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Medical Rescue International Botswana Limited v Attorney General and Others (Civil Appeal No. 55 of 205) [2006] BWCA 6 (10 March 2006)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO. 055/05 MISCELLANEOUS APPLICATION NO. 514/05
In the matter between:
MEDICAL RESCUE INTERNATIONAL
BOTSWANA LIMITED         Appellant
and
THE ATTORNEY GENERAL     1st Respondent
THE PUBLIC PROCUREMENT AND       2nd Respondent
ASSET DISPOSAL BOARD
CLASSIC SERVICES (PTY) LIMITED   3rd Respondent
TRADING AS NETCARE 991
Advocate P. Hodes S.C, with him Advocate Leach and
Mr. Attorney B. Tafa for Appellant
Mr. M. Modisenyane, with him Mr. T. Tshekiso for 1st Respondent
Mr. B. Bolele, with him Ms. M.J. Nyange for 2nd Respondent
Advocate T. Plewman, with him Mrs. P. Thuto for 3rd Respondent
J UDGMENT
CORAM: TEBBUTTJ.P. ZIETSMAN J.A. GROSSKOPF J.A. Mc NALLY J.A. CHINHENGO A.J.A.
TEBBUTT J.P.

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The issue which this appeal has raised is whether an interim interdict to maintain the status quo in a situation, can be granted against the Government.
In the High Court it was held, per Dow J., that it could not be granted. The appellant contends that this decision was incorrect and that it can be granted. Hence this appeal to this Court.
The facts that are germane to this appeal, as gleaned from the appellant's papers and the opposing affidavits in the court a quo, are the following:
Since 2000 the appellant has conducted the business of providing emergency medical and roadside assistance to, inter alia, members of the public. In addition, it provided such services to beneficiaries under the Guaranteed Loans Insurance Fund (hereafter referred to as "the Fund"). This Fund was established in terms of the Finance and Audits Act, Cap.54:01, and the Guaranteed Loans Insurance Fund, Order 1988. Its purpose is to provide insurance cover for motor vehicles and private dwellings purchased with commercial loans guaranteed by the Government of Botswana, or a city, town or district council or a land board, in respect of its employees.

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On 29 April 2005 the Ministry of Finance and Development Planning within the Government of Botswana (hereafter "the Ministry"), which is represented in this appeal by the Attorney General, by way of a public notice in the Government Gazette, called for tenders for the provision of emergency medical and roadside assistance to beneficiaries under the Fund i.e. for the provision of the services which were then being provided by the appellant and certain additional services.
The appellant submitted a tender. There was only one other tenderer viz the third respondent, to whom, for convenience sake, I shall refer as "Netcare."
The price bid for the appellant in its tender for the provision of the required services was P13.50 per member of the Fund per month. Netcare provided three options with tender prices varying from P13.10 to P21.90 per member per month. Both tenders were submitted to the Public Procurement and Asset Disposal Board (hereafter "the PPADB") and they were opened by representatives of the latter on 1 June 2005. This was done in the presence of representatives of the appellant and of Netcare, who thus became aware of what tender price each one had tendered.

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On 29 July 2005 a letter was addressed to both tenderers by the Ministry requesting them to -
"Provide your best and final offer relating to your pricing and in
line with the requirements of the VAT Act."
On 2 August 2005 a further letter from the Ministry was sent to the tenderers, purportedly to clarify the previous letter, requesting them to resubmit their original prices quoted and "stating the tax inclusive final price."
On 26 August 2005 the Ministry sent yet a further letter to the tenderers. In this they were advised that the PPADB had disqualified the previous price bids submitted by the two tenderers as the prices were not VAT inclusive and required the tenderers to re-submit their "Best and Final Offer" with a price that had to be VAT inclusive.
The new tender bid was delivered to the offices of the Ministry by the appellant on 1 September 2005 and the tenders were again opened on that day by a representative of the PPADB who once again read out the bids. The appellant's price was PI4.85 per month per member. The bid of

