Lefatlho v Mathe (Civil Appeal No. 20 of 1995) [1995] BWCA 35; [1995] B.L.R. 453 (CA) (12 July 1995)

In June 1994 the Respondent caused a writ of summons to be issued against the Appellant and at the same time filed a declaration in which she claimed the cession back to her, and transfer rights in respect of, Plot 9242 in Extension 2, Gaborone ("the plot") and costs. In the alternative, she claimed the sum of P70, 000.00 alleged to be damages suffered by her as a result of the Appellant's breach of a certain contract. The contract was alleged to have been entered into on the 5th November 1980 when it was agreed between the Respondent and the Appellant that the former would cede and transfer to the latter the lease rights in respect of the plot. It was further agreed that the Appellant would, in turn, cede and transfer his lease rights in respect of a SHAA plot if and when he was allocated one by the Gaborone Town Council. It is alleged that the Appellant represented to the

2 Respondent that he had applied for a SHAA plot but that the representation turned out to be false. "SHAA" is a reference to the Self Help Housing Agency. The declaration alleges further that it was a part of the agreement that transfer of the lease rights was to be effected as soon as the Respondent obtained an allocation and that, in the event of the Appellant being unable to transfer the lease in favour of the Respondent within a reasonable time, the Appellant would cede back to the Respondent the lease rights transferred to him in terms of the agreement. By reason of the failure or refusal by the Appellant to cede and transfer the lease rights within a reasonable time he became liable to cede and transfer the lease rights in respect of the plot to the Respondent. The Respondent claims in the alternative that she suffered damages in the sum of P70,000.00 as a result of the breach of contract by the Appellant.

The writ of summons required of the Appellant that he should enter appearance within ten days of the date of service of the summons on him which was the 29th June 1994. He failed to do so and, after a month had passed since service of the writ of summons, the Respondent applied for default judgment which was granted by the Registrar of the High Court by an order dated the 29th July 1994. The claim for damages was apparently not pursued so that the order which was made by the Registrar related only to the cession and transfer of the lease rights in respect of the plot and costs.

3 the Respondent and requiring the Appellant to enter an appearance within seven days after rescission of judgment and to plead within fourteen days of the entry of appearance. The Appellant filed a supporting affidavit in which he explained that, when the writ of summons was served upon him, he took it to the University of Botswana Legal Clinic to be dealt with by that organisation. When he was told by his attorney, Mr. Modimo, that a judgment had been taken by the Respondent against him he went to the clinic and found that the student to whom his case had been entrusted was on vacation. The High Court, on the 19th August 1994, confirmed that a judgment had been taken against the Appellant.

In his affidavit supporting the application for rescission the Appellant also stated he had a defence to the Respondent's claim in that all title documents were in his name and that he did not enter into any agreement with the Respondent to the effect that he would apply for a SHHA plot and cede it to the Respondent. The Respondent denies that this was correct and contends that the allegations concerning the Appellant's defence are inadequate to support the application. Again this is not the appropriate stage at which to consider the merits of the dispute on this issue.

4 the papers, it was doubtful whether the Appellant's failure to enter an appearance to defend resulted from a wilful default or from the failure of the clinic to attend to the matter. The reason for dismissing the application was that the papers did not disclose any defence and the Court was under the impression that the application had been made "to delay the implementation of the judgment of the Court."

A Notice of Appeal dated the 22nd June 1995 was lodged with the Registrar of the Appeal Court on the 23rd June which was outside the period of six weeks from the date of the judgment laid down by Rule 13(1) of the Court of Appeal Rules. This point was raised by the Respondent in limine at the hearing before this Court on the 7th July when Mr. Modimo, acting for the Respondent, asked that the appeal should be struck off the roll on this and another ground. Mr. Kgoadi, acting for the Appellant, requested that the Court should condone the failure to file the Notice of Appeal within the permitted six weeks. He did not file a formal written application for condonation with an affidavit from the Appellant, but explained that he had not been aware that the point would be raised until he received the Respondent's Heads of Argument shortly before the hearing before this Court on the 7th July. Mr. Modimo conceded that the Court of Appeal had the power to condone the late filing but contended that a formal application should be filed and that he should be given an opportunity to file affidavits in reply. This would have entailed postponing the appeal to the next session and possibly at the next hearing, a debate concerning the question of whether or not condonation should be granted.

