What is undisputed, is that the hearing of the appellant's appeal which was attended by both the appellant and the respondent and
their counsel, began on 22nd March, 1999. At the end of that day's hearing, Gittings J. adjourned further hearing to 23rd April, 1999, to enable him to hear evidence of an expert witness on the applicable customary law. At that hearing, neither the appellant
nor her counsel were present. After hearing the expert witness, Gittings J on that day, gave his judgment and made the order already
referred to.
Subsequent to the order of Gittings J., the respondent on 23rd July, 1999, applied to the High Court for an eviction order against the appellant which came for hearing before Lever A.J. on 7th August, 2000. There was, however, no appearance by or on behalf of the appellant whose attorneys had been served with the hearing
notice. Lever A.J. then granted the
eviction order sought. It was not until 23rd April, 2001, when apparently the order of Lever A.J. was about to be executed, that the appellant then successfully obtained ex parte from Collins A.J. a rule nisi for the reinstatement of the appellant's appeal which Gittings J. had dismissed on 23rd April, 1999, for want of prosecution, and for an interim stay of the order of Lever A.J. made on 7th August, 2000, for the eviction of the appellant from the plot in dispute. After hearing the appellant's application inter partes,
Dibotelo J. discharged the rule nisi with costs to the respondent.
In his judgment on this matter, Dibotelo J. took into account the following undisputed facts: that the appellant and her attorney
both knew that the appeal from the decision of the Customary Court of Appeal which was heard by Gittings J. on 22nd March, 1999, had been adjourned for further hearing on 23rd April, 1999, and yet neither the appellant nor her attorney appeared before Gittings J. on that day, or made alternative arrangements
for that purpose; that after hearing further evidence, Gittings J. dismissed the appellant's appeal on that day for want of prosecution;
and that the appellant after the dismissal of her appeal by Gittings J. on 23rd April, 1999, and the eviction order made by Lever A.J. on 7th August, 2000, rather unreasonably and in mala fide, waited till 23rd April, 2001, before applying for the re-instatement of her appeal which Gittings J. had dismissed for want of prosecution and the
staying of the eviction order of Lever A. J. Dibotelo J. having also considered the contents of the appellant's founding and supplementary
affidavits which he found unimpressive, and relying on
the following observation of this Court in Tex (Pty) Ltd v Manica Botswana Civil Appeal 45/96:
"... a litigant seeking a rescission of a default judgment had to establish not only a reasonable explanation for the default,
but also that his application for rescission was bona fide and not prompted by a desire to delay the proceedings and that he had
a bona fide defence to the respondent's claim.",
came to the conclusion, with which I agree, that the appellant's application
was intended to delay as much as possible the implementation of the court
orders of 23rd to April 1999, and 7th August, 2000. As regards the issue
whether the findings of the judgment of Gittings J. was sustainable, Dibotelo
J. expressed, I think, the correct view that he had no jurisdiction to
pronounce on the issue determined by Gittings J. with whom he shared
concurrent jurisdiction.
Dibotelo J. then considered the issue whether the definitive and final judgment and order of Gittings J. rendered the High Court functus officio and if so, whether the only remedy available to the appellant in respect of the dismissal of her appeal for want of prosecution, was
by way of an appeal to the Court of Appeal, something which incidentally, the appellant had commenced but had subsequently, inexplicably
abandoned. Dibotelo J. considered the case of Esther Lesego Botipeng v Healthcare Holding (Pty) Ltd t/a Gaborone Private Hospital Civil Appeal No. 10/2000 in which, this Court upheld the dismissal by Nganunu C.J. of an application for the re-instatement of a matter which had been dismissed
for want of prosecution. Steyn J. A. in that case asserted that:
"A litigant's remedy should he/she seek to challenge an order dismissing the suit is either to appeal, or, when appropriate,
to invoke the remedy provided in Order 48."
Order 48 which deals with the variation and rescission of orders, was according to the record of this appeal, not submitted as being
applicable before Dibotelo J. It must also be noted that the rule nisi granted by Collins A. J. which was the one that came before
Dibotelo J. for inter partes hearing, was in respect of the re-instatement of the proceedings before Gittings J. which he had dismissed
for want of prosecution, and not the variation or rescission of the order and judgment of Gittings J.
Dibotelo J. then also took into account this Court's decision in Oduetse Monnanyana v The State Criminal Appeal No. 8 of 2001 (unreported)
where it was held that:
"The general principle, now well established in South Africa as well as in Botswana, is that once a court has duly pronounced
a final judgment or order it has itself no authority to correct, alter or supplement it. The reason is that it becomes thereupon
functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased."