Netcare was, however, this time PI4.05 per month per member i.e. 80 thebe less than that of the appellant.
On 11 October 2005 a newspaper advertisement was placed by the PPADB advising that the tender had been awarded to Netcare for a two-year period at a total price of P5,376,518.90,which apparently translates into an amount of approximately P14,00 per member per month, inclusive of VAT.
The appellant thereupon, on 18 October 2005, wrote to the Ministry stating that it considered the award of the tender to Netcare to be irregular, improper and flawed; advising that the appellant intended to institute review proceedings to have the award set aside; and demanding an undertaking that pending such review proceedings the Ministry would not enter into a contract with Netcare or permit its implementation.
Further correspondence and verbal discussions thereafter took place between representatives of the two parties which need not be detailed herein. Suffice to say that as no undertaking in the terms sought was given, the appellant on 4 November 2005 lodged an application by way of notice of motion for a rule nisi calling upon the Attorney General, the PPADB and Netcare to show

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cause why the Government of Botswana should not be interdicted from finalising a contract with Netcare for the provision of the requisite services to members of the Fund and/or that the Government and Netcare should not be interdicted from implementing or executing such contract, such interdicts to operate against the Attorney General and Netcare pending the fmalisation of an application to review and set aside the award of the tender by PPADB to Netcare. W
The respondents in the High Court, who are the same as those in this Court, took a number of points in limine. Only one of these was dealt with by Dow J. viz whether or not it was competent to seek an interdict against the Government, having regard to the provisions of Section 9 of the State Proceedings (Civil Actions By or Against Government or Public Officers) Act, Cap 10:01 (hereafter referred to as "the Act"), t^. Section 9 of the Act, reads as follows:
"9. (1) Nothing contained in this Act shall be construed as authorizing the grant of relief by way of interdict or specific performance against the Government, but in lieu thereof the court may make an order declaratory of the rights of the parties.

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(2) The court shall not in any action grant any interdict or make
any order against a public officer if the effect of granting the
interdict or making the order would be to give any relief against
the Government which could not have been obtained in any
action against the Government."
Dow J. held that an "action" as set out in Section 9 (2) is not limited to
proceedings brought by way of summons nor to applications in which final
relief is sought but would include all applications, whether brought by notice
of motion or otherwise, and would include applications for temporary relief.
The learned Judge held further, that the appellant's contention before her
that Section 9 (1) referred to final interdicts and that, while the Act might
prohibit these, interim interdicts were not prohibited, could not be sustained.
She held that there was nothing in the language of Section 9 that led her to
conclude that interim interdicts were excluded from the prohibitory
provisions of the Section. She said in this regard, the following:
"An interdict, whether final or interim, is not a remedy which is ordinarily available to a claimant in a suit against the Government. Such remedy is, however, available in a proper case where the applicant has brought a successful fundamental

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rights - contravention suit under Section 18 of the Constitution."
The appellant had in fact, before Dow J., argued that a denial of its right to an interim interdict constituted a contravention of its constitutional rights, based upon Section 18 of the Constitution. I shall return to this aspect later herein. Suffice to say at this stage that Dow J. held that the appellant had not complied with the provisions of Order 70 of the High Court Rules, requiring that applications by persons for redress in terms of Section 18 of the Constitution must be by way of notice of motion, supported by affidavit setting out the circumstances and grounds on which the applicant relies. As the appellant had not, using the machinery provided for in Order 70, claimed any relief based on an infringement of the rights set out in Sections 3 to 16 of the Constitution, no relief could be granted in terms of Section 18 of the Constitution.
The learned judge did not deal with any of the other matters raised in the papers by the parties. She refused to grant the appellant the interdict it sought on the ground that it was not competent for her to do so because of

