d) the
admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence. In
the instant case there was no irregularity or illegality on the record of the proceedings. Pillay v. Regional
Magistrate, Pretoria, and Another 1977 (1) S.A. 533 considered.

(3) Although there was no irregularity or illegality in the proceedings in the court a quo, the decision of the
magistrate in granting bail to any of the three respondents was manifestly wrong. The offences charged were
serious and a large sum of about P30 000 had allegedly been obtained by false pretences. There must be a
serious temptation for any one in the respondents" shoes to skip his bail and avoid trial if he could. The other
three suspects had already departed from the country. Botswana is landlocked and large. It would be easy for
any would be absconder to cross its borders into another country. On the evidence, the documents and
material allegedly recovered by the police and the alleged crime committed demonstrated all too clearly the
competency of the three respondents to forge further documents in order to effect their escape from this
country. There was a substantial probability that each of the respondents would not face his trial if granted
bail.

�€€€€€€€€ This case stresses the inherent Jurisdiction of the High Court.
The inherent jurisdiction of the court has been described as its unwritten
power as a �superior court� which enables it to function as a superior court
and see justice done. The Botswana independence constitution in
establishing the High Court provides inter alia, that: �S95 (3) The High Court
shall be a superior court of record and save as otherwise provided by
parliament, shall have all the powers of such court (emphasis added).
The High Court is a �superior� court in the sense that it �is not subject to
supervisory control by any other court except by due process of appeal and it
exercises the full plentitude of the judicial power in matters concerning the
general administration of justice within its area� In other words no matter is
deemed to be beyond the jurisdiction of a superior court unless it is expressly
excluded while nothing is within the jurisdiction of an inferior court unless it is
expressly shown that it is included.

S v Jacobs [1974] 2 BLR 48

The Accused was convicted of rape, but the actual act of intercourse took place in South Africa after the
complainant, whom the Accused had assaulted in Botswana, had chased her through the border fence into
South Africa.

Held:
(1) At common law, if a crime is committed partly in one jurisdiction and partly in another, the place
where the crime is completed is regarded as the place where the crime is committed.
(2) Section 7 of the Penal Code does not alter the common law on the question of extra- territoriality.
(3) The Court therefore had no jurisdiction to try the Accused.

Attorney General v Bikiri Phute [ 1987 ]� BLR 460

The accused was charged in a magistrate's court in the Molepolole Magisterial District with stealing cattle
allegedly stolen in the Kgatleng Magisterial District but were recovered in the Molepolole Magisterial District.
The accused pleaded not guilty to the charge and his counsel raised a preliminary point of law that the court
had no jurisdiction to try the case because by virtue of the provisions of sections 60 and 61 of the
Magistrates' Courts Act and section 5 of the Criminal Procedure and Evidence Act the offence had not been
committed within its locality. The magistrate upheld the defence counsel's submission and discharged the
accused.
On an application by the State to set aside the ruling of the magistrate,

Held, allowing the application: the magistrate erred in law and misdirected himself when he held that his
court's jurisdiction was restricted to the locality of the court because sections 60 and 61 of the Magistrates'
Courts Act dealt with jurisdiction in respect of classes of offences but were silent as to locality. Moreover
section 5 of the Criminal Procedure and Evidence Act provided that the magistrates' courts shall have
jurisdiction in all cases of offences committed within their several jurisdictions and that there was no
provision excluding a hearing of a case committed outside the limits of their locality.

�€€€€€€€€ This case helps one appreciate the four distinct types of jurisdictions as
set out in the cases Stytler v Fitzgerald 1911 AD 295, 346 and Molly Mphoeng v
Oteng Mphoeng 1956 HCTLR 109. It highlights that although the Magistrate courts
have limitations in their jurisdiction with reference to classes of matter, amount or
value of the subject matter and persons or classes of matters, they aren�t limited
geographically. So the magistrate courts can therefore decide upon any matters
that have occurred within the boundaries of Botswana.
Form of Civil Proceedings
Introduction
The High Court rules provide two basic forms of procedure by which the court may be approached,
namely, by way of application procedure (also known as motion procedure) or by way of a writ of
summons (also known as procedure by way of a trial action). There are also two additional forms of
procedure which may, in certain cases, be used, namely, provisional sentence proceedings and in
special cases for adjudication on questions of law.

There are no explicit provisions in the rules as to circumstances under which application or action
proceedings would be appropriate. However the decision as to which of these forms of procedure is
to be used is important, because if the wrong form of procedure is used, the court may either refuse
to hear� the matter or alternatively hear the matter but make an adverse order as to costs. a
further reason for adopting the correct procedure is because certain advantages attach to the
different forms of proceedings, for example, motion proceedings afford speedier and inexpensive
means of approaching the court.

