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Sechele v The Attorney General N.O. and Another (Civil Appeal No. 32 of 202) [2003] BWCA 12 (3 January 2003)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Civil Appeal No. 32 of 2002 High Court Civil Cause No. 2516 of 2000
In the matter between:
KEALEBOGA SECHELE        Appellant
and
ATTORNEY GENERAL (representing the       First Respondent
Minister of Local Government)
and
KGARI BONEWAMANG SECHELE         Second Respondent
Mr. D. Bayford for the Appellant
Mr. M. Chamme with him Miss Taunyane and
Mrs Mane we for the Respondents
JUDGMENT
CORAM: KORSAH J.A. ZIETSMAN J.A. PLEWMAN J.A. MOSOJANE A.J.A. KIRBY A.J.A.
PLEWMAN J.A.
1. This appeal relates to matters which, in a manner which will
be explained, are of communal and tribal concern to the
Bakwena people. The Chieftainship Act Cap 41:01 (the Act)
is the instrument by which the institution of chieftainship,
which is with all tribes governed by the general or

customary laws of such tribe, has been accommodated in the legal structure of modern day Botswana. It is with the provisions of this Act that this case is concerned.
Certain provisions of the Act are of particular relevance.
Section 4 (1) (a) provides that a chief is an individual who
"has been designated as a chief in accordance with
customary law by his tribe assembled in the kgotla" (There
is an additional requirement - namely that the individual be
"recognized" as chief by the minister - but this does not fall
for consideration in this appeal). Kgotla is defined (in
section 2) as "the customary meeting of a tribe or a tribal
community or any portion thereof for discussion in
accordance with customary law of matters of tribal or
communal concern". Section 25 of the Act (perhaps
upon the adoption of tribal customary law in these
matters) provides as follows:
"25 (1) Notwithstanding any provision of any
enactment to the contrary, no court shall have jurisdiction to hear and determine any cause or matter affecting chieftainship.
(2) For the purposes of this section "cause or matter affecting chieftainship" means any
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cause, matter, question or dispute relating to any of the following -
(a)    
the designation of any person as a Chief or the claim of any person to be designated as a Chief: or
(b)    
recognition, appointment or suspension of a person to be a Chief."
What underlies the matter is a question of who is entitled to succeed the late Neile (or Neale) Sechele as Paramount Chief of the Bakwena. But in a more direct sense, a procedural dispute has arisen upon the determination of which the manner and forum for a debate on any dispute concerning the chieftainship depends and it is to that issue that I now turn.
It is necessary first to explain how the matter comes before this Court. In 2000 an application was initiated on notice of motion by Edwin Kgosikwena Sebele against the present respondents (the application). This was Misca 576/2000. Seemingly at about the same time the present matter, a civil action (the action), was commenced. On 4/5/2001 the application and the action were consolidated (How this could be done need not be discussed) but were
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later again separated. The application was argued before a full court and on 4 October 2001 judgment (in the form of a ruling) was given therein by the Chief Justice, Dibotelo J and Lisimba J concurring.

