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IN THE COURT OF
APPEAL FOR THE REPUBLIC OF

BOTSWANA HELD AT
GABORONE

COURT
OF APPEAL CIVIL CASE NO. CACGB-001-13

HIGH
COURT CIVIL CASE NO. MAHLB-000077-12

DATE:
01 FEBRUARY 2013

In the matter
between:

Lodges of
Botswana (Pty)
Ltd……………………………………………….Appellant

And

Tawana Land
Board……………………………………………………1st
Respondent

Botswana Tourism
Organisation………………………………..2nd
Respondent

Adv. Guy Hoffman,
SC with Adv. Steven Kuny for the Appellant

Mr. B. D. Leburu,
with Ms. A. M. Seru for the Respondents

JUDGMENT

CORAM: FOXCROFTJA

LORD ABERNETHY JA

GAONGALELWE JA

FOXCROFT JA

1. This is an appeal
against the judgment of Dambe J on 28 December 2012 dismissing
appellant’s urgent application for relief
pending the outcome
of fresh tender proceedings, alternatively review proceedings to be
instituted. Appellant had sought an interim
interdict preventing the
first respondent from ordering it to vacate two safari camps known as
Delta and Oddballs in NG27B, Zone
2 after 31 December 2012, and
permitting it to remain in these camps until such time as tender
proceedings to determine the winner
of a concession (including rights
to lease and occupy Oddballs and Delta Camps) in respect of NG27B had
been completed.

2. Appellant also
applied for the interim interdict to be of effect pending the
finalization of proceedings to be instituted in
the High Court,
within 60 days of the grant of the interdict, for –

(a) the reviewing
and setting aside or correcting the decisions of the first respondent
to order appellant to vacate the camps by
31 December 2012, and

(b) the reviewing
and setting aside or correcting the decision, purportedly made on or
about 13 September 2012 and 8 November 2012
that appellant had failed
in both tenders to obtain the “minimum pass mark of 70%”
and could therefore not proceed
to the financial evaluation, being
disqualified in both tender proceedings.

3. In the founding
affidavit dated 23 December 2012 of Mr. Peter Sandenbergh the
Managing Director and major shareholder of the
applicant, it is
stated that he settled in Maun in 1978 and has resided there ever
since. In his earlier affidavit of 13 December
2012, Mr. Sanderbergh
provided more detail of his business activities in Maun. A company
known as North West Holdings, ultimately
owned and controlled by
himself, leased the sites in NG27B from the first respondent in 1983
until 1997 when the sites were put
up for public tender. North West
Holdings established new camps called Oddballs and Delta (hereinafter
referred to as the Camps)
at a time when the safari industry in the
Okavango River Delta was in its infancy. Since 1997, the appellant
has held three successive
five year leases of the Camps, and has
built up a substantial business providing revenue to the country and
employment to approximately
60 Botswana citizens. In October 2012,
the appellant paid an amount of PI 71 441.00 to its employees in
respect of wages. None
of these allegations is denied.

4. The “Tourism
Lease” of 13 November 1997 provided for an option to the lessee
to renew the lease upon the same conditions,
save as to rental, for
two further periods of five years each. The lease, set to end on 31
December 2012, marked the expiry of
the third five year period, and
clause 4.9 of the lease provided for a fresh tender of NG27B to be
put up. It provided further
that the present lessee (appellant) was
eligible to tender again. Clause 4.10 which follows is of cardinal
importance to this case.
It provides:-

“4.10 Subject
to compliance as aforesaid the Lessee shall, in the event of its
tender proposal being professionally acceptable,
and being bettered
(in the view of the Lessor, DWNP and DoT) by a third party, be given
the opportunity to match the tender proposal
of such third party, and
in such event, the Lessee shall be entitled to enter into a new lease
for such period and upon such terms
and conditions as the parties
shall then agree. ”

5. This clause gives
the appellant a clear right to match the tender proposal of a third
party who has “bettered” the
appellant’s
professionally acceptable “tender proposal, and then to enter
into a new lease for such period and upon
such terms and conditions
as the parties shall then agree”, (emphasis added).

The arrangement is
justifiably referred to in the papers as a right of first refusal.