This Court is of the view that, in order to avoid unnecessary costs it would be preferable to deal with the question of condonation forthwith without requiring the Appellant to go through the process of preparing a formal application. It is apparent that the Appellant was dissatisfied with the order of Nganunu J. and wished to appeal against it. He had no money and went to the Registrar of the High Court who approached Mr. Kgoadi to handle the matter on an in forma pauperis basis. A letter was written by the Registrar of the High Court on the 19th June to the Appellant care of Kgoadi and Partners dealing with the question of the steps to be taken to obtain leave to appeal as a pauper and ultimately the appeal was noted on the 23rd June. Though out of time it was only a few days late and it would not be in the interests of justice to decline to exercise the inherent power of this Court to control its own proceedings and so prevent the Appellant from appealing against the decision of the High Court which, as far as he, a pauper, is concerned, involves an asset of substantial value. The Court condones the late noting of the appeal and it is therefore properly before this Court.

On the 23rd June 1995 Kgoadi and Partners filed an application in the High Court asking for an order staying execution of the judgment by default pending the finalisation of unable to pay fees which would enable him to prosecute his appeal and permitting the Appellant to prosecute his appeal in forma pauperis. Attached to the notice of motion was an affidavit by Mr. Kgoadi stating that the Appellant did not have sufficient funds with which to prosecute the appeal and pointing out that he was indebted to the firm in an amount of P2,100.00 which was not recoverable and that his property, which was the only property which he had, was the subject of the default judgment. With the application was a certificate probabilis causa by Mr. Kgoadi. A Notice of Appeal was also attached to the Notice of Motion.

"30(1) If an appellant alleges that he is unable to pay the fees on appeal, the Registrar of the court below, upon application being made for that purpose, shall enquire into the means of the applicant and for that purpose may require the applicant to give evidence on oath either in person or by affidavit.

(2)

has a reasonable probability of success, the Registrar of the court below shall forward to the Registrar the record of appeal, the legal practitioners's certificate and a statement of the proportion of the fees which the applicant is able to pay. No fees other than those in such statement shall be payable by the applicant. The Registrar shall thereupon assign a legal practitioner to the applicant. Such legal practitioner shall not take any fee from the applicant for anything done in the conduct of the appeal.

The "Registrar" is the Registrar of the Appeal Court (Rule 2) . At present the Registrar of the High Court (the "court below") and the Registrar of the Appeal Court is the same person so that where the Rule requires delivery of documents by the Registrar of the High Court to the Registrar of the Appeal Court this would merely involve the exercise of filing the documents in the file of the Appeal Court.

The Rule seems to contemplate that the approach to the Registrar of the High Court should be made after a Notice of Appeal has been lodged because it refers to "an appellant" and not to a person intending or wishing to appeal. No time is laid down within which the application must be lodged after Notice of Appeal has been filed.

(c)

The Registrar of the High Court is then obliged to decide whether the appellant has "sufficient means to finance his appeal." It is clear from the provisions of sub-rule (3) that he must also consider whether any relief should relate to all fees or only a proportion of them, and in the latter case what proportion the appellant is able to pay and, presumably, remains obliged to pay.

(f)

If the investigations of the Registrar of the High Court satisfying him that the appellant does not have sufficient means to finance his appeal in whole or in part, he refers the case to a legal practitioner "for consideration". The purpose of this is not further to investigate the means of the appellant but in order

(h) The Registrar of the High Court sends the certificate together with the record of appeal and a statement by him of the purportion of the fees which the appellant is able to pay to the Registrar of the Court of Appeal. If the Registrar of the High Court is of the view that the appellant is not able to pay any portion of the fees he should say this in his statement.