Proceedings by way of application

In application proceedings, the matter commences with the service of a notice of motion supported
by an affidavit as to the facts upon which the applicant relies for relief. As affidavit is basically a
written, sworn statement of evidence from an individual. The facts which are relied upon by the
opposite party are also presented to court by way of an answering affidavit, to which the applicant
may file a replying affidavit. Subsequently the matter would then be argued on the basis of the facts
deponed in the affidavits. In exceptional circumstances the matter may be referred to the hearing of
oral evidence. The application is set out in terms of Form 7 in the first schedule of the rules of the
High Court. The parties are designated as �applicant� and �respondent�. Further, apart from
applications which commence proceedings until final determination of the matter, there may be
other applications which are part of another proceeding which are called interlocutory applications.

Forms of Application Proceedings

There are different kinds of applications namely,
a) Ex parte applications
b) Applications on notice
 c) Interlocutory applications
d) Urgent applications
e) Review applications under Order 61

Proceedings by way of Action

The trial action is started by the issue of writ of summons. The writ is the first act of the various
processes taken in the conduct of a suit prior to the final stage at which no more exchange of
documents formulating the case may take place (when litus contestation takes place. The
characteristics of such proceedings are that first the parties exchange pleadings, secondly witnesses
are called to give viva voce evidence at the trial and thirdly various default procedures are available
between the time of service and the last opportunity for compliance with the process.
The writ is a court process namely, a formal document issued under the authority of the Chief
Justice in which the defendant is commanded to �enter appearance� i.e. to place himself on the
court record, to defend the action within a prescribed time (the dies induciae) and to answer the
plaintiff�s claim and in which he is clearly and fully warned of the consequences of failure to do so,
namely, that the plaintiff will be entitled to enter default judgement against the defendant. When we
talk of the �process of the court� we mean �something which proceeds from the court; some
step in the legal proceedings which can only be taken with the aid of the court or one of its
officers.� This would include inter alia, subpoenas, notices etc. This concept is important when
distinguishing between pleadings and processes while dealing with different aspects of procedure.
Upon completion of the writ, which is prepared by the plaintiff or an attorney, the plaintiff must
present it with necessary copies to the relevant court registry and if it is in order the court clerk will
duly seal it with the seal of the court and it will then be treated as issued by the Registrar as of that
date. The date of issue is important for it may determine whether the suit is begun within the
relevant period of limitation in respect of the claim made or in determining the date on which the
writ lapses.

Cases
BOTSWANA UNIFIED LOCAL GOVERNMENT SERVICE ASSOCIATION v. THE ATTORNEY-GENERAL 1998
BLR 495 (HC)

The defendant raised a special plea in limine to the plaintiff's action to the effect that the plaintiff brought its
action by way of a writ of summons when it should have been brought by notice of motion for judicial review
under Order 61 of the Rules of the High Court. As a result the defendant prayed for dismissal of the action.
The plaintiff on the other hand maintained the correctness of the procedure it had adopted in that:
(a) The course it had adopted was specifically provided for in Order 6, rule 1;
(b) That since there were material disputes of fact apparent on the pleadings and that factor would not allow
for the matter to be brought on review;
(c) That Order 61 did not prescribe that review procedure was not the only course of action possible; and
(d) That where declaratory orders or directions were being sought the ordinary action procedure would be
the correct route to follow.

Held, dismissing the special plea:

(1) rules of court were not "cast in stone", and non-compliance with any particular provision would not
render the proceedings void. Apart from regulating procedures, the rules were designed to benefit the
parties, the courts and the interests of justice, and they could and should be varied or modified when
circumstances demand that such a course should follow.
(2) Where it was desired actually or by necessary implication, to have the court correct or set aside the
proceedings or decisions of one or more of the various bodies or individuals referred to in Order 61, rule 1,
then the proceedings should normally be commenced by way of that order. Despite this requirement,
however, the failure to comply with that rule, or the fact that some other form of procedure had been adopted
to initiate proceedings would not necessarily vitiate the proceedings brought. Each case would depend on its
own facts.

