SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 2005 >> [2005] BWCA 5

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Attorney General v Manica Freight Services (Botswana) (Pty) Ltd (Civil Appeal No. 16 of 202) [2005] BWCA 5; [2005] 1 B.L.R. 35 (CA) (27 January 2005)

PDF of original document.PDF of original document

.RTF of original document

IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Civil Appeal No. 16 of 2002 High Court Civ. Trial No. 1332 of 1999
In the matter between:
ATTORNEY GENERAL         Applicant
and
MANICA FREIGHT SERVICES (BOTSWANA)       Respondent
Mr. M. Chamme for the Appellant
Mr. J. Carr Hartley for the Respondent
JUDGMENT
TEBBUTT. J.:
The background to this application for leave to appeal to this Court against certain judgments of the late Mr. Justice Chatikobo, whose early untimely death is lamented, reveals an unhappy litany of incomprehensible errors, incompetence, negligence and disregard of the rules of this Court by and on behalf of the applicant. Although some of that background has been set out in earlier judgments of this Court on certain aspects of this matter, it is necessary for an appreciation of the reasons for the decision to which I have come in regard to this application to set out the background in detail once again.

It will at once be apparent that this matter has had a long and unhappy history, the dispute giving rise to it having arisen as far back as 1997.
On 27 March 1996 the respondent, to whom, where convenient, I shall also refer as Manica, and the Director of Supply of the Government of Botswana for whom the applicant, the Attorney General, is the legal representative, entered into a service agreement whereby Manica was to act as customs clearing and forwarding agent for Government purchases overseas shipped through South African sea and airports and, in particular goods required for a unit of the Ministry of Mineral and Water Affairs (the Ministry) called the North-South Water Carrier project. This unit was responsible for a project of building a dam in the north, and piping water from it to the south, of Botswana ("the project"). The applicant in September 1999 instituted an action against the respondent claiming from it the sum of PI 628 646.00 which the applicant alleged it had paid to the respondent on the basis of a fraudulent misrepresentation that it had rendered services to the Government between September 1996 and August 1997 for which it knew it was not entitled to payment. Alternatively, the applicant claimed the said amount on the basis of unjust enrichment. There was also a minor claim for P4 013.38 which is not germane to this judgment.
2

The basic allegation in respect of applicant's main claim is that Manica was only entitled to payment by the Government for its services in respect of goods from outside what is known as the Common Customs Area. It had, however, submitted invoices for payment in respect of goods sourced inside the Common Customs Area which it knew it should not have submitted and had thus fraudulently obtained payment from the Government of the said sum of PI 628 646.00 or had been unjustly enriched in that amount. It is unnecessary to set out the particulars of claim in any further or greater detail.
On 29 June 2000 the respondent filed a plea to the claim and at the same time filed a counterclaim in which it claimed PI 560 939.00 from the applicant. It is necessary to refer in some detail to both the plea and the counterclaim as the averments in them, and the paragraphs in which they are made, are the essential factors in the background to, and the substance of, this application. I will not set out the averments verbatim but will give the gist of them.
In response to the averment that it was not entitled to charge fees and require payment for services in respect of goods sourced inside the Common Customs Area, the respondent averred that it had been appointed as the Ministry's customs clearing and forwarding agent for the project (attaching a letter from the aforesaid unit in support thereof)
3

and it had, on the written instructions of the Director of Supply, rendered its services in respect of goods emanating from South Africa, which was inside the Common Customs Area (again, attaching a letter from the Director of Supply in support thereof).
These averments were set out in paragraphs 5.1 and 7 of the plea. In paragraphs 10.1 and 11.1 of the plea, the respondent averred that it had rendered services to the applicant and was, on applicant's specific instructions and by agreement, entitled to payment in respect of such services, which were rendered in terms of its appointment aforesaid. It had, it averred, done so from September 1996 to January 1998 and had submitted invoices in respect of them totalling P3 175 715.00 of which applicant had paid only P 1614 776.00. These averments appears in paragraphs 12.1 and 15.1 of the plea. Respondent claimed the alleged unpaid balance of PI 560 939 in its claim in reconvention.
I turn then to the latter. Paragraph 1 thereof sets out who the parties are. Paragraph 2 reads as follows:
"Defendant (i.e. respondent) refers to paragraphs 3, 5.1, 7, 10.1, 11.1, 12.1 and 15.1 of its plea and prays that the allegations therein the regarded as if specifically incorporated herein."
4

