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Leeba (Pty) Ltd. v First National Bank Limited and Others (Civil Appeal No. 42 of 1996) [1997] BWCA 15; [1997] B.L.R. 134 (CA) (28 January 1997)

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1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 42/96
In the matter between:
LEEBA (PROPRIETARY) LIMITED      - Appellant
and
FIRST NATIONAL BANK OF BOTSWANA LIMITED - 1st Respondent
and
BOTSCATHY (PROPRIETARY) LIMITED  - 2nd Respondent
and
DEPUTY SHERIFF OF THE HIGH COURT         - 3rd Respondent
Advocate S.T. Pilane for the Appellant Advocate B. Spilg S.C. for the Respondents
JUDGMENT
CORAM; Schreiner, J.A. Lord Cowie, J.A. Lord Allanbridge, J.A.
Schreiner, J.A.:
This matter came before Dibotelo Ag.J. who dismissed the
application with costs and the Appellant now appeals. The
application concerned the sale in execution of a piece of land,
Lot 1126 Jwaneng Extension 2 which I shall call "the property".
The order sought by the Appellant was the following:-
"1. Setting aside the sale in execution
held on Monday 3rd April, 1995, pursuant to
which Lot 1126 Jwaneng was sold in execution
pursuant to a judgment obtained in this
Court against the Applicant [Leeba

2 Proprietary Limited] and Dawn Merapelo Ketsitile under case No. 2278/94.
2.       Ordering that the 1st Respondent [First
National Bank Botswana Limited] and such
Respondents as would oppose this application
to pay the costs of the application, jointly
and severally.
3.       An order directing the 2nd Respondent
[Botscathay Proprietary Limited] to sign all
documents and do all things necessary to effect the transfer back into the name of the Applicant of immovable property being Lot 1126 Jwaneng Extension 2, and in the event of its failure to do so within a time to be fixed by this Court, an order authorising Attorney Vincent Kebaiphe Seema to sign all documents and do all things necessary to give effect to the transfer into the name of the Applicant of Lot 1126 Jwaneng Extension 2.
4.       Granting the Applicant alternative relief."
The sale in execution referred to in the prayer set out above had taken place on the 3rd April 1995 following a judgment obtained by the First Respondent in an action against the Appellant and one Dawn Merapelo Ketsitile. It is not necessary to go into detail concerning the original proceedings. Suffice it to say that the First Respondent obtained default judgment against the

3 Appellant and Ketsitile for P61,688.34 and P56,000.00 respectively. The property was duly attached pursuant to a writ of execution. No objection is raised to the proceedings up to this point.
Notices of a sale in execution to take place on the 3rd April
1995 were published as follows:-
On the 15th March 1995 in the Midweek Sun;
On the 17th March 1995 in the Botswana Daily News; and
On the 17th March 1995 in the Government Gazette
If the minimum period for advertisement before the sale on the 3rd April is calculated in accordance with calendar days, it is clear that these publications allowed the passing of more than fourteen days before the sale. If however the calculation of the period is made with the exclusion of Saturdays, Sundays and Public Holidays, it would fall short of the fourteen day period laid down for a notice of sale in Order 52 Rule 12 Sub-rule 9.
At the hearing of the appeal the Court, which had formed a prima facie view that the phrase "not more than 14 days before the date appointed for the sale" fell to be calculated with reference to calendar days, asked Counsel to address argument only on this issue. If the prima facie view of the Court was, at the end of the argument, converted into a final opinion, the appeal would fail. If, on the other hand, it was found that the proper method of calculation involved the use of court days (i.e. excluding Saturdays, Sundays and Public Holidays) and the notice of sale

4 which was given was thus too short then a number of other points would have to be canvassed.
In the High Court it would appear that it was common cause that the proper method of calculation involved only days which were not Saturdays, Sundays or Public Holidays and the case went off on the question of waiver of the right to object to the sale mainly evidenced by the failure of the Appellant to commence proceedings to set aside the sale for a period of about one year. The learned Judge said:
"For their part the Respondents admit in argument that at the most one of the publications was two days short of the 14 clear day period required before the sale in terms of Order 52 Rule 12."
We do not think that an admission or concession of this nature in the course of argument can preclude a party from putting forward a conflicting argument in the Court of Appeal and this contention was, rightly in my view, not put forward by Counsel for the Appellant in this Court. (The Counsel who appeared before us were not those who appeared before the High Court.)
Section 28 of the High Court Act Cap. 04:02 gives the Chief Justice power to make rules of court prescribing "anything which, under this Act, may be or is to be prescribed and generally for the better carrying out of the purposes of this Act, " and without prejudice to the generality of this provision the rules may