● There are no explicit provisions in the rules as to circumstances under which

application or action proceedings would be appropriate. However the decision
as to which of these forms of procedure is to be used us important, because if
the wrong form of procedure is used, the court may either refuse to hear the
matter or alternatively hear the matter but make an adverse order as to costs.
For instance in Pressman Services (Pty) Ltd v Schuttler and another 1990 411
(C) 420 A, the applicant was ordered to pay wasted costs occasioned by
incorrect choice of proceedings.
● A further reason for adopting the correct procedure is because certain
advantages attach to the different forms of proceedings, for example, motion
proceedings afford speedier and inexpensive means of approaching the court.
● See even though it is highly beneficial to select the most appropriate form of
procedure, the court will not cancel or invalidate proceedings brought forth by
any party.

Nyoni v The Chairman, Air Botswana Disciplinary Committee and Another [1999] 2 BLR 15

The applicant, an employee of Air Botswana (the respondent) at the material time, was charged with and
convicted of abuse of office by the respondent's disciplinary committee. The penalty was a final written
warning to remain in force for 12 months. Aggrieved by the decision, the applicant wrote to the respondent
stating that she did not intend to appeal due to her perception that the person who was to have chaired the
appeal hearing had already decided that she was guilty. The applicant thus resigned from the respondent, but
demanded of it an unequivocal apology and an acknowledgment that the charges on which she was convicted
were baseless. The respondent declined to do so, stating that in its view the disciplinary hearing was justified.
The applicant moved an application seeking an order that the decision of the disciplinary committee be set
aside and nullified. The respondent objected to the application in limine arguing that (i) the orders sought
were of academic interest only, the applicant having resigned; (ii) no proper grounds for review had been
raised as this was a private law matter; and, (iii) Order 61 would not be available to the applicant as it was
concerned with public law functions only.
Held:
(1) if the applicant was successful, the order of the court would be to set aside or vary the committee's
decision. That order would be enforceable in the sense that the results of the hearing before the tribunal
would have been overturned, and legal rights and obligations would flow from that fact. That would not
amount to an order of academic interest only or a ruling on abstract or hypothetical issues. Furthermore, the
doctrine of effectiveness would be satisfied by the court order and the decree of the court could operate and
not amount to a nullity. Brooks v. Maquassi Halls Ltd. 1914(1) C.P.D. 371 at p. 376; Adbro Investments Co.
Ltd. v. Minister of the Interior and Others 1961 (3) S.A. 283 (T) at p. 295 A - C, cited.
(2) The fact that the applicant resigned from the respondent's service could not affect her right to proceed as
she had done. She was aggrieved by the conduct and decision of the respondent's disciplinary committee, and
wished to have those proceedings judicially reviewed as she had been prejudiced by them. Her resignation,
brought about by her sense of grievance, would not affect her right to seek redress in that respect.
(3) Whereas it was obviously desirable - and probably necessary - for a prospective litigant to follow
the correct or most appropriate avenues available to him in placing a review matter before the court,
his failure to do so in the best possible procedural sense would not necessarily render his action a
nullity and would not necessarily amount to an abuse of the process of the courts.(4) The High Court
has an inherent or common law right to review the proceedings conducted by administrative or
statutory bodies and of certain domestic tribunals, and the creation of procedural machinery - such as
Order 61 - does not curtail this right. This rule is designed to aid the litigant in pursuing his legal
remedies in this regard, and not to shackle him. By the same token when proceedings are brought
under Order 61 when it might have been preferable to have initiated the action in another possible
way, the same considerations apply. S. v. Baleka and Others 1986 (1) S.A. 361 (T) at p. 397 applied. Gelcon
Investments (Pty.) Ltd. v. Adair Properties (Pvt.) Ltd. 1969 (3) S.A. 142 (R) at p. 144 D - F, cited. (5) The
respondent in the instant case was and is a public body. National Development Bank v. Thothe [1994]
B.L.R. 98, C.A. at p. 106A applied.

�€€€€€€€ The third holding emphasises the fact that one will not be
penalised for their failure to bring an action in what would be considered the
best way.
�€€€€€€€ The final holding takes into consideration that the respondent is a
public body thus the remedies available to the employee varied from other
situations. In National Development Bank v. Thothe [1994] B.L.R. 98, C.A the
court stated that: �what should be noted is that in a pure master and
servant situation the court will normally not order a reinstatement of the
servant without the consent of the master, for such a dismissal effectively
brings such an employment to an end and the servant will be awarded
adequate monetary and other compensation. However, in a case of wrongful
dismissal from the employment of a public authority, the court may declare
such a dismissal a nullity and order a reinstatement.