It will, of course, be appreciated that these paragraphs are those I have referred to containing the averments that it had rendered the services for which it was claiming payment on the written instructions of the Director of Supply.
On 13 September 2000 the applicant's plea to the claim in reconvention was filed. Paragraph 1 thereof reads:
"Ad Paragraph 1 and 2
The contents therein are admitted." Once more it will be appreciated that by this admission, the applicant was admitting all the respondent's allegations entitling it to payment of the sums claimed by it. The plea in reconvention, however, went on to deny that respondent had duly and in terms of its appointment performed the services set out in the invoices rendered by the respondent and, while admitting having paid the respondent the sum of PI 614 776.00, denied that respondent was entitled to payment of the sum of P3 175 715.00 and thus to the balance of PI 560 939.00.
It is the admission contained in paragraph 1 of the plea in reconvention which lies at the heart of all the litigation between the parties which started with the institution of the action by the applicant in September 1999 in its dispute with respondent and has culminated some five years
5

and four months later in this application. The course of that litigation is all part of the background to this application and I continue with my narrative in regard to it.
After the conclusion of the pleadings, the trial of the matter was scheduled to start on 3 October 2001 but was postponed to 10 December 2001. In the proceedings a discovery affidavit on behalf of the applicant was filed. This was made by the attorney representing the applicant, Mrs. Olga Sekgoma. This affidavit was ruled by the trial judge, Chatikobo J, to be defective as having been made, not by the party concerned who could swear positively to the facts, but by the applicant's legal representative, who could not. This was the first of the many errors made in this litigation.
On 10 December 2001 the first witness for the applicant, then the plaintiff in the case, testified but on 13 December 2001, following a complainant by respondent's counsel that his case was being hampered by the lack of proper discovery, Chatikobo J ordered applicant to effect full and proper discovery within 21 days. Commenting that little progress had been made in the trial up to then, Chatikobo J made the following stricture on the applicant's legal representative:
"The major contributing factor for the lack of progress was Mrs. Sekgoma's persistent lateness for court, conduct which
6

induced in me the feeling that counsel's conduct was contemptuous. Whatever a lawyer's shortcomings might be, punctiliousness must remain his or her unshirkable virtue."
On February 2002 a discovery affidavit in purported compliance with the
trial court's order of 13 December 2001 was filed.
This was, of course, way beyond the 21 days ordered by the court. It was also not full and proper discovery.
On the resumption of the trial on 18 March 2001, respondent's counsel moved for the dismissal of the applicant's case and its defence to the respondent's counterclaim by reason of applicant's failure to comply with the court's order as to discovery. Chatikobo J refused to do so but ordered that full and proper discovery be made by the close of business on that day i.e. 18 March 2001. He added in his order that, in the event of the applicant failing to comply with his order, applicant's claims would be dismissed. That order was again not complied with and the learned trial judge then dismissed the applicant's case, in terms of Order 39, Rule 10 (2) of the High Court Rules, for want of discovery.
The trial court then proceeded to deal with the counterclaim. Counsel for Manica briefly opened his case and intimated to the court what issues would be dealt with. He said that reliance would be placed on the admissions which had been made in the plea to the counterclaim. He
7

pointed out that these admissions has stood on the pleadings for some 18 months and that the applicant's attorney, Mrs. Sekgoma had not alerted herself to them if she did not intend to stand by them. Mrs. Sekgoma appeared to have taken no note of these remarks because of what then followed. It was this.
Evidence was led on behalf of Manica and when Mrs. Sekgoma sought to put certain questions to the first witness called by Manica, objection was taken to her doing so on the basis that the admissions made in the plea in reconvention precluded her from asking questions which tended to put in issue matters which had been so admitted. Realising her predicament Mrs. Sekgoma sought a postponement to enable her to make a formal application to withdraw the said admissions. The trial judge refused to grant her the postponement requested. In so doing he said this:
"It will be seen that since 2000, the defendant knew that certain crucial averments made in the claim in reconvention were not disputed and it must follow that the trial proceeded on that basis. It is inconceivable that the plaintiff came to court without reading the pleadings. It is inconceivable or difficult to imagine how a decision as to what evidence would be led on behalf of the plaintiff and what issues would be raised was made without reference to the pleadings. I can therefore be excused for holding the view that the plaintiffs counsel must have known all along what matters were admitted and what matters were in issue. To then ask for a postponement in order to seek an amendment, during the course of cross-examination of the defence witness on the pretext that she has been taken by surprise is to say the least amazing. It would be an abuse of the process of court
8