6. What further
strengthened the appellant’s position, in Mr. Hoffman’s
submission, was the letter received by it in
September 2011. The
letter is set out in full below:- “TAWANA LAND BOARD

19 September 2011

The Managing
Director Lodges of Botswana P. O. Box 39 Maun

Dear Sir

RE: EXPIRATION OF
LEASE AGREEMENT WITH TAWANA LAND BOARD

As you may be aware,
your lease agreement with the Tawana Land Board for the Concession in
NG 27 expires as at 31st December 2011
and the Board has resolved
that fresh tendering should be conducted on the same. In order to
facilitate and enable a smooth tendering
process, the Tawana Land
Board at its sitting of 22nd – 26th August, 2011 resolved to extend
your lease period by a further twelve
(12 months) during which time
tendering will be conducted and concluded before the start of the
next tourism season. This will
enable a smooth winding down of
operations for operators. Hope this arrangement allays your fears for
an abrupt transition.

Yours faithfully

I. K. Theophilus

For BOARD SECRETARY”

7. This letter, in
my view, provides clear evidence of the Land Board’s desire to
facilitate a “smooth tendering process”
without any
abrupt transition, or the hiatus which was eventually to result. The
closing sentence of the letter in particular assured
the appellant
that tendering procedures would be concluded before the start of the
next tourism season. It followed from this assurance
that no abrupt
vacating of the camps would take place. Any reasonable tenant reading
this letter would have understood that his
lease would be extended
until the end of December 2012, and that there would be no “abrupt
transition” and that if
a new tenderer were to take his place
as tenant, he would have sufficient time to wind up for safari
operation before being required
to vacate the camps.

8. Mr, Leburu’s
reply to this submission was twofold. In the first place he mounted a
barrage of technical objection to the
manner in which appellant had
approached the High Court. Secondly, he submitted that the action of
the Land Board was justifiable
in terms of the law requiring farms on
tribal land without legal authority to be evicted.

9. As for the
technical objections, they appeared to ignore the fact that this
matter was brought to the High Court in extremely
urgent
circumstances. It is fully explained in the papers that for practical
reasons the appellant was unable to annex various
documents referred
to in the founding affidavit to the urgent application. This was in
my view of no consequence since the documents
had already been filed
at court. On 18 December 2012 when appellant filed a replying
affidavit, it had also not received copies
of the annexures to the
first respondent’s answering affidavit. Blemishes of this sort
are to be expected in matters of extreme
urgency. It is for this
reason that the Rules of Court allow relaxation of the Rules in
urgent matters. (See Order 12 Rule 12 of
the High Court Rules).

10. In any event,
the urgent application brought under case number 000071/12 on 13
December 2012 was withdrawn on 20 December 2012
after an attempt to
amend the notice of motion was refused by Moroka J. Later that day,
the appellants’ attorneys gave notice
by letter to the first
respondent’s attorneys of its intention to reissue its
application. No response was received as to
suggest time frames for
the filing of papers or the setting down of the matter. The present
application was then issued under case
number 000077/12 and enrolled
for 24 December 2012. All the documents filed in the High Court in
the first application were placed
before Dambe J in the second
application. The matter was heard on Christmas Eve (24 December) and
Counsel referred to applicant’s
affidavits in both the first
and second applications.

11. Mr. Hoffman
submitted, correctly in my view, that the procedure adopted by the
appellant was the only one available to it, given
the exigencies of
the situation. Mr. Leburu mounted a sustained attack on the procedure
adopted by the appellant, labelling it
as one “unknown to the
Law of Botswana”. Dambe J heard this second application,
upholding two points in limine relating
to lack of urgency and
failure to establish a prima facie case. The learned Judge a quo made
no order in regard to the “unprocedural”
argument of Mr.
Leburu in that Court since it was unnecessary to do so. However,
Dambe J certainly did not non-suit the appellant
for bringing an
application “unknown to the law”. Mr. Leburu developed a
highly technical argument seeking to show
that Order 12 Rule 6 had
not been adhered to. He ignored the purpose of Rule 6 and the fact
that this was indeed the renewal of
an application on the same
papers, and supplemented after the withdrawal of an earlier one on
the same day. Supplementation was
necessary to provide answers to
documents from the other side which had not been available to the
appellant at the hearing of the
first application.