Plascon � Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd (1984) 3 SA 623, 634
In the superior courts the general rule of practice is that, where the material facts are in dispute, a final order
will be granted only on notice of motion if the facts as stated by the respondent together with the admitted
facts in the applicant�s affidavits justify such an order. Where it is clear that facts, though not normally
admitted, cannot be denied, they must be regarded as admitted. In certain circumstances, however, the denial
by the respondent of a fact alleged by the applicant may not be such as to raise a real, or genuine or bona fide
dispute of fact. If in such a case the court is satisfied as to the inherent credibility of the applicant �s factual
averment, it may proceed on the basis of the correctness thereof and include this fact among those which it
determines whether the applicant is entitled to the final relief which he seeks.

Room Hire Co. (Pty) Ltd VJeppe Street Mansions 1949 (3) SA 1155, 1162

Facts:
There was lease agreement between the parties for residential purposes. The lessee ended up using the place
as a brothel. The owner sought to make the agreement a nullity on the grounds of the illegal use of the
premises. The owner proceeded by way of application.
This is an important case in South African law, heard in the Transvaal Provincial Division on April 28 and 29,
1949, with judgment on July 15. Murray AJP, Ramsbottom J and Blackwell J presided. Its significance lies in
the area of civil procedure, with its determination that the court in application proceedings, where a material
fact arises which cannot be resolved by viva voce evidence, may direct the parties to trial or dismiss the
application with costs.
The court reiterated that, except in interlocutory matters, it is undesirable to attempt to settle disputes of fact
solely on probabilities disclosed in contradictory affidavits. Where no real dispute of fact exists, there is no
reason for the incurring of the delay and expense involved in a trial action: Motion proceedings are generally
recognised as permissible.
Where a dispute of fact is shown to exist, however, the court has a discretion as to the future course of the
proceedings: If the dispute of fact cannot properly be determined by viva voce evidence under Rule 9�the
calling of evidence under this Rule rests with the court or judge, regardless of whether the parties request
it�the parties may be sent to trial in the ordinary way (either on the affidavits as constituting the pleadings
or with a direction that pleadings be filed), or the application may be dismissed with costs.

Abdool v Forchu [ 2000] 2 BLR 226

The applicant sought orders for the return of a motor vehicle in the possession of the respondent, for a
declaration of nullity in respect of a document which he had signed acknowledging receipt of P55,000 from
the respondent in respect of the sale of the same motor vehicle; and for a declaration of nullity in respect of a
further acknowledgment of debt for P1 20,000.00 which he had signed in favour of the respondent. The
applicant alleged that he signed the documents in question in the course of an interlude in the temple of the
respondent during which the applicant was under the respondent's magic spell or demonic power. The
allegations of the applicant as to the circumstances in which he came to sign the documents were denied by
the respondent who was supported in his denial by independent evidence of a legal practitioner who said
that he witnessed the applicant's signature of the documents at his office. Counsel for the applicant conceded
at the hearing of the application that there was a fundamental dispute on the papers as to the circumstances
in which the documents in question were signed, but submitted that that was a dispute of fact which could
not reasonably have been foreseen and applied for the matter to be referred to trial with costs being in the
cause.

Held: (1) where, at the hearing of application proceedings, a dispute of fact arises on the affidavits filed, which
dispute cannot be decided without the hearing of oral evidence, the court may, in its discretion which is to be
exercised judicially: (a) dismiss the application with costs; (b) order oral evidence be heard in terms of the
rules of court; or (c) order the parties to trial.

(2) The court would, in its discretion, dismiss an application with costs rather than order the parties to trial
or that evidence be heard on certain defined issues when the applicant should have realised, when launching
his application, that a serious dispute of fact was bound to develop. In the instant case, so strange and
bizarre was the story which was told in the founding affidavit, that the applicant must have foreseen
that a serious dispute of fact was bound to develop. The applicant should have proceeded by action.

(3) The application would be dismissed with costs, which should be on the scale between attorney and client
to mark the court's displeasure at the fact that the applicant had proceeded by way of application when he
should obviously had proceeded by way of action. This was a matter where the respondent should not be out
of pocket at all as far as his costs of opposing the application were concerned. Botswana Defence Force and
Another v. Merafhe [2000] 2 B.L.R. 83, C.A. (Full Bench) cited.

● The issue in this case was whether proceedings by way application were the
best way to proceed. The judge held: In the instant case, so strange and
bizarre was the story which was told in the founding affidavit, that the
 applicant must have foreseen that a serious dispute of fact was bound to
develop. The applicant should have proceeded by action. This case
demonstrates times when the court will dismiss an action with costs because
the proceedings prayed for do not suit the matter at hand.
It is then important to be aware of the potential of a dispute of fact arising
when proceeding by way of application .