At the hearing the court meru motu raised the issue of its jurisdiction in the light of section 25 of the Act. The court held that the section was plain and further that section 25 was not (as had been argued) contrary to the provisions of section 95 (1) of the constitution. It was held further that an "ouster clause" (as it has been termed) such as section 25 was to be narrowly construed and reference was made to the "limited grounds" upon which courts notwithstanding an ouster clause may nonetheless assume a jurisdiction to review an act or decision made. Reference was made in this connection to the judgment of this Court in Leipego v Moapare and Others 1993 BLR 229. I will return to consider this judgment but need only note at this point the fact that the court also held that "unless therefore the applicant can bring his case as one of review, we are bound to say that the Court's jurisdiction is
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excluded by the words of section 25 of the Act". Having so held the court went on to consider whether it could in any event because of the lapse of time consider a review and held that the lapse of time was too great for a review to be considered. To follow this it is advisable that I briefly outline the facts (which were agreed facts in the application). The judgment in the application has been included by the parties as part of the record of the appeal so that reference to the facts therein may also be justifiable on that basis though it is in all the circumstances unnecessary to debate that question. The facts are indeed also, by and large, the facts averred in the particulars of claim in the present case.
The factual situation was (and is) the following. From 1963 to 1970 Neale Sechele held the office of Paramount Chief of the Bakwena Tribe. After his death, though only in September 1978, a meeting of the members of the tribe (said by the respondents to be a properly convened kgotla and by the applicant in the application and by the appellant in the action to have been an improperly constituted
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meeting) was held. The second respondent in this appeal -though then only four years old - was designated as Paramount Chief of the Bakwena. Because of his age a regent was appointed - at that time Mack Sechele and later the applicant in the application. The plaintiff in the action is a claimant to the position of chief - claiming through his father who is now deceased. With that explanation it can be understood why the court in the application held that the question of the "designation" of the second respondent in this appeal as Paramount Chief could not, because of the lapse of some twenty two years, be reopened. After the decision in the application the action continued. Two allegations are made therein which formed the basis of the appellant's contention that the ouster clause is excluded, and to ensure that the proceedings not be considered to be a review procedure the prayers in the particulars of claim have been framed as prayers for "declarators". Appellant's arguments have been advanced on the basis of these propositions.
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A slight diversion is necessary. Dibotelo J. again sat to hear the exception and the argument on the special plea. An application for his recusal was made on the basis of his having sat in the application. He declined to recuse himself. He then heard argument on the merits and upheld the exception to the jurisdiction of the court on the basis of the provisions of section 25. Having so held he nonetheless recorded his findings on the Special Plea which raises the delay (to which reference has been made) as a bar to the action. This it seems clear was done for the benefit of this court against the event that his decision on jurisdiction should be overturned. In the notice of appeal all three of Dibotelo J's decisions are attacked but in argument the ground of appeal based on the refusal of the recusal application was abandoned. What remains therefore is the other two decisions.
It is quite obvious that the particulars of claim have been framed in an attempt to avoid the probable consequences of applying for a review in application proceedings. In paragraph 6.3 of the particulars of claim it is alleged that at
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the 1978 meeting one Mack Sechele "designated" the second
respondent (in the appeal) as the Paramount Chief of the
Bakwena Tribe. In paragraph 6.4 it is alleged that that
designation was improper because of irregularities relating
to the meeting and in paragraph 7 it is alleged that Mack
was "activated by bad faith" in designating the second
respondent as chief. In prayer a) and b) declarators are
sought to the effect that "the Bakwena Chieftainship is
vacant" and that "the purported designation (of the second
respondent) as Paramount Chief in 1978 was irregular and
accordingly null and void". In paragraph 8 it is alleged that
the Minister of Local Government (who is represented in the
proceedings by first respondent) was aware of a contention
that second respondent "is not the rightful successor to the
Bakwena chieftainship and of the claim by appellant to the
chieftainship". It is then alleged in paragraph 8 the minister
"failed, refused and or neglected to appoint a Judicial
Commission to enquire into the matter". This relates to the
provisions of section 7 of the Act to which reference will
presently be made.       It is further alleged that
notwithstanding what is said in paragraph 8 the minister
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"caused a meeting to be convened at the Bakwena kgotla on 30th June 2000 whereat she purported to affirm the second respondent as a successor to the Bakwena Chieftainship such being an exercise in bad faith". On this basis a declarator is sought in prayer d) ii) that "the failure of the minister to ... appoint a Judicial Commission ... is an improper exercise of discretion". To understand this one must have regard to section 7 which provides that if any question arises as to whether (inter alia) a person designated under section 4 (2) is, under customary law, the rightful successor to the chieftainship the minister "may" appoint a judicial commission to enquire into the matter.
While one could perhaps point to other deficiencies in the pleading the first question which arises is whether the two assertions (that is that Mack Sechele was actuated by bad faith and that the minister was guilty of exercising her discretion in bad faith) are in themselves sufficient to render section 25 inapplicable. In the decision of this Court in Leipego v Mopare 1993 B.L.R. 229 this Court was concerned with a dispute relating to a sub-chief - a matter dealt with
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in section 19 of the Act. The lower court had held (without
it seems sufficient consideration of an application for an
amendment to the application in question) that section 25
deprived the High Court of its jurisdiction. What this Court
then said was, quoting Innes CJ in the case of Union
Government v Fakir 1923 AD. 466, that section 25 did
not necessarily serve to exclude the courts jurisdiction. The
quotation from Innes CJ is as follows:

