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IN THE HIGH COURT
OF BOTSWANA

HELD AT GABORONE

CAHLB-000036-12

DATE:
26 MARCH 2013

BEN BATSALELWANG
TINGWANE…………………………………………………….APPELLANT

And

MALETE LAND
BOARD………………………………………………………………..RESPONDENT

JUDGMENT

BUSANG J:

1. Sometime in the
year 2009, South East District Council, in Ramotswa was carrying out
some roads development projects in the village
of Ramotswa. During
the planning stage the Appellant somehow, realized that his plot was
going to be affected by the developments.
From the record, the first
formal correspondence was initiated by the Appellant, who wrote a
letter to the Council in terms of
which, he stated that, since his
plot was going to be affected by the developments, the portion that
shall remain shall be below
minimum size for residential plot and in
consequence thereof, he requested that he be allocated an alternative
plot.

2. The Respondent
replied by saying that the remaining portion shall be big enough.
Respondent basis for saying that, the plot shall
be big enough as I
understand it was that only 153 m2 of 1025, representing 14.25% shall
be affected by the developments.

3. The Appellant,
was aggrieved by the Respondent’s decision and he appealed to
the Land Tribunal, which dismissed his appeal.
At the Land Tribunal
the Appellant conceded that, he was aware that the minimum size 4 a
residential plot is 625 m2. He further
stated that he was willing to
accept a plot of measuring 625 m2, if he was allocated an alternative
plot, which is his wish. The
Appellant’s argument was that, the
Respondent should acquire the entire plot and not the 153 m2.

4. Respondent’s
position on the other hand is that, the Appellant had been offered
P900.00, which he declined as compensation
for the 153 m2, that had
been taken for developments. Also, that since the minimum size for
residential plots is 625 m2 …the
Appellant, cannot be allocated an
alternative plot because the option he remained with after the
affected 153 m2 is 872 m2, which
is more than the minimum.

5. The Land Tribunal
dismissed the appeal and the Appellant has appealed to this Court.
His grounds are as follows;

6. The Appellant
complains, that the Court, a quo, ignored certain legal submissions,
that he made, he mentions sections of the
tribal land Act, which he
says he quoted @ the hearing, particularly section 33 of the said
Act.

7.

7. The Plaintiff has
applied for default judgment, which as I indicate was done a month
ago. The Defendant, has not done anything
before coming to court. The
Defendant’s attorney agrees with Plaintiffs submissions that,
where no appearance to defend has
been served, then no proper
appearance has been entered. However, despite there being nothing to
show as evidence of delivery,
Mr Mutoriti, still insists that, upon
investigation he may be able to come up with something.

10. In support of
her submissions, Plaintiffs attorney referred me to the following
cases, First National Bank Limited and Hussain
cc No 4383/2004 where
Lesetedi J. stated as follows;

“It is to be
noted that a defendant only properly enters an appearance to defend
by complying with Order 9 rule 1(3) and (4)
of the High Court rules.
The two subrules require that an appearance to defend is entered
properly by completing and delivering
a memorandum of appearance.
Such delivery is made by way of sending the memorandum of appearance
to the Plaintiff or his attorney
at the Plaintiffs address for
service and by delivering it to the Registrar. Service and filing of
the memorandum of appearance
must therefore be on both the Plaintiff
and the Registrar. Where the memorandum of appearance has not been
served on the Registrar,
there can be no proper entry of appearance.
See also the definition of “delivery” under Order 2 of
the High Court rules”.

and First National
Bank of Botswana vs Tshepo Pelekekae and Others 1525/2000 where
Nganunu C. J. stated that

“By the rules
of the High Court regulating procedure in the courts every court
document requiring to be served must be filed
with the Registrar at
the appropriate registry and also it must be served on all parties to
the action and those who have an interest
in the matter.

Generally therefore
where one talks of service of court documents one has in mind service
to all the parties concerned in the action
together with the
Registrars’.

11. In the case of
First National Bank vs T and M. Engineering and Transport Services
(Pty) Ltd HCCC No 1568/93 Nganunu J. dealing
with compliance with
court rules said;

“A court of
law is entitled to regulate its own procedures to meet the ends of
justice, so that whilst the rules provide for
procedures and time
limits for submitting or taking steps in proceedings, the court is
still entitled to grant indulgencies and
condone certain shortcomings
on good cause shown in the interest of justice. In particular the
court would not lightly wish to
be tied down by the procedures so as
to prevent it taking steps which will lead to a speedy and orderly
determination of an issue.
On the other hand, if it appears that a
party to the proceedings is negligent or is not serious in the steps
it takes in compliance
with the Rules, then such a party should not
be surprised if the court enforced the terms of the Rules
vigorously”.

12. In the case of
R.O Investments (Pty) Ltd v Consolidated Press of S. A, Ltd 1949 (4)
SA 454, the South African

Court, was dealing
with a similar case, but with rules of Court, which are not inpari
materia, with our rules the Court declined
to grant judgment because
in terms of the said rules, “the appointment of an address was
entry of appearance in terms of
Rule 17 even though the Plaintiff had
no notice thereof I say, that the said rules are different from ours
because our rules don’t
talk of appointment of address, but
completing and delivering a memorandum of appearance. The local
authorities cited above clearly
state that, where Plaintiff has not
been served, then Defendant is as good as having not done anything.

13. In view of Mr
Mutoriti’s concession on the position of the law, and in the
absence of anything other than, the default
judgment application
which I being asked to grant, I have no choice but to accede to the
Plaintiff’s application. Accordingly;

a. Judgment is
granted to the Plaintiff in the sum of P928, 929.81.

b. Interest at Prime
lending rate plus 5% per annum calculated from date of summons to
date of final payment.

c. Costs of the
suit.

DELIVERED IN OPEN
COURT AT GABORONE

ON 26th MARCH
2013

R.S Busang
(Judge)

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