12. Mr. Leburu
submitted that the appellant “ought to have simply instituted
new proceedings with all annexures as it considers
(sic) necessary”.
What actually happened was that fresh proceedings were instituted in
the second application after the attempt
to amend the first notice of
motion to include a prayer for a mandamus against the Land Board was
unsuccessful. There is nothing
in law to prevent a litigant from
bringing a fresh application on the same papers, supplemented as
necessary, in circumstances
such as those here present. The first
application was withdrawn when the appellant was unable to amend it
to include relief which
it then sought. Ironically, the appellant no
longer seeks such relief. The amendment sought was refused and
appellant was obliged
to issue a fresh notice of motion to protect
itself from a perceived threat of irreparable harm. The second
application was dismissed
entitling the appellant to an appeal as of
right. It is trite that a refusal to grant an interim interdict is
appealable without
leave. See Herbstein & Van Winsen – The Civil
Procedure of the High Courts of South Africa, 5th ed., Vol. 2 at
1211. See also
Van Niekerk v. Van Niekerk, 2008(1) SA 76 (SCA) at 78
where Van Herden JA said “it is settled law that the refusal
but not
the granting of interim interdicts is appealable.”

13. I am satisfied
that there is no merit in the argument of Mr. Leburu that a procedure
“unknown to the Law of Botswana”
was followed in this
case. He was reminded of the old adage that “the Rules are made
for the Court, not the Court for the
Rules”, to no avail. He
persisted in arguing that it mattered not how strong the basis of the
appellant’s case was
on the merits, if it had failed on
procedural grounds. This blinkered approach was again to be seen
later in the argument on the
merits.

14. On the merits,
Dambe J decided that the tenor of the letter of 19 September 2011, to
which I have already referred,

“was to give
the applicant time to wind down operations and it is significant that
its author expressed optimism that the
arrangement will quell the
applicant’s fears of an abrupt transition.”

The learned Judge a
quo regarded this letter as a timely warning to the appellant that
the extension granted in the letter was to
afford the appellant time
“to make all necessary arrangements to vacate”

This is not my
understanding of the letter. What is said in the letter is that the
appellant’s lease would be extended for
a year to 31 December
2012. Tendering for a new lease would be “conducted and
concluded before the start of the next tourism
season”. The
first respondent (“Land Board”) was of course aware that
the appellant would be entitled to tender
for the new 5 year period
commencing on 1 January 2013, and the appellant did put in tenders in
both tendering processes in 2012.
No fresh contract was awarded to
any tenderer. The Court a quo had no regard to the clear implication
in the letter of 19 September
2011 that if the appellant were to be
unsuccessful in the 2012 tender process, he would be made aware of
this “before the
start of the next tourism season” and
would have sufficient time then to wind down his operations. It did
not mean that he
had to start winding down his operations once he got
the letter of 19 September 2011. The last sentence of the letter
makes clear
that the appellant need not worry about any “abrupt
transition”. That could hardly have been said if the intention
of the Land Board, expressed through its secretary Mr. I.K.
Theophilus, was to advise appellant that it was to commence winding

down its operations.

15. In my view,
Dambe J ignored the fact that it was only on 4 December 2012 that the
appellant received a letter from the Land
Board informing it that its
tender had been unsuccessful and giving it notice to vacate Delta and
Oddballs Camps. What is more,
no tenderer had been successful, but
despite the obvious prejudice to the appellant, the Land Board was
determined to remove him
and his 35 year operation, along with all
his equipment and, most importantly all of his 60 employees, from the
camps before the
end of 2012.

16. Dambe J
misdirected herself in holding that –

“The applicant
knew as agreed that the lease comes to an end on the 31st December
2012 and extension of the 19th September
2011, was to afford to make
all necessary arrangements to vacate. ”

As shown above, this
was a misreading of the letter of 19th September 2011 which led to
the erroneous view that the matter was not
urgent, since between 19
September 2011 and 4 December 2012 the appellant –

“sat on their
laurels and at their luxury and convenience to lodge an application
for an interdict over a decision that was
taken 13 months ago.”