Grace Morewane v Edward Tainton, [2005] 1 BLR 336

The applicant applied for an order evicting the respondent from a borehole. The respondent opposed the
application and contended that he owned the borehole through inheritance. The dispute between the parties
had previously been referred to a sub-land board as well as a land board, the latter having made an order
requiring the respondent to vacate the borehole. The respondent contended that the applicant's use of
motion proceedings when there were disputes of fact was inappropriate and contended that the application
had to be dismissed on this basis.
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Held:
�(1) It was clear from the evidence that there were bona fide disputes of fact which rendered the
matter unsuitable for resolution on motion proceedings. As the matter had previously served in other
fora, disputes of fact were reasonably foreseeable by the applicant. In the final result the application
had to be dismissed.

(2) It was furthermore irregular that certain documents annexed to the applicant's papers were written in the
Setswana language without any interpretation. In terms of the provisions of s 8(1) of the High Court Act (Cap
04:02), English was the language to be employed in court and the evidence, pleadings and record of
proceedings had to be in that language. The documents not in that language had to be interpreted by a duty
sworn translator as envisaged under Orders 65 of the Rules of the High Court.

(3) It was furthermore irregular that some of the documents were in manuscript without a typed version. All
documents not in the language of the court had to be interpreted but duly qualified interpreters and
documents in manuscript had to have the typed version annexed together with the manuscript.

Zimbank Botswana Limited v Diana Catherine Makura, [2002] 2 BLR 497

The respondent had commenced proceedings in the High Court by way of notice of motion for an order
directing that a letter written by the appellant to the respondent terminating her contract of employment was
a breach of their contract and directing the respondent to pay P31242.00 as damages for such breach. The
court granted the order sought and the appellant lodged the present appeal in which it contended in limine
that the procedure adopted by the respondent in proceeding by way of application was wrong.
Held:
(1) The finding by the court a quo that the damages were liquid was incorrect: the measure of damages in
such a case is not the amount which the employee would have received had her services been continued and
she had been paid monthly until the date when the term of the contract would have expired. She would have
been expected to have looked for alternative employment.
(2) Although part of the prayer was for a declaration of rights, the ultimate purpose of the application was not
to obtain a declaration of rights but the payment of damages and the procedure had to be judged on this basis.
SA Eagle Versekeringsmaatskappy Bpk v. Harford 1992 (2) S.A. 786 (A) followed.
(3) Application proceedings were intended in general for cases where, at the outset, it was not anticipated
that it would be necessary to produce oral evidence in order to reach a decision. In order to prove damages
such oral evidence would be necessary and for this reason application proceedings were inappropriate.
(4) The basic principle was that if a dispute of fact may reasonably be anticipated when proceedings
are commenced, the person seeking relief should choose an action rather than an application as the
way to commence the litigation.
● As clearly set out, this case is an illustration of instances where application
proceedings were not the best procedure to adopt.

Sohawon v BP Botswana (Pty) Ltd [2000] 2 BLR 460

The plaintiff instituted an action to evict the first defendant from Tribal Lot No. 6 Molepolole and the payment
of damages and rental for the use of the property. In his particulars of claim the plaintiff alleged that he held a
cession of rights to the property and that the first defendant was in occupation of that property without his
consent. The second defendant applied to the court to be joined in the proceedings as second defendant. In its
application, the second defendant stated that it had been the original owner of Lot 6 Molepolole and that the
first defendant was in occupation of a portion of that property by virtue of a lease granted to it by the second
defendant, and that it had been orally agreed between the plaintiff and the second defendant, prior to the
�execution of the lease agreement that a portion of Lot 6 covering a filling station was excluded from the
sale. The second defendant therefore counter-claimed against the plaintiff for an order for
rectification of the sale agreement and the excision of the petrol filling station from the area sold. At
the commencement of hearing, the parties agreed that the second defendant should commence the
proceedings and give his evidence in order to prove its case for the rectification of the sale agreement and
the subsequent excision of the filling station from the remainder of Lot 6 Molepolole. At the close of the case
for the second defendant, the plaintiff applied for absolution from the instance on the ground that the second
defendant's evidence for rectification did not disclose a prima facie case.

Held, dismissing the application:

�
(1) In an application for absolution from the instance, the test to be applied was very much similar to the test
that would be applied in a criminal case where there was a submission of no case to answer. The criterion to
be applied was that "at the close of the case for the plaintiff the question which arises for consideration of the
court is, is there evidence upon which a reasonable man might find for the plaintiff?" The decision of the court
would have to be based on the theoretical reasonable man. At that stage of the proceedings it would be
unusual to discuss the credibility of the witnesses. The evidence as given had to be regarded as credible
unless it appeared that the evidence was such that it was inherently unbelievable and could not ever be
accepted by a reasonable person. Gascoyne v. Paul and Hunter 1917 T.P.D. 170 applied.