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the provisions of Section 9 of the Act. She, however, granted the appellant leave to appeal to this Court against her decision.
The respondents then filed a notice of cross-appeal under Rule 22 of the Court of Appeal Rules to allow them to contend that the refusal by the court a quo to grant the appellant the interdict sought by it should also be confirmed by this court on the following further grounds (these were the additional points in limine raised by the respondents): (a) that the matter was not one of urgency; (b) that the appellant had not exhausted the domestic remedies provided in the Public Procurement and Assets Disposal Act (Cap 42:08) by complaining to the Independent Complaints Review Committee created by Sections 93 to 109 of the latter Act; and (c) that the appellant on its own papers did not meet the requirements for an interim interdict. At the hearing before this Court the respondents did not pursue any of these points. As to their second point it must be noted that the Independent Complaints Review Committee has not yet come into existence. No more need, therefore, be said about the cross-appeal.
Before coming to consider the substantive appeal one further factor must be recorded. It is common cause that, although the appellant obtained leave to appeal from the court a quo, on 30 November 2005, the Ministry and

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Netcare on 13 January 2006 signed a contract for the provision of the requisite services by Netcare and the latter has since been implementing it.
In its appeal the appellant has advanced two main grounds (a) that Section 9 does not prohibit the granting against the Government of an interim interdict to preserve the status quo pending an action: in casu to have the decision of the PPADB granting the contract in question to Netcare set aside; and (b) in the alternative, that Section 9 offends against the appellant's rights under the Constitution and that in terms of Section 18 of the Constitution this Court can grant the appellant the relief it sought in its application.
I shall refer to the first ground as "the interdict argument" and to the second as "the constitutional argument." The interdict argument
A convenient starting point for a consideration of this argument is the underlying purpose of the Act of which Section 9 is a part i.e. the State Proceedings Act, 1966.

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The doctrine of executive immunity was well known in England, the ancient feudal maxim that "the King can do no wrong" having come to mean that no fault could be attributed to the Crown and that no suit against the Crown was competent. In England the concept that "the Crown can do no wrong" took a long time to die and the Ministers of the Crown, as agents of the Crown, benefited from, and were protected by, the doctrine.
In South Africa there has been considerable doubt as to whether the doctrine of executive immunity applied in the Roman-Dutch law, which of course, is also the common law of this country. In one of the earliest cases in South Africa the Cape Supreme Court held that in the Roman-Dutch law there was also executive immunity in relation to the government of the Cape. (See Binda v. Colonial Government 1887 (5) S.C 284), Baxter in his work on Administrative Law at pp 622-623 holds the view that this decision was correct, pointing out that the notion that the sovereign could not be sued in his own court was a universal principle in feudal Europe, deriving not from English law but from Roman law.
The decision in Binda's case has been much criticised by academic writers (See Baxter p 623) who have felt that executive immunity was not known in

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the Roman-Dutch law. The decision has also been criticised in subsequent cases although there has been no decision expressly holding that executive immunity did not exist in Roman-Dutch law. For example in Minister of Finance v. Barberton Municipality 1914 A.D. 335, the South African Appellate Division expressed the view that a claim for an interdict against the government of the Union of South Africa was cognizable in any competent court of the Union. In Mhlongo and Another N.O. v. Minister of Police 1978 (2) SA 551 (A.D.), the same court opined, without however deciding the point, that Roman-Dutch law knew no equivalent of the English doctrine that the King could do no wrong, and that the State was liable to be sued by a subject. It also expressed the view that Binda's case erroneously introduced the English concept of the infallibility of the Crown.
Whatever the position, however, it is now well-recognised that the doctrine of executive immunity which previously rendered the Government and public officers immune from direct civil action has now been statutorily abrogated: in England by the Crown Proceedings Act, 1947 and in South Africa by the State Liabilities Act 62 of 1955.