for me to accede to the request for a postponement at this stage."
The ruling being an interlocutory matter, Mrs. Sekgoma sought leave to appeal to this Court against the trial Judge's ruling. He refused it. She then applied to this Court for leave to appeal to it against the refusal of a postponement and that alone.
The matter was set down for hearing in this Court on 17 July 2002. On that day Mrs. Sekgoma failed to appear when the matter was called. The application was struck off the roll, with costs. In so doing I said:
"Mrs. Sekgoma was obviously aware of the fact that this matter would be heard today because she sent a fax to the Registrar to say that at this hearing she would be seeking a postponement of the appeal to the next session of this Court, which will be in January next year. She filed no heads of argument and she had indicated in the fax that she is unable to do so because she does not have the complete record of proceedings from the lower court. There is no necessity for the transcription of the record because the appeal was entirely, and only, against the refusal of the High Court to grant the postponement. Sufficient documents were filed in this Court to deal with that particular matter. However, the fact is that she has neither filed any heads of arguments in support of the appeal nor has she bothered to appear this morning when the matter was called and despite efforts by Mr. Komboni (for Manica) to try to reach her at her office and on her cellular phone, he was unable to do so."
On 21 July 2002 Mrs. Sekgoma applied to have the application reinstated. It is trite that before this Court could accede to that, proper,
9

reasonable and acceptable reasons had to be put before it as to why it should do so. The reasons she advanced were set out in her founding affidavit to the application for reinstatement and are these:
"On the said date I was unable to appear when the appeal was called because I was that same morning on my way to Lobatse from Johannesburg. I had miscalculated the time I would take to travel by road from South Africa to Botswana. Some of the roads are still under construction. I was travelling with children and the border had, on the previous day, been extremely busy due to holidays. I heard my cell ring when I was in Tlokweng driving towards Gaborone in my sister's car. The cell phone was locked in the glove compartment of the car. I was unable to open it as it was locked.
I called Lobatse from the office and was informed that the matter had been heard and that efforts to trace me had failed."
She goes on to say:
"I had requested an officer, on the 12 July 2002, of the Chambers to fax a letter explaining that the record had not as yet been typed and that I intended to seek a postponement.""
This Court refused her application. In delivering the judgment of the Court I said this:
"These reasons, as far as I am concerned, are completely unreasonable. Mrs. Sekgoma on her own admission and in terms of the fax knew full well that she had to be in Court on the morning of the 17th. She should have made her arrangements in order to get here and she should have left in time and should not have had any difficulty to have got to this Court in order to appear at that hearing.
10

Moreover, she could have, at any state of the journey, stopped and telephoned through to this Court to indicate that she was unable to be present when this matter was heard. This factor plus the fact that the fax mentioned was sent to this Court at 5 o'clock on the afternoon of Friday the 12th July - the Friday before a long weekend - simply indicates to the Court that she regarded a postponement as a foregone conclusion. To then not come before the Court to ask for one represents a singularly disrespectful attitude towards this Court."
I then went on to say the following:
^        "In this particular instance, the postponement was sought by
Mrs. Sekgoma because she said that she wished to withdraw certain admissions. I have already quoted the judgment of the learned Court a quo in regard to this in which he said, and I will repeat, that it was inconceivable that the representative of the plaintiff, Mrs. Sekgoma, came to Court without reading pleadings containing admissions which she could, prior to the matter being dealt with in the court, have applied to have them withdrawn. When questioned about that by this court Mrs. Sekgoma conceded that she had not read the pleadings before she came to court. This I can only say, represents negligence of a high degree on the part of the practitioner. I cannot conceive, as the learned trial judge commented, how a party to an action can come to court without reading the very pleadings she had drawn herself, without reference to those pleadings. Mrs. Sekgoma says
^,       that when the main claim was dismissed she was so
dumbstruck by what was occurring that she was not concentrating properly. That, I find remarkable. I find that there was nothing capricious in his decision to refuse a postponement or that the learned Judge in the Court a quo acted without applying his mind properly to the matter and that he did apply proper judicial discretion to the question of granting a postponement. I find therefore that on the merits there are no prospects of success. As far as the explanation for Mrs. Sekgoma's absence I have already indicated that this to me represents a most disrespectful approach to this Court. This is the highest Court of the land and this Court requires that practitioners should show it the respect that it deserves. In this particular instance I find that the conduct of Mrs. Sekgoma shows singular disrespect, bordering on the contemptuous."
11