Apart from Botipeng (supra) Dibotelo J. also rightly observed that the
employment of the word "dismissed" in the phrase: "The Appeal is
dismissed" pronounced by Gittings J., can only mean that the appeal had
been brought to an end. Dibotelo J. then finally concluded significantly in
respect of the order of Gittings J. (that dismissed the appellant's appeal then
before him for want of prosecution) that: "this court is now functus officio,
and I agree with the submission of learned counsel for the respondent that
this court has no jurisdiction to set aside the order made by Gittings J. on the 23rd April 1999. The result is that the rule nisi of the 23rd April 2001 is discharged..."
The only issue that really can therefore be the subject of an appeal to this Court is whether Dibotelo J. was right in discharging
the rule nisi on the basis that the High Court was functus officio. The grounds of appeal, some of which are irrelevant to this issue, filed by the appellant in the appeal before this Court were as
follows:
" (a) that the learned judge a quo fundamentally erred and misdirected himself in holding that the applicant is not entitled
to the rescission of the orders of 23rd April 1999 and 7th August 2000, considering that the order of 23rd April 1999 (which led to the granting of the order of 7th August 2000) was erroneously granted.
(b)
the learned judge a quo erred fundamentally in holding that the bringing of the Application of 21st August 2000 by the Appellant was mala fide in that the Appellant had taken an inordinate amount of time in bringing it.
(c)
)the learned judge a quo erred in placing great adverse significance on the non appearance of Appellant's Attorneys on 23rd April 1999 although clearly the nonappearance was neither intentional and/or due to negligence on the attorneys part.
(d)
the learned judge a quo erred in holding that the court was functus officio and should have instead reinstated the matter so it could
be fully ventilated once and for all at the High Court.
(i) the Court a quo misdirected itself, in matters of law and fact (as appropriate) in holding that the dismissal for want of prosecution
by Justice Gittings presupposed that the matter was finally decided by the High Court and such decision could not be re-heard by
the High Court.
(n) the learned judge a quo erred in law and in fact as appropriate in failing to hold that the Customary Court of Appeal's decision
did not have sufficient evidence or any evidence upon which to grant the Plot under reference to the Respondent herein (FostinaNkwe)."
On the issue whether Dibotelo J. was right in holding that the High Court
was functus officio, Mr. Leburu who appeared for the appellant submitted
that where there had been no appearance in the High Court, that court
should have struck out the case and not dismissed it as Gittings J. did. He
reiterated that since the appellant's attorney had not appeared before
Gittings J. on the 23rd April, 1999, to argue the appellant's appeal, Gittings
J. should not have made any findings on the appeal before him or
determined it, as he did. Mr Leburu further submitted that Dibotelo J. erred
in taking an unfavourable view of the appellant's delay in seeking, inter alia,
the re-instatement of her appeal which Gittings J. had dismissed and the
staying of Lever A.J.'s order of 7th August, 2000, pending the determination
of the re-instated appeal. Mr. Leburu finally submitted, and this is not at all
supported by the record of appeal before this Court, that the appellant had
based her application before Dibotelo J. on Order 48. (1) (a) and (c) of the
Rules of the High Court which empowers the High Court to rescind or vary:
"(a) an order or judgment erroneously sought or erroneously granted without notice to any party affected thereby:
(c ) an order or judgment granted as result of a mistake common to all parties."
Indeed, as Dibotelo J. observed in his judgment:
"In this case, it is not contended on behalf of the applicant that the provisions of Order 48 are applicable, rather it has been
submitted that the court should invoke its inherent jurisdiction and set aside the order of the 23rd April 1999 because it is contended that if the court, on the 23rd April 1999, had known that Counsel for the Applicant was out of the country, it would not have made the order dismissing the appeal
for want of prosecution."
In my view, Mr. Leburu's submissions are inappropriate and unsustainable
with regard to the issue whether the High Court was functus officio or not.
And the submission that the application before Dibotelo J. was based on
Order 48 (1) (a) and (c) is, to put it mildly, misleading.
Relying on the decisions of this Court in Botipeng and Monnanyana
(supra), and taking account of the relevant observations by Dibotelo J. already referred to, Dibotelo J. quite correctly observed
that even if he could stand in for Gittings J. who had by then retired as a Judge, he would still be functus officio.
In my view, the appellant's appeal is without merit. Dibotelo J. came to a correct conclusion and the appeal is hereby dismissed with
costs for the respondent.
It is so ordered.
DELIVERED IN OPEN COURT AT LOBATSE ON THE
DAY OF
JANUARY 2003.
A. M. AKIWUMI (JUDGE OF APPEAL)
I agree
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