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The same position applies in Botswana by the provisions of the State
Proceedings Act of 1966 which is an Act "relating to civil actions against the
Government and public officers." Section 2 of the Act reads as follows:
"2. Any claim against the Government which would if such
claim had arisen against a subject be the ground of an action in
any competent court shall be cognizable by the said court
whether such claim arises or has arisen out of any contract
lawfully entered into on behalf of the Government or out of any
wrong committed by any servant of the Government acting in
his capacity and within the scope of his authority as such
servant."
It is, of course, trite that in litigation between ordinary citizens the granting
by the courts of interdicts was well known and has frequently occurred.
This applies to interdicts of a final nature which may either be mandatory, in
which the person against whom such interdict is granted is ordered to
perform some act that he is liable to perform, or prohibitory, in which a
person is forbidden to perform an act, and to orders for specific
performance, which are also final in effect.

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It also applies to interim interdicts which have the effect of maintaining the status quo pending the determination of a substantive dispute between the parties (see Prest: Law of Interdicts p 88.)
The object of an application for an interlocutory interdict is "to protect the rights of the complainant party pending an action to be brought by him to establish the respective rights of the parties. Its effect is to 'freeze' the position until the Court decides where the right lies" (see Prinsloo v Johannesburg City Council 1969 (2) SA 355 (W) at 358 B-C).
Moreover, it is equally well-established that interim interdicts, in order to maintain the in status quo until the rights of the parties can finally be decided can be, and frequently are, granted in proceedings for judicial review of administrative decisions at the instance of a private citizen. Such judicial review is an inherent right under our common law and is not dependent upon any legislative machinery (see Johannesburg Consolidated Investment Co v. Johannesburg Town Council 1903 TSll 1 at 115; Harnaker v. Minister of the Interior 1965 (1) SA 372 (C) at 377)

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To what extent then does Section 9 of the Act prohibit the obtaining of interdictory relief against the Government?
It is a well-known canon of construction of statutory enactments that the Legislature in enacting a statute does not intend, in order to render the statute effective, to alter the law as it then stands more than is necessary. (See Devenish: Interpretation of Statutes p 159 et seq.; Craies: Statute Law 7th Edition p 121-2; Maxwell: Interpretation of Statutes 11th Edition p 78)
The presumption that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares has also received judicial acceptance and approval in a number of South African cases.
In Dadoo Ltd & Others v. Krugersdorp Municipality 1920 AD 530 at 552
Innes C.J. said:
"It is a wholesome rule of our law which requires a strict construction to be placed upon statutory provisions which interfere with elementary rights."

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In Benning v. Union Government 1914 A.D. 180 at 185, Innes J.A. (as he
then was) had said that:
"Conditions which clog the ordinary rights of an aggrieved person to seek the assistance of a court of law should be strictly construed and not extended beyond the cases to which they expressly apply."
(See also S v. Mugadi & Others 1986 (1) SA 526 (N) at 531 E; Mbali v.
Minister of Police 1984 (2) SA 596 (TSC) at 598 D-E; Avex Air (Ptv) Ltd
vs. Borough of Vrvheid 1973 (1) SA 617 (AD) at 621 F-G)
I find these expressions of the correct approach to statutory interpretation helpful and persuasive and hold that they apply with equal validity to the law of Botswana.
The opinion has been expressed by Gyeke-Dako J. in the High Court in Kandu and Others v. Director of Veterinary Services and Another (1996) BLR 618 (a decision in which he held that an interim interdict could not, by virtue of Section 9, be granted against a Government Minister) that Section 9 appeared to have been imported from the English law, it being similar,

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especially in spirit and intent to the proviso to Section 21 of the Crown Proceedings Act, 1947.
That Section reads as follows:
"(1) In any proceedings by or against the Crown the court shall, subject to the provisions of the Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that:
(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties. (2.) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which