The appeal against the postponement was dismissed on 24 July 2002. The trial resumed before Chatikobo J on 10 December 2002. Mrs. Sekgoma therefore had eight months in which to apply to amend her pleadings and to draft such amendment withdrawing the admissions concerned, had she wished to do so. She, however, did nothing during that period.
On the morning of 10 December 2002 - and I quote in this regard from the judgment of the learned trial judge - Mrs. Sekgoma came to court very late and gave as her excuse that she was preparing a formal application for the withdrawal of the admissions. She wanted another postponement. This was refused, the learned Judge ordering her to make her application there and then. After hearing the parties, her application was refused because of the prejudice that it would cause to Manica. The learned Judge said:
"It had become clear that for whatever reason, Mrs. Sekgoma was hopelessly unprepared for the trial. Apart from stating that she made an error when drawing the pleadings she has absolutely no explanation for her failure, if a failure it be, for not noticing the error from 1999 right up to March 2002. If the admission was not intended then it must have been made recklessly."
12

Mrs. Sekgoma then declined to cross-examine any further. Manica's case was then closed and the learned trial judge found that Manica's counterclaim had been established and gave judgment in its favour on its claim, with interest and costs. His judgment was delivered on 11 March 2003 and it is that judgment, which also involves the court's refusal to grant a postponement to allow the vexed admissions to be withdrawn, that the applicant wants to appeal against.
The judgment of the trial court having been given on 11 March 2003, notice of appeal had, in terms of Rule 13(1) of the Rules of the Court of Appeal, to be filed on or before 22 April 2003. It was in fact filed on 2 July 2003. It was in fact filed on 2 July 2003. This was some 11 weeks late. On the same day the applicant filed an application condoning the late filing of the notice and asking that it be granted leave to appeal out of time. It is this application with which this Court is presently seized.
It is, of course, well established that in order to succeed in an application such as the present the applicant must, by way of affidavit, set forth good and substantial reasons for the application i.e. reasons why the appeal was not timeously noted and also provide grounds of appeal which prima facie show good cause why the leave sought should be granted (Rule 8 (2), Court of Appeal Rules, Solomon v. Attorney General 1997 BLR 663 at 664 F-H).
13

Condonation of a breach of the Rules of Court is granted not as of right but as an indulgence. It is accordingly necessary for an applicant for such condonation to show not merely that he has strong prospects of success on appeal but to give good reasons why he should receive such indulgence, i.e. that he acted expeditiously when he discovered his delay and advance an acceptable explanation for the delay (see State v. Elias Moagi 1974 BLR 37 at 39; Solomon v. Attorney General supra at 666 D). There are, however, other factors which the court, in considering such an application, is also obliged to take into account. These are conveniently referred to and collected in Herbstein and Van Winsen: The Civil Practice of the Supreme Court of South Africa 4th Edition p. 897-8. While applying to applications in South Africa, they are the same principles which are applicable in our law (see C.F. Industries (Pty) Ltd v. Attorney General of Botswana 1997 BLR 657). Those factors include not only the degree of non-compliance, the explanation for it, the prospects of success and the importance of the case but also the respondent's interest in the finality of his judgment, the question of prejudice to him, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.
In Melane v. Santam Insurance Co. Ltd. 1962 (4) SA 531 (A) at 532
C-D, Holmes JA said the following:
14

"'Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are not prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed in an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interest in finality must not be overlooked.'"
It is essentially a matter of fairness to both sides. (See Melane's case, supra):
I turn then to the applicant's reasons for delay. In her affidavit explaining why she had not filed the notice of appeal in time, Mrs. Sekgoma said:
"4. My failure to timeously lodge a notice of appeal was
not done deliberately in disregard of the rules of the Honourable Court. It was as a result of the fact that towards the end of the year 2002 the effect of the absence of three senior officers from the Chambers on study leave and a lengthy sick (sic). This had left me juggling between my files and the said officers' files.
5. This was worsened by the fact that old matters, were (sic) in the Attorney general had been cited as Defendants, that I had taken over some years back which had never been heard were now being set down for hearing throughout the earlier part of the year 2003. I had to attend to these matters along with the matters that were currently on my table.
15