In the present instance it would seem that the steps taken were not in all respects in accordance with what is set out above. What appears to have happened is that the question of whether the appellant had the means to finance his appeal was dealt with by the Registrar of the High Court after the matter had been referred to Mr. Kgoadi for certification probabilis cause. The application for relief was addressed to the High Court and not the Registrar of that Court. The evidence of the means of the appellant was contained in an affidavit by Mr. Kgoadi and there was no affidavit by the appellant himself. (It

10 is possible that he gave viva voce evidence under oath but this is not reflected in the record and was not stated by Mr. Kgoadi before this Court) . There also appears to be no statement by the Registrar of the High Court concerning the proportion of the fees which the appellant is able to pay.

For the Respondent it was contended that the irregularities in the application for leave to appeal in forma pauperis were such that Mr. Kgoadi should not be permitted to appear before this Court. I am not satisfied that this is so in the special circumstances of this case. I think that this court may assume that the Registrar of the High Court considered the affidavit of Mr. Kgoadi and, although he may not have done so prior to sending the documents for certification probabilis causa to Mr. Kgoadi, he would undoubtedly have read the latter's affidavit which, though relatively short, did make out a case for relief. The affidavit contained a statement that the appellant was indebted to the firm of Kgoadi & Partners in an amount of P2,100.00 which was incurred in representing the appellant in the High Court and which is still owing with no reasonable prospect of recovery. The statement concerning the property of the appellant is strictly hearsay, but in proceedings of this nature there is probably no need to adhere strictly to the hearsay rule. If a hearsay statement is in the circumstances likely to be reliable there is no reason why the Registrar of the High Court should not accept it. The same applies to the opinion expressed by Mr. Kgoadi that the appellant is a pauper without sufficient funds to prosecute his appeal. It is a statement by an officer of the High Court who is likely to know the true position especially as

11 his firm is a creditor to the extent of P2,100.00 which it is unable to recover. The absence of any statement concerning the proportion of the fees, if any, which the appellant is able to pay does present a problem though it appears likely that, being a married man with five children, he cannot really be expected to be able to pay any of the fees of the appeal and that the Registrar of the High Court, by not specifying any proportion of the fees which the appellant was able to pay, intended that he should not be responsible for any fees.

I am therefore of the view that, though there appear to have been a number of respects in which the procedure adopted in this case did not comply with the provisions of Rule 30, they are not of sufficient materiality to render the application a nullity and so affect the right of Mr. Kgoadi to represent the appellant in this court nor do they affect the validity of any permission to the appellant to proceed in forma pauperis in respect of all fees before this court.

Mr. Modimo asked the court to postpone the hearing of the appeal until the session of the Court of Appeal in January 1996. Mr. Kgoadi conceded that this had to be done because, for various reason, Mr. Modimo had not had an opportunity properly to prepare his case and file heads of argument on behalf of the Respondent on the merits of the appeal. Both Mr. Modimo and Mr. Kgoadi did, however, ask that the other party should be ordered to pay the costs of the hearing on the 7th July. A problem in this case is that the appeal was set down very shortly after judgment was delivered in the High Court. The heads of argument of the appellant were filed late and those of the Respondent were handed

12 in only on the day of the hearing of the appeal. They did not deal with the merits. There appear to have been some difficulties in regard to the person who was to represent the Respondent and this caused a problem in communication between the attorneys. In all the circumstances I am of the view that the costs of this session's appearances should be costs in the appeal.

I agree.
I agree.
W.H.R. SCHREINER [JUDGE OF APPEAL]
P.M. TEBBUTT [JUDGE OF APPEAL]
LORD W. COWIE [JUDGE OF APPEAL]

Botswana: Court of Appeal

Lefatlho v Mathe (Civil Appeal No. 20 of 1995) [1995] BWCA 35; [1995] B.L.R. 453 (CA) (12 July 1995)