(2) In the present case, on the totality of the evidence given for the second defendant, a reasonable man might
conceivably find for the second defendant.
● This case is an example of a counter application.
● If a respondent requires more than the dismissal of the application and a
consequent order for costs, it is incumbent upon him to make a counter �
application.
Any party to any application proceedings may bring a counter application, or
may join any party to the same extent as would be competent if the party
wishing to bring such counter application or join such party were a defendant
in action and the other parties to the application were parties to such action;
in the latter event, Order 16 shall apply mutatis mutandis. The rules are silent
about how this should be done, but by analogy with the bringing if a counter
claim in actions it is unnecessary, although preferable to file a separate
notice of motion. It is sufficient to include the prayers in the answering
affidavit. The answering affidavit may also serve as the founding affidavit of
the counter application. The periods prescribed with regard to applications
shall apply mutatis mutandis to counter applications
SESANA AND OTHERS v. THE ATTORNEY-GENERAL 2002 (1) BLR 452 (HC)
The 242 applicants applied for an order declaring that the termination by the government of basic services to
the applicants in the Central Kgalagadi Game Reserve was unlawful and unconstitutional and that the
government was obliged to restore the services and further that the applicants whom the government had
forcibly removed from the Central Kgalagadi Game Reserve after the termination of services to them, had
been unlawfully despoiled of their land and that such land should be restored to them. The respondents filed
answering affidavit and at the same time raised a number of points in limine, including that the � first
applicant had no locus standi to represent the 241 other applicants; that he had no power of attorney
authorising him to sue on behalf of the other applicants; the jurat on the first applicant's affidavit did not
comply with the rules and therefore the affidavits ought to be quashed. The applicants subsequently filed re-
sworn founding and supporting affidavits. For the first time a power of attorney was also filed. The
respondent then filed further points in limine in which it was contended that the applicants were barred from
submitting further affidavits.
Held: (1) Order 12 provided for three sets of affidavits in application proceedings on notice of motion: the
supporting or founding affidavit, the answering affidavit of the respondent and the replying affidavit of the
applicant, if any. In terms of rule 6(5) the court may in its discretion permit the filing of further affidavits and
there was a need to comply strictly with these provisions. Transvaal Government v. Standerton Farmers
Association 1906 TS 21 followed.
(2) It was not permissible for any party to file further affidavits after the filing of replying affidavits
without leave of the court. The filing of re-sworn or re-attested founding and supplementary affidavits
after the respondent had filed answering affidavits was highly prejudicial to the respondent who was
not permitted by the rules to file further affidavits once the answering affidavit had been filed. It was
a well-established general principle that a party who chose to approach the court by way of
application proceedings had to stand or fall by his founding affidavit as originally filed unless excused
by the court. No party had the authority to rewrite the rules of the court and the applicants could not
disregard the rules of court and then attempt to persuade the court to condone their conduct. It was
unacceptable that the court should be presented with a fait accompli by the applicants and for the
court to be expected to fold its arms in those circumstances. The re-sworn affidavits filed without
leave of the court could not be allowed to stand and had to be expunged from the record.
(3) The fact that the first applicant could not read or write meant that the provisions of Order 13 rule
12(1) had to be applied and these were peremptory that the officer taking the affidavit had to certify
in the jurat that the affidavit was read in the presence of the deponent who seemed perfectly to
understand it and made his signature or mark in the presence of the officer. Order 13 rule 17
provides that every annexure had to be signed, marked and certified. Failure to comply with these
requirements rendered the affidavit a nullity. Seretse v. Begwe [1990] B.L.R. 559, CA, distinguished;
Kgotso v. Botswana General Insurance Ltd [1997] B.L.R. 1107 considered; H Thamatlhogo Training and
Conference Centre (Pty) Ltd v. Botswana Development Corporation (CC 39/98) unreported, not followed;
Thamatlhogo Training and Conference Centre (Pty) Ltd v. Botswana Development Corporation [1999] 1 B.L.R.
94, CA, followed.
(4) As to the first applicant's locus standi, a person could have locus standi or a right to sue on behalf of
another person and yet still lack the necessary legal authority from that other person to sue or institute action
on his behalf. In other words, having locus standi to sue in a court of law was not synonymous with having
been given the authority required by law to institute proceedings in a court of law. A person who alleged that
his rights or rights of his community or tribe were being violated, such as the first applicant, would have the
right to institute proceedings in the High Court to protect those rights which he alleged were being violated in
terms of the Constitution as long as he had a substantial interest in the enjoyment of those rights by himself
or his community. Kamanakao I and Others v.The Attorney-General and Another [2001] 2 B.L.R. 654 followed.