6.     
This situation was complicated by the fact that I was on the 15th of May given two weeks sick leave following surgery. On my return to the office I continued facing the situation referred to above.
7.     
Contributing to the dominoe effect, over and above what is stated above, has been my personal family circumstances wherein I have since had to twice between October 2002 and February 2003 move residence with my three minor children following the breakdown of my marriage."
This explanation is completely unsatisfactory. It does not deal at all with the period between 11 March 2003 and 22 April 2003 when the notice of appeal should have been filed. The facts set out in paragraphs 4, 5 and 7 relate to the period before the judgment was delivered and therefore have no relevance to the delay in noting the appeal and those in paragraph 6 refer to a two-week period after 15 May 2003, i.e. some 3 lA weeks after the time for filing the notice had expired. Her explanation goes on to read thus:
"The judgment in this matter was not forwarded to the Department of Supply as I had wanted to first prepare the notice of appeal and to make them aware of it at the point when they would have had an imput (sic) possibly when the Heads of Argument were being prepared."
This statement reflects the casual and lax approach of Mrs. Sekgoma to the whole of this case. It is clear from it that she was really not the least concerned as to when her notice of appeal should be filed Indeed, it
16

represents an attitude of negligence bordering on recklessness. This is borne out by further statements in her affidavit. She says:
"The admission of paragraph 2 of the counterclaim was made in error. I was preparing the plea hurriedly and I assumed that the reference of the paragraphs in paragraph 2 was in reference to the plaintiffs particulars of claim. Unfortunately, I did not go over each of them."
This is made worse by her concession that she did not read the pleadings before embarking upon the trial.
Her failure to correct the error between 1999 and 2002 when the pleadings closed and the matter came to trial; or when Manica's counsel drew attention to the admissions in his opening address at the trial; or in the eight months between March and December 2002 when she knew of the error, are further indications of this laxity. To file a notice of appeal would have been a simple step in the proceedings, requiring neither a great deal of time or effort. Her explanations as to why she - or someone else in applicant's office - did not do so are evasive and, I find, completely unsatisfactory and unacceptable.
Mrs. Sekgoma says that:
17

"an admission made in error and without a reason to deceive or gain advantage though (sic) the result of careless drafting should not close the door to the justice of a case being ventilated."
As appears from all the aforegoing it is not just the question of "careless drafting " but the neglectful failure to correct an error, if such it be, that has to be considered by this Court in seeking to be fair to both sides. It must also consider Manica's position, as a result of Mrs. Sekgoma's laxity, and the possibility of prejudice to it. I shall return to this aspect later herein.
While it may be said that the sins of the attorney should not be visited on the client, the degree of culpability of the former may have reached such a level as to deny the client relief (see Thapelo v. Kehilo 1932 OPD at 26; E.M. Ramosu v. Metsi Drilling Company (Pty) Ltd. CivApp 22/2001 (C.A.), as yet unreported). In my view this is the case in casu.
The matter does not end there either.
This application was lodged on 2 July 2003. It came before me on 10 January 2005, almost two years later. When I asked Mr. Chamme, who appeared for the applicant, why this was so, he said there had been difficulty in obtaining a date of set down from the Registrar of this Court. It is a pity - and, again it is a matter for criticism of the Attorney General
18

in not doing so - that this was not put before the Court on affidavit and the Registrar given an opportunity to reply to it. I do not know, for example, if Mr. Chamme has personal knowledge of the fact he stated or whether he is merely saying what someone on his staff has told him, for while I would never query the word of a practitioner as senior as Mr. Chamme, I find it hard to accept that in nearly two years, during which three sessions of this Court have been held, one day could not have been found to hear the matter, particular if suitable overtures had been made to the Registrar to expedite the matter and to find a date.
Be that as it may, the undisputed fact is that nearly two years have elapsed since the judgment, which it is sought to appeal against, was delivered.
That immediately raises two factors (i) prejudice to the respondent Manica and (ii) the finality of the judgment in question.
It is submitted on behalf of the applicant that there would be no prejudice to the respondent which could not be remedied by a suitable order as to costs. I cannot agree. Should leave to appeal be granted, it will be some six months before the appeal can be heard. Should that succeed, the respondent will have to replicate to any new plea to the counterclaim. The trial will have to commence de novo. It will be at
19