"(the words of a statute) does not exclude the jurisdiction of the court under every circumstance. Cases may be conceived in which interference would be justified. If there were a manifest absence of jurisdiction or if an order were made or obtained fraudulently a competent court would be entitled to interfere and would interfere. It is difficult to imagine such cases occurring in practice but they are not impossible"
This Court then dealt with an argument (on the facts) that
what a minister had done under section 19 was to oblige the
people of Hukuntsi (the tribal area concerned) "to go
through an election process which is foreign to the laws and
customs of the people." The Court rejected the argument
that the minister had acted in such away and found that
she had acted correctly in terms of section 19 of the Act. It
therefore in fact rejected the notion that it could interfere
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in the process and upheld the lower court's decision that its
jurisdiction was ousted by section 25. It can then, in my
view, not be said to have authorised or created a general
rule such as the argument on appellant's behalf seems to
suggest, namely that an allegation of "bad faith" per se
would exclude an ouster clause. All that this court did was
to keep open the possibility of an exceptional case such as
was envisaged by Innes CJ. A careful reading of Innes'
judgment too shows that there is no rule that a mere
allegation of bad faith or even fraud gives a court
jurisdiction. The Fakir case dealt with a provision in an
immigration act which limited the jurisdiction of a court to
review or quash "any proceedings, act or order" of the
minister or an Immigration Board under the Act. In
addition to the passage already quoted it should be noted
that Innes CJ held at page 469 as follows:

"We are bound to give effect to the clear directions of the statute. But wide though the language may be it does not exclude the jurisdiction of the courts under every circumstance"
These words are then followed by what has already been
quoted and the learned Chief Justice concluded by
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examining the arguments advanced in relation to the
wording of the statute. In this regard he said:

"The contention advanced on behalf of the immigration authorities is far too wide. The fact that an order purports to be done under the Act will not exclude the interference of the courts where there was no jurisdiction to deal with the matter at all or where it has been dealt with not bona fide but fraudulently."
The circumstances which Innes CJ considered might,
despite an ouster clause, allow interference by a court were
thus far removed from anything suggested by the
particulars of claim in the present case. What was being
suggested was the fraudulent exercise, for example, of a
statutory power (which he stressed would have to be alleged
and proved) and that the court would not act where fraud or
an absence of jurisdiction was not shown. It certainly does
not follow from that that where a bald allegation is made of
bad faith an ouster clause, howsoever made, is ousted. One
would in every case be obliged to consider the statute and
its purpose. In this case the purpose of clause 25 is not
to deprive individuals of rights. It is to ensure that tribal
custom and the institution of the kgotla are to govern
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questions of the designation of chiefs and to establish the forum to determine such matters.
I should add that I have also considered certain English authority cited on appellants behalf but find nothing therein to dissuade me from the above view. There can be no doubt that the action is concerned with the designation of a person as chief and that this is a cause, matter or question in respect of which the High Court's jurisdiction has been excluded in favour of the customary procedures.
The form of the prayers cannot change this position and the arguments raised in support of the proposition that they do cannot be upheld.
In my view Dibotelo J was correct in holding that the High Court did not have jurisdiction and that the exception had to be allowed.
While counsel also addressed this court on the effect of the time delay it is, in the circumstances, unnecessary to consider that aspect though obviously it would be a
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consideration relevant to an examination not only of the minister's conduct but also, no doubt, on appellants assertion of a right. I however do not consider it necessary to enter upon the debate. It would not be competent for this Court to do so. There are also other issues which were fully debated before us which it is now inappropriate for this Court to address. These include the question of whether, in what in substance is a review proceeding, it is appropriate or, in the light of Order 61, even permissible to bfcing the present proceedings by way of action. These matters must therefore be left open.
In the result the appeal is dismissed. Appellant must pay the costs.
DELIVERED IN OPEN COURT AT LOBATSE ON 30th DAY OF JANUARY 2003.

I agree,

C PLEWMAN JUDGE OF APPEAL
K. R. A. KORSAH /JUDGE OF APPEAT


I agree,
N. W. ZIETSMAN JUDGE OF APPEAL

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I agree,
JZ. MOSOJANE ACTING JUDGE OF APPEAL


I agree,
I.S.KIRBY ACTING JUDGE OF APPEAL

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