(5) However the present proceedings had not been instituted on behalf of the other 241 applicants by the
persons who were said to comprise the negotiating team even if it was assumed that those persons were
authorized by the applicants to act on their behalf: it was the first applicant and not the negotiating team who
had instituted these proceedings and there was nothing on the record to show that they authorised the first
applicant to bring the proceedings on their behalf as he purported to do. The first applicant accordingly
lacked locus standi to bring the application on behalf of the other applicants.

● This case highlights the importance of following procedure in regards to

affidavits, that non-compliance of the rules will render the affidavits a
 complete nullity.
● The notice of motion must be supported by affidavits and the general rules
prescribing their contents is governed by order 13 of the Rules of the High
Court. An affidavit is a written, sworn statement of evidence from an
individual. Affidavits take the place of viva voce evidence in the application
procedure and are treated as being similar in certain respects to evidence
given viva voce and therefore the same principle are applicable to both,
namely, that hearsay should not appear in an affidavit any more than in oral
evidence, save in exceptional cases of urgency where hearsay evidence in the
form of statements of information or belief, provided the sources and grounds
for the belief are given.

PANPHARMA (PTY) LTD v DIRECTOR OF HEALTH SERVICES AND OTHERS 2007 (2) BLR 502 (HC)

The applicant made application in the High Court for orders reviewing and setting aside, inter alia, (a) the
first respondent's decision, in terms of s 6(4) of the Drugs and Related Substances Act (Cap 63:04), to stop the
applicant from conducting its business of manufacturing drugs, on the ground that it had not been afforded an
opportunity to make representations to the director before he took his decision; and (b) the first
respondent's decision to refuse permission for the applicant to resume such manufacturing operations, on
the ground that he failed to act fairly, objectively and impartially in reaching his decision. The respondents
resisted the grant of order (a) on the basis that the applicant had delayed unreasonably in instituting its
application for review; and the applicant had had ample opportunity to make any representations it wanted
to make to the director before he took his decision. The respondent resisted the grant of order (b) on the
basis that there existed disputes of fact which rendered the issue incapable of determination on the papers.
Held:
(1) An application for judicial review had to be made within a reasonable time, or promptly. If not
made within a reasonable time, the court nonetheless retained a discretion to condone the
unreasonable delay in bringing the application. Mothusi v The Attorney-General [1994] B.L.R. 246, CA at p
250 applied.
(2) The applicant had amended its notice of motion to include its prayer for the review and setting
aside of the first respondent's decision approximately three years after the first respondent's decision
was taken. In the circumstances, it could not be said that the applicant had brought its application
promptly. Nor was there basis upon which such unreasonable delay could be condoned.
(3) The principle of audi alteram partem entailed informing the affected party of the substance of the
complaint against him to afford him an opportunity to give his explanation, for example, by way of
representations, and having his explanation taken into account by the decision-maker in arriving at his
decision. Masimolole v The Attorney-General and Another [1997] B.L.R. 142, CA applied.
(4) The applicant had been afforded every opportunity to present its case by responding to the comments and
recommendations of the inspectors and had therefore been afforded its right to a 'hearing'.
(5) Where there existed a dispute of fact on the papers, the order sought could nonetheless be granted where
the facts alleged by the applicant and admitted by the respondent, together with the facts alleged by the
respondent, justified the grant of the order. Greenways (Pty) Ltd v Engen Marketing Botswana (Pty) Ltd
[2005] 2 B.L.R. 270, CA applied.
(6) On that basis, the present matter was capable of determination. However, the applicant had not shown
that the first respondent had failed to act fairly, objectively or impartially in his dealings with the applicant.
(7) The applicant had failed to show that the first respondent's decisions were susceptible to review.

● This particular case demonstrates the time factor when dealing with legal
proceedings. When bringing a case forward it is important to bring it within
reasonable time.