least a year before that can occur. The respondent's witnesses may then no longer be available. (One at least, Mr. Molokomme, the employee of Manica who dealt with this matter and who testified at the trial, apparently no longer works for Manica). Memories of details of the transactions involved, dating as they do some eight years back to 1997, will doubtlessly have faded. Documents may have been lost. This will all be highly prejudicial to the respondent who has not been responsible for the delays, which now extend from 1999, and for which the applicant, certainly from 2002, bears the responsibility. I can also not overlook the respondent's interest in the finality of its judgment, a cardinal factor in an application like this.
I am also not persuaded that the applicant would have reasonable
prospects of success on appeal. It is averred that it had always denied
that Manica was entitled to the payments claimed by it and that a trial in
which the alleged erroneous admissions are retracted would establish the
validity of those denials. But would it? Certain of the so-called
erroneous admissions refer to the pleading of certain letters. One of
these, Manica averred, constituted it the Ministry's customs clearing and
forwarding agent for the project to which I referred earlier herein. It also
pleaded that it had claimed for its services, for which applicant denies
liability for payment, on the written instructions contained in a letter
from the Director of Supply.     Those letters were attached to
20

respondent's plea. Both those letters were written and sent by the responsible authorities whom the applicant represents. I cannot conceive how the existence of those letters can be denied by the applicant. It was on the strength of the instructions in those letters that Manica says it carried out the services, for which it claimed payment in invoices sent by it. It appears to be common cause that the invoices were sent openly and bona fide to the relevant officials and that they are not fictitious. If that was not the position then the barest exercise of proper diligence by the officials concerned would have caused them to query the carrying out of the services and the charging for them by Manica. They did not do so.
It is significant that when questioned in cross-examination as to the letter and savingram attached to it, constituting Manica the customs clearing and forwarding agent for the Ministry, and the effect of the letter, Mr. Chikohora, the Principal Accountant in the Department of Supply, who testified for the applicant at the trial, declined to answer the questions.
The record in this regard reads thus:
"Q.: The savingram being the contract, addendum as it
were, between the Government and Manica, correct?
A.: (No answer)
21

Q.: So the joint venture is being told by this arrangement, correct?
A.: (No answer)."
The record of the further cross-examination of Mr. Chikohora on Manica's being instructed to supply its services for goods sourced from inside the Common Customs Area reveals an evasiveness on his part, prompting counsel for Manica to say that he would argue that Mr. Chikohora's answers are "not going to do your credibility any good." And in reply to a direct question that the invoices shown related to goods emanating from South African, i.e. from inside the Common Customs Area, the record shows "No answer."
It is, of course, unnecessary and beyond the scope of what is required for a proper adjudication of this application for me to go fully into the merits of the dispute between the parties. I must, however, be satisfied, particularly when I have found that no good and satisfactory reasons for not complying with the Rules and for the delay in lodging the notice of appeal have been given, that there are prima facie reasonable prospects of success on appeal.
Having regard to what I have set out above, I am not so satisfied. Nor, because of what I conceive the applicant, in attempting to achieve leave to amend its plea to withdraw the alleged erroneous admissions, will in
22

any event have to admit in so far as its own letters and instructions are concerned, am I satisfied that there are prima facie reasonable prospects of success on appeal on the refusal of the Court a quo to allow such amendment when the matter was before it.
Mr. Chamme has submitted that it is a well-known principle that the objects of courts is to decide rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. That submission may be correct, as far as it goes (I express no view on it), but it is the rights of both parties to which the Court must look and not of only one of them. As I have said, it is in essence a case of fairness to both sides and I would not be fair to the respondent were I to grant this application.
For all the aforegoing reasons, the application must fail.
I therefore make the following order:
"The application for leave to appeal out of time is dismissed, with costs."
23

DELIVERED IN OPEN COURT AT THE COURT OP APPEAL, LOBATSE, THIS 27th DAY OF JANUARY 2005.
P. H. TEBBUTT JUDGE PRESIDENT.
24

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/2005/5.html