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IN THE COURT OF
APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT LOBATSE

COURT
OF APPEAL CASE NO. CACGB 016/12

HIGH
COURT CIVIL CASE NO. CVHFT-000030-08

DATE:
26 FEBRUARY 2013

In the Matter
Between:

CITIZEN
ENTREPENEURIAL DEVELOPMENT AGENCY…………………….APPLICANT

And

OLEFILE
MOUMAKWA……………………………………………………………………RESPONDENT

Attorney M.
Mhizha for the Applicant

Respondent in
Person

RULING

GAONGALELWE JA:

1. This is an
application for leave to appeal out of time against the Order granted
by the High Court dismissing applicant’s action
in terms of Order 23
of the High Court Rules. The background to the matter is that on 25th
January 2008 applicant instituted action
against respondent for
recovery of monies previously advanced to respondent. In terms of the
summons the amount involved is P243
545.55.

2. On service of the
summons respondent duly entered appearance to defend and subsequently
filed a plea. Such a plea was filed on
the 17th day of October 2008.
Thereafter applicant’s attorneys did not file any replication. Their
contention is that applicant’s
own staff were unable to furnish the
attorneys with the required information to put them in a position to
replicate. Next the Registrar
listed the case for dismissal for want
of prosecution in terms of Order 23 of the Rules of the High Court.

3. The dismissal was
listed to be heard on 26th March 2010. On the said date applicant’s
attorney attended the hearing. Page 25
of the record reflects that
the court said to applicant’s attorney;

“Counsel, no
affidavit has been filed to justify delay. A considerable time has
elapsed to the point of even raising a constitutional
issue of
affording the Defendant a trial within a reasonable time as

required by Section
10 (9) of the Constitution of Botswana”.

As for the
respondent he was also invited to address the court if he so desired
but replied that he had nothing to say.

4. At the end of the
hearing on 26th March 2010 the court dismissed the action for want of
prosecution with costs. Thereafter applicant’s
attorneys instituted a
fresh action under a different case number though still claiming the
same relief. The Respondent raised
the special plea of res judicata.
This second case was before a different judge who upheld the special
plea.

5. It is noteworthy
that in this application leave to appeal out of time is pursued only
in relation to the Order which dismissed
the case for want of
prosecution. There is no application in relation to the res judicata
Order.

6. As appears under
paragraph 3 above the judge faulted the approach of applicant’s
attorney of endeavouring to argue against the
dismissal without
having filed any affidavit showing cause why the matter was not to be
dismissed.

7. During the
submissions in this application I drew the attention of applicant’s
attorney to the Court of Appeal decision in Botipeng
v. Healthcare
Holdings (Pty) Ltd 2000(2) BLR.

In the same judgment
at page 119 (c), the court said when a litigant seeks to resist an
Order for dismissal under Order 23 he or
she must file an affidavit
setting out the grounds why the case is not to be dismissed. Further,
counsel’s attention was also drawn
to another Court of Appeal
decision, to wit Michael Jacobus Jordaan & Another v K.
Baitshupi, CACLB 037/08. The judgment in
this one was delivered by
the Court on 20th December 2008. The High Court had dismissed the
action on the basis that no affidavit
had been filed. At paragraph 9
of the judgment the court stated;

“There was
clearly no basis for this view of the Court a quo that an affidavit
was required.”

8. There being two
conflicting decisions of the court, it is my view that such supports
the argument that applicant has reasonable
prospects of success on
appeal. It is only fair that the court hears the matter.

9. Besides, the new
High Court Rules which introduced the concept of Case Management
became operational in May 2008. Although the
case had been registered
in January 2008, Order 42 encompassed existing litigation as well. On
such basis the appropriate step
was to have the case listed for Case
Management in any form instead of listing it for dismissal. After
all, as from May 2008, the
duty of driving the progress and pace of
litigation fell on the Judge as opposed to attorneys. On this
particular aspect as well
it appears applicant has a reasonably
arguable appeal against the Order of dismissal. See First National
Bank Botswana Ltd v. Phineas
Fred Tau – CACLB-041-08 and Phakalane
Estates (Pty) Ltd v. Water Utilities Corporation CACLB 073-10.

10. Applicant has
also raised the point of the justice of the matter. In his plea
respondent admits getting the loan and failure
to make any
repayments. This means in terms of the pleadings the indebtedness is
not disputed. It therefore prima facie means Applicant
is owed a
substantial sum of money. It is therefore applicant who stands to be
prejudiced by the dismissal Order while respondent
is not prejudiced
by this application for leave to appeal. In view of respondent’s
admission of failure to make any repayments,
I would say prejudice
would be occasioned to applicant who stands to lose out on a large
amount of money while on the other hand
no actual prejudice would
befall respondent if leave to appeal is granted.

11. It is clear that
a substantial portion of the delay period is attributable to the fact
that after the dismissal of the action
applicant’s attorneys
instituted a fresh action which was also dismissed as res judicata. I
will not delve into the question of
whether indeed a case that is
dismissed not on the merits but for want of prosecution becomes res
judicata since there is no application
in relation to that Order but
one thing clear is that the dismissal order is not a judgment
pronounced by the court in a case actually
decided by itself.

12. In the premises
the Order I make is that leave to appeal to the Court of Appeal out
of time against the Order dismissing the
case for want of prosecution
is granted. The costs of this application shall be costs in the cause
of the appeal.

DELIVERED IN OPEN
COURT AT GABORONE

THIS 26th DAY
FEBRUARY 2013

M.S GAONGALELWE
JUSTICE OF APPEAL

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