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could not have been obtained in proceedings against the
Crown." It will immediately be observed that while to some extent the phraseology in Section 21 is similar to that in Section 9 (especially in Section 9 (2)) the Botswana legislature chose not to follow the English Act in Section 9(1). Unlike Section 21 which contains a direct prohibition against the granting of an injunction or specific performance in proceedings against the Crown, Section 9 of the Botswana Act does no such thing.
Indeed Mr. Plewman, who appeared for Netcare - and with whose arguments Mr. Modisenyane for the Attorney General and Mr. Bolele for the PPADB associated themselves - accepted that the plain language of Section 9 does not expressly prohibit the granting of interdictory relief. He submitted, however, that it impliedly did so.
It seems to me clear that the enactment of Section 9 (2), following as it does the wording of Section 21 (2) of the English Act, was merely designed to extend to any public officer whatever prohibition against the Government Section 9(1) might contain. The reason for this appears from the speech of Lord Woolf in the House of Lords case of M v. Home Office and Another

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(1993) 3 All E.R. 537 (HL). In that case the learned Law Lord pointed out that prior to the enactment of the 1947 Act and in order to circumvent the immunity of the Crown, plaintiffs sued the officials concerned personally who were not able to hide behind the Crown immunity. This gave rise to situations where injunctions were granted which would otherwise not have been competent had they been sought against the Crown. This included interlocutory or interim injunctions. Subsequent to the enactment of Section 21 (2), however, although the right to take proceedings against an officer of the Crown personally remained unaffected, if such officer was being sued in his representative capacity, no injunction could be granted because in such a situation the effect would be to give relief against the Crown (see pp 553, 556-557.)
Returning then to Section 9(1), the wording of that section in the Botswana Act, as distinct from that of the proviso in Section 21 (1) of the English Act, contains, in my view, merely a limitation on extending the grant of relief by way of interdict or specific performance against the Government. It goes no further than that. It certainly does not remove any rights.

What did the Legislature intend by the use of the words "relief by way of interdict or specific performance"? In my view these words cannot be read in isolation but must be read in conjunction with the concluding words of Section 9 (1) which provide that the court, where it is barred from granting an interdict or specific performance may "in lieu thereof make an order "declaratory of the rights of the parties". Such order would therefore be an alternative remedy to an interdict or specific performance. Mr. Plewman conceded that the Court cannot grant a declaratory order "of the rights of the parties" (my emphasis) in respect of an application for an interim interdict. No rights of the parties are involved in an application for an interdict to maintain the status quo. He was correct in making that concession.
Gyeke-Dako J. also recognised this in the Kandu case, supra, where he said it would be a novel, and indeed, unheard of suggestion, that a declaration of the rights of the parties could be made "in lieu of an interim interdict.
What is stated above leads one to the conclusion that what the Legislature had in mind by the use of the word "interdict" was an interdict of a final nature and not an interim interdict the object of which is merely to retain the status quo until the rights of the parties can be determined.

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This approach would also accord with the well-recognised principle that there must be a separation of the powers of the judiciary and the executive. The legislature, in my view, had this in contemplation by limiting the power of the courts to a grant mandamus order against the State or a public official to carry out a function or to an order to specifically perform an act. These are matters falling within the prerogative of the executive. But non constat that it applies to a temporary injunction to maintain the status quo until the final determination of proceedings: in casu a judicial review of an administrative decision of a Government body.
Mr. Plewman, once again, accepted that a final interdict or an order for specific performance could cut across Government policy in a particular sphere but that this would not generally apply to an interim interdict.
It is to be noted that in England mandamus has been granted against the Crown or an officer of the Crown. In R v Customs & Excise Commissioners: Exparte Cooke & Stevenson (1970) 1 All E.R. 1068 at 1072 Lord Parker said:

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"It is sometimes said as a general proposition that mandamus will not lie against the Crown or an officer or servant of the Crown. I think we all know in this day and age that that as a general proposition is quite untrue. There have been many cases, of which the most recent is Padfield v Minister of Agriculture, Fisheries and Food [1968] All ER 694, [1968] AC 997, in which a mandamus was issued to a Minister."
He went on to give examples where this had occurred in the past, starting as
far back as 1850.
It is not necessary for the decision in the present case to decide whether the provisions of Section 9 (1) would, in certain circumstances, allow the granting of a mandamus against the State or a public officer of it.
There is much to be said for the view that they would, especially if the opinion that the Roman-Dutch law did not recognise executive immunity were to prevail and applying the principle that a statutory enactment must be so interpreted as to interfere as little as possible with the existing law. This, however, is not what we are called upon to decide in this appeal.