This was an
incorrect finding. No decision alerting the appellant of the need to
vacate had been reached in September 2011. On the
contrary, the
letter of 19 September left him with the understanding, reasonable in
the circumstances, that all would be done in
good time, and that if
he were to lose the fresh tender of the sites, he would have months
to close down his business operation.
In no way could the letter of
September 2011 have justified a demand on 4 December 2012 to vacate
on 31 December 2012. The learned
Judge a quo also entirely ignored
the pre-emptive right of the appellant to match the bid of a
successful tenderer, provided his
tender were to be adjudged
“professionally acceptable”.

17. Mr. Leburu’s
argument on this aspect of the appeal was simply that when the lease
expired on 31 December 2012, any right
of possession which the tenant
had held expired with the lease. Continued occupation of the land in
question would be unlawful.
He even likened the position of the
appellant after 31 December 2012 to that of a squatter.

That is an
unsustainable submission which ignores the position in which the
appellant found itself. All Mr. Leburu could say was
that the Land
Board was legally obliged to evict the appellant from his land just
as it was obliged to evict squatters. It mattered
not, in his
submission, that employees lost their jobs and many family members
suffered extreme hardship, so long as the law compelling
unlawful
occupation of land was carried out. This submission was at complete
variance with the duty of the Land Board to act in
the interests, and
for the benefit and advantage of the citizens of Botswana, and for
the purpose of prmoting the economic and
social development of all
the peoples of Botswana, as set out in section 10 of the Tribal Land
Act, Cap 32:02. The extreme prejudice
to the appellant and its
employees was submitted to be entirely irrelevant. It is not denied
on the papers that vacating the camps
will result in wages of PI70
000.00 per month to employees of the appellant not being made. Of
course, the State will also lose
a great deal in taxes, fees, rent
and levies normally payable by the appellant.

18. The reason, in
my view, why the Land Board was not obliged to evict the appellant
until the tender process referred to in its
letter of 19 September
2011 was completed was simply because the appellant was entitled to
remain on the affected land and continue
its business operation until
it was unable to enter into a fresh lease with the Land Board. The
lease clearly contained an implied
term, as set out in the letter to
the appellant of 19 September 2011, that it would not be required to
vacate the land until the
fresh tender process was complete. As yet,
it is not complete.

19. Mr. Leburu
submitted that there could be no importation of an implied term into
the contract of lease entitling the tenant to
remain in possession,
if that possession amounted to a criminal offence. This was to
misunderstand the contractual situation between
lessor and lessee in
this case. Receipt of the letter of 19 September 2011, was
acknowledged in a letter from appellant to the
Land Board on 18
October 201. The reply is headed “RE: EXPIRATION OF OUR LEASE”
and expresses the thanks of the appellant
and implicit agreement to
the terms of the extension of the lease. The contractual result in my
view was that the appellant was
placed in a position where it was
entitled to maintain that it could remain in occupation of the leased
property until the tender
process, in which it was entitled to
participate, was complete. No other remedy than an interdict pending
the review to be launched
and/or the fresh tender process was
available to him when he was summarily ordered to vacate the
property. The balance of convenience
is, as Mr. Hoffman submitted,
overwhelmingly in appellant’s favour. An interim interdict
should have been granted.

20. As already
indicated, Mr Hoffman did not seek a mandamus against the Land Board,
but only an interdict restraining the first
respondent from requiring
the appellant to vacate Oddballs and Delta Camps within NG27B by 31
December 2012, pending the final
determination of a review to be
instituted within 30 days of the date of this judgment setting aside
or correcting the decision
of fist respondent that appellant vacate
the Camps by 31 December 2012, and second respondent that the
appellant failed to obtain
the minimum pass marks of 70% in the two
tenders which took place in September and November of 2012.

21. Mr. Hoffman also
submitted that this Court should hold that the lease had been
impliedly extended to allow the appellant to
continue to occupy the
Camps in terms of the lease set to expire on 3 December 2012 for a
period of ten months. Such a period would,
he submitted, allow
sufficient time for the new lessee to be identified by the tender
process which would be completed by then.

22. It seems to me
that it would not be appropriate for a court, in an urgent
application, to make such an order. The request seems
to flow from
the prayer for a mandamus in prayer 4 of the Notice of Motion in case
no. 000077/12 which was not proceeded with at
the Bar. Mr. Hoffman
abandoned the relief sought in prayer 4 of the amended Notice of
motion, conceding that this relief was inappropriate
for relief under
the Tribal Land Act [Cap32:02] since the land exceeds 5 acres in
area. He submitted in his supplementary Heads
that the Court would be
asked to grant a mandatory interdict ‘’ordering the first
respondent to extend the lease agreement
PW5 for a period of one year
terminating on 31 December 2013, alternatively for a period of nine
months after the award of a tender
in respect of concession area NG
278 in the event of that tender not being awarded to the appellant”.