5 provide for "prescribing and regulating the proceedings of the Sheriff, Deputy Sheriffs and other officers of the Court;" (Subparagraph n) .
The rules of the High Court came into operation on the 1st January 1970. They have been amended from time to time and in particular, the present Order 71 is not to be found in the original set of rules.
Order 1 Rule 3, the original definition part of the Rules,
provides:-
"        unless the context otherwise
indicates -      "court
day" means any day other than a Saturday,
Sunday or public holiday, and only court
days shall be included in the computation of
any time expressed in days prescribed by
these Rules or fixed by any order of
court    "
It is to be noted that the phrase "unless the context otherwise indicates" gives the reader greater freedom to depart from the definition meaning than the possibly more usual formula "unless the context otherwise requires." I think that it is significant that the Rules are partly concerned with matters involving court procedures and partly with matters not connected with courts. The activities of the sheriff and his deputies in selling property concerns the Court only marginally. In essence it is

6 a purely administrative process and, to this extent, the context indicates a meaning of "day" different from that set out in the definition of "court day" in Rule 3 of Order 1. The use of the word "court" must, after all, be given some significance and, in the context of a purely administrative set of procedures, is perhaps out of place.
At some time after promulgation of the original Rules of Court (it would seem in 1989) Order 71 was introduced. It did not have a definition of "day" and was not, it would seem, concerned with court days as defined in Order 1 Rule 3. It refers to an "excluded day". "Excluded day" has the opposite meaning to "court day" as used in Order 1 Rule 3 and "excluded" day is used in Order 71 in contrast to "day" or "days". Thus the word "day" in this Order cannot, have the meaning of "court day" because it would give rise to an absurdity caused by the contrast between the defined meanings of "court day" and "excluded day".
What effect, if any, did the introduction of Order 71 have upon the meaning of "days" in Order 52 12 (9)? Before the introduction of Order 71 there may have been doubt as to whether in the context of the non-court character of the activities of the Sheriff and his deputies it would be appropriate to apply the definition of court days to them when periods of time come to be calculated. The draughtsman of Order 71 framed it in a manner which ignored the latter part of the definition of "court day" in Order 1 Rule 3. In Order 71 the word "day" or "days" must mean calendar day or days because, in making provision for the

7 methods of computing time for the purposes of the Rules, judgments, orders or directions for doing any act, it introduced the notion of the "excluded" day which had to be considered, inter alia, in the computation of a period stated in days and the beginning and ending of such a period. In making these provisions the Order uses the word "day" in various places and directs that "excluded" days shall be deducted or disregarded in various situations. "Excluded" day means "a Saturday, a Sunday or a public holiday." For Order 71 to have any meaning the word "days" whenever it appears in that Order in relation to a period of time must mean calendar days. Otherwise it would not be capable of any interpretation which would give it sense.
It may be arguable that the effect of introducing the term "excluded" day into Order 71 was impliedly to repeal that part of the definition of "court " day which declared dealt with the term "day" and which declared that "only court days shall be included in the computation of any time expressed in days prescribed by these Rules or fixed by any order of court." There is an inherent contradiction between Order 1 Rule 3 and Order 71 because of the introduction of the notion of the "excluded day". If this is so, there may be something to be said for holding that Order 31 was impliedly repealed on the introduction of Order 71 and the notion of the "excluded" day.
I think however that consideration of the context of Order 52 12 (9) would yield the same result and is the safer way to approach the matter. I have already referred to the broad difference in