LETSOALO v. LESUMA TRADING CO (PTY) LTD AND ANOTHER 1993 BLR 214 (HC)
When an attorney signs a certificate of urgency, it is not a substitute for the requirements of Ord. 12, r. 13(2)
of the Rules of the High Court. It is an additional requirement designed to ensure that the cases designated
urgent were, in fact, urgent. In other words, over and above the requirements of r.13(2), the attorney is
required to scrutinise the case from a point of view of urgency and to confirm that the case is one of urgency
as deposed to by his client and, therefore, the normal rules as to the dies for service and sitting times of the
court can be G dispensed with. The attorney is acting in a dual capacity, firstly, as an officer of the court and,
secondly, as the guardian of the interests of his client. The attorney signing the certificate should act in good
faith, bearing in mind that the court should treat such a certificate seriously. The affidavit supporting the case
must make out a case for urgency and the signed certificate does not ipso facto establish urgency.
The Rules of Court and the established procedures should only be dispensed with to the extent
necessitated by the urgency of the matter. Urgency has degrees and where a matter, though urgent, is
not desperately urgent as to require immediate court attention a litigant is required to comply with
the Rules to the extent possible and to move the court in a reasonable manner and not a desperate
hurry.

● This case deals with urgent applications and sets out the principles of law
governing such applications. The rule about urgency is provided for in Order
12 Rule 13 (1)(2):
(1) In urgent applications the judge may dispense with the forms and service
provided for in these Rules and may dispose of such matter at such time and
place and in such manner, and in accordance with such procedure (which
shall as far as practicable be in terms of these Rules) as to him seems meet.
(2) In every affidavit filed in support of any application under subrule (1), the
applicant shall set forth explicitly the circumstances which he avers render
the matter urgent and the reasons why he claims that he could not be
afforded substantial redress at a hearing in due course.
● �As a general principle, the rules of court and the established procedures
must be complied with as far as is practicable and should only be dispensed
with to the extent necessitated by the urgency of the matter. The extent of the
variation of the rules must be dictated by the extent of the urgency. Urgency
may be negated by delay in acting or by the fact that the applicant had
knowledge of the circumstances which were used as the basis of urgency for a
substantial period of time before making the application. Furthermore, the
rules regarding urgency only suspend rules of the High Court regarding
procedural matters and not the mandatory provisions of the statutes.
● When you dispense with the rules, you in fact reduce the time of service on
the opposite party and in some cases, the urgency will require that a litigant
omits altogether any service on the other party. This results in disruption of
the usual roll and routine. Rule 13(2) requires that the factors and
circumstances which an applicant believes render the case urgent, should be
mentioned explicitly and secondly the applicant must give the reasons why he
believes he could not get substantial redress at the hearing in due course. An
applicant may succeed in meeting one of the requirements and not the other,
in which case he must fail.

Gaotlhobogwe Mosebi v AG and Others� [2001] BLR 349

Some 319 people (represented by the plaintiff) issued a writ of summons against the defendants averring
that the government of Botswana, the Bamangwato Tribal Authority (second defendant) and a chief (third
defendant), as servants, employees or agents of the first defendant, had changed the name of their village
Lesenople to Matolwane without proper consultation with the residents of the village. It was alleged that the
name change was null and void and without lawful authority and ultra vires. They prayed for orders declaring
that name change was null and void; that it was the inherent birthright of the of the residents to decide a
name for their village; that the defendants had no authority to rename the village without consultations with
the residents; and the defendants pay the cost of the suit. In argument on a number of points in limine
counsel for the state submitted that the plaintiffs should have proceeded by way of review under
order 61 and not by way of action: in the circumstances, the order should be dismissed. The plaintiffs
contended that what they were seeking was a declaration and not a review and although first defendant could
be sued in his administrative capacity, the other two defendants had diffused functions, namely as state
functionaries and tribal leaders and it was difficult to know powers they were exercising at the time.
Held:
(1) The declaration averred that the second and third defendants were sued as servant, employees or
agents of the first defendant and if so, they were sued in their administrative capacities and not as tribal
leaders. The plaintiff�s argument in this regard was self-defeating and the judgement would proceed on
the basis that the three defendants were sued in their administrative capacities.
(2) Order 61 was not exclusive and where a claimant had a cause of action in a civil law sense
he was not obliged to proceed by way of judicial review. This view was strengthened by the
provisions of order 5 which provided that no proceedings would be void or rendered void by
reason of them having begun by means other than those required in the case of proceedings in
question by any provision of the rules.
(3) In terms of order 5 rule 3, the application to set aside proceedings for irregularity could not be
allowed unless they were made within a reasonable time. In the present case, for a period of more than
two years, the defendants did nothing until the day on which the trial was supposed to have commenced
and the objection was accordingly out of time.
(4) In terms of order 20 rule 20, the party complaining of any pleading was required to communicate
with the other party and call upon them to remove the cause of complaint. This had not been done in the
present case and was wrong and the points in limine had to be dismissed.
● This is an example of a trial action.