This submission was
not pursued and at the close of this argument in reply, Mr. Hoffman
submitted that it was implicit in the lease
that occupation would
stand until any fresh tender was complete. While that may well be so,
and while the letter of 19 September
2011 strengthens that argument,
all that was necessary for the Court a quo to decide was whether the
appellant had established
a prima facie case, that no other relief
was available, and that the balance of convenience was in his favour.
I have no doubt
that such a prima facie case was established. There
can be no doubt that the matter was urgent. All that is required is
for the
relief which I intend to grant to specify that the interim
interdict being granted is to persist for the period concluding with

the determination of the appellant as the successful tenderer, if
such be the case, of NG27B, and that In the event of appellant
being
an unsuccessful tender, the interim interdict will remain in force
for a period of a further three months after the determination
of the
new lessee, in order to allow the appellant a reasonable period of
time to close his business and to vacate NG27B.

23. It is
accordingly ordered as follows

1. The appeal is
upheld with costs including the costs attendant upon the employment
of two Counsel;

2. The first
respondent is hereby interdicted, restrained and prohibited from;

2.1 giving effect to
the decision taken and resolution passed at its meeting held from
14th to 29th November 2012, to notify the
applicant to vacate NG27B,
Zone 2 (“NG27B”) by 31 December 2012; and

2.2 giving effect to
its notice dated 4 December 2012 requiring the applicant to handover
and vacate Oddballs and Delta Camps within
NG27B by 31 December 2012;

2.3 causing and/or
requiring the applicant to vacate the aforesaid camps and from
interfering with and/or restricting the applicant’s
occupation
of Oddballs and Delta Camps situated in NG27B.

3. The order in (2)
above shall operate as interim interdict pending

3.1 the final
outcome of tender proceedings to determine who shall be awarded the
concession (including rights to lease and occupy
Oddballs and Delta
Camps) in respect of NG27B; and

3.2 the finalization
of proceedings to be instituted in the above Honourable Court within
30 days of the grant of the aforesaid
order reviewing and setting
aside or correcting:

3.2.1. The decision
and resolution of the first respondent made at its meeting of 14-29
November 2012 and communicated to the applicant
in its letter of 4
December 2012 that the concession NG27B be put up for open public
tender and that the sitting tenant (being
the applicant) be notified
to vacate the area by 31 December 2012; and

3.2.2 The decision
second respondent purportedly made on or about 13 September 2012,
that the applicant’s bid in respect of
Tender No
46/090812/NG27B2 failed to obtain the minimum pass mark of 70% and
therefore could not proceed to the financial evaluation
and therefore
was disqualified.

3.2.3 The decision
second respondent purportedly made on or about 8 November 2012, that
the applicant’s bid in respect of
Tender No 063/
191012/NG27BZ2(2) failed to obtain the minimum pass mark of 70% and
therefore could not proceed to the financial
evaluation and therefore
was disqualified.

4. It is further
ordered in relation to the interim interdict pending the final
outcome of tender proceedings to determine who the
successful next
lessee of NG27B is, that the interim interdict will persist for the
period up to and concluding the determination
of the appellant as the
successful tenderer, if such be the case. In the event of the
appellant being an unsuccessful tenderer,
the interim interdict will
remain in force for a period of a further six months from the date of
determination of the new lessee
in order to enable the appellant a
reasonable time to close his business and to vacate NG27B.

5. Costs of the
application for an interim interdict, save for those tendered in
respect of the first, withdrawn notice of motion,
are to be paid by
the first respondent on an attorney and client scale and by the
second respondent jointly and severally, the
one paying the other to
be absolved.

DELIVERED IN OPEN
COURT AT GABORONE THIS 1st DAY OF

FEBRUARY 2013.

J. G. FOXCROFT
JUSTICE OF APPEAL

I agree

LORD ABERNETHY
JUSTICE OF APPEAL

I agree

M. S. GAONGALELWE
JUSTICE OF APPEAL

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