8 the Rules of the High Court between matters dealing with the courts and their practices and procedures closely connected therewith, on the one hand, and administrative activities of the sheriff and his deputies on the other. In the former group of provisions the concept of a "court" day is not inappropriate whereas in the latter the notion of a "court" day is somewhat foreign because of the relatively remote connection between attachments and sales in execution and the proceedings of courts.
If there is considered against this background the necessity of
referring to Order 71 where "days" means calendar days in order
to determine when the period of fourteen days begins and ends and
what days are to be counted in the calculation, it seems that the
context clearly indicates a meaning different from what appears
in the definition of "court day" in Order 1 Rule 3. As pointed
out in Halsbury Laws of England (Hailsham Ed.) Vol.31 par. 591 -
"A definition section does not necessarily apply in all the possible contexts in which a word may be found in a statute. If a defined expression is used in a context which the definition will not fit, it may be interpreted according to its ordinary meaning."
This passage was quoted with approval in C.I.R. v. SIMPSON 1949
(4) SA 678 (A) at 692 in the judgment of Watermeyer C.J. It is
to be noted that this passage is to apply even if qualifying
phrases such as "unless the context otherwise indicates."
During argument reference was made to two cases from South Africa where a similar provision was dealt with. In FIRST CONSOLIDATED LEASING CORPORATION v. THERON AND OTHERS 1974 (4) S.A. 244 (T)

a single Judge expressed the view that with reference to such a provision calendar days were intended to be included in the calculation because the rule "had nothing to do with procedural steps in connection with a law suit."
In RONTGEN v. REICHENBERG the learned Judge expressed the
opposite view and said -
"when one deals with a word as defined in one Act there is very little scope for legislative intention as an aid to interpretation as it is normally applied in the construction of statutes because in that very piece of legislation its meaning is inevitably fixed. Only if the context in a particular passage or section of that Act contradicts that meaning, may it be departed from for the purpose of that section."
The above statement does not in my view set out the correct approach to definition provisions in an enactment. The statement of Watermeyer C.J. in Simpson's case (supra) in which he adopts a passage from the second edition of Halsbury makes it clear that a definition provision in an enactment sets out only a prima facie position. Especially is this so when the definition is qualified by phrases such as "unless the context otherwise indicates."
Section 29 of the Interpretation Act Cap. 01:04 directs in subsection 1 that an Act or Instrument shall be construed as a whole, and sub-section (2) provides.-
"(2) Where provisions of an Act or instrument are inconsistent and the inconsistency cannot be resolved by construing the enactment as a whole, a

10
provision which appears later in the enactment shall prevail over an earlier provision."
I do not think that it is necessary to rely in this judgment upon this provision of the Interpretation Act because I am satisfied that any apparent inconsistency can be resolved by a correct construction of the Rules as a whole. In any event if the terms of sub-section (2) are invoked, it would support the conclusion to which this Court has come purely on the basis of the proper construction of the relevant parts of the statute and the context of its use.
I am therefore of the view that in Order 52 12 (9) the period before which advertisement of the sale must take place falls to be computed by taking into account all days whether or not they are Saturdays or Sundays or Public Holidays.
If follows that in the present case the advertisements were published outside the minimum of fourteen days required by the sub-rule and were therefore not out of time. The appeal should on this ground be dismissed. This court has not required to consider other points such as possible waiver or acquiescence.
After the hearing of the question which is decided above argument was called for on the assumption that the appeal was to be dismissed. It was argued on behalf of the Appellant that the Respondents in the Court below had conceded in argument that the minimum period for publication was to be calculated by reference

11 to court days. There was thus no issue concerning this matter in the Court a quo which made its decision based upon waiver. We consider that in these circumstances it would be equitable to give the Appellant some benefit from the failure of the Respondents to raise the question in the court below because the learned Judge a quo might well have come to the same conclusion as this Court did. In all the circumstances it is felt that no order should be made in regard to the costs of appeal. The order of the High Court in regard to costs should stand as the merits of the judgment on the issue of waiver have not been canvassed in this Court. The order will be -
1. The appeal is dismissed.
2 . In the Court of Appeal each party-is to bear its own costs.
Delivered in open court this 28th day of January, 1997.
W.H.R. SCHREINER JUDGE OF APPEAL
I agree.        
LORD W.L.K. COWIE JUDGE OF APPEAL
I agree.
LORD W.I.S. ALLANBRIDGE JUDGE OF APPEAL

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