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It is, however, in my view clear that the provisions of Section 9 (1) do not prevent the granting of a temporary interdict against the State or a public officer, which is what we are called upon to decide.
Counsel for all three respondents agreed that such an interdict can be granted where there has been a contravention of a fundamental right as contained in the Constitution. The provisions of Section 18 of the Constitution was, it was accepted, the basis for this. It was also, as appears from the passage in the judgment of Dow J. that I cited earlier, the view of the learned Judge a quo.
I have however, difficulty in this regard in appreciating the difference between the two aspects. I can in logic see no distinction between the ability to obtain a temporary interdict to maintain the status quo where an application is made to remedy a contravention of a right contained in the Constitution and the ability to maintain the status quo where relief is sought in respect of a contravention of a right entrenched in the common law.
Counsel for the respondents referred us to several cases in England where the courts have held that the prohibition against interdictory relief contained

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in the proviso to Section 21 (1) of the Crown Proceedings Act, 1947, includes temporary injunctions as well as final interdicts.
Mr. Plewman relied particularly on two of the English decisions where the meaning of that country's Crown Proceedings Act, 1947 was considered. These were the speech of Lord Bridge in the House of Lords decision in R v Secretary of State for Transport, ex parte Factortame [1989] 2 All E.R. 692 at 708, and the speech of Lord Woolf in M v Home Office & Another [1993], supra, at 551 et seq. He also referred to International General Electric Co of New York Ltd. v Commissioners of Customs and Excise (1962) 2 All E.R. 398 (CA) at 401.
Caution must, however, be applied in seeking to obtain guidance from the English decisions, involving as they do an interpretation of the statutory provisions of that country which are not in pari materia with those of this country.
I have already pointed to the difference between Section 9 (1) of the Botswana State Proceedings Act and Section 21 (1) of the Crown

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Proceedings Act of England. Other enactments, which form no part of our law, have been considered in certain of the cases.
In England, prior to 1977, based on the concept of executive immunity, judicial review of Ministerial decisions and those of other public officers was not competent. In 1977, however, the English Rules of Court were amended by the introduction of RSC Order 53, which was in 1981 given statutory authority by the enactment of Section 31 of the Supreme Court Act, 1981. That provided that leave could be obtained to apply for judicial review of Ministerial and other administrative decisions and actions and that injunctions could be obtained in proceedings for such judicial review. In the Factortame case, supra, Lord Bridge came to the conclusion that an interim injunction could not be granted against a Minister in proceedings for judicial review. He appeared to rely for this conclusion on the provisions of Section 21 of the Crown Proceedings Act. Indeed, he said that if Section 31 "were to be construed in isolation, there would be great force in the reasoning that Section 31 did enable injunctions to be granted for the first time against Ministers of the Crown in judicial review proceedings."

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The decision of Lord Bridge found no favour with the House of Lords in the case of M v Home Affairs supra, where it was decided that in judicial review proceedings interim injunctions could be granted. Lord Woolf, who gave the majority decision of the Court said:
"I do not regard it as justifying limiting the natural interpretation of Section 31 so as to exclude the jurisdiction to grant injunctions, including interim injunctions on applications for judicial review against Ministers of the Crown." (my emphasis) Lord Woolf also held that an interim injunction can be granted even before leave to bring proceedings for judicial review has been given.
While strictly speaking, therefore, the English decisions are not helpful since they are based on a statutory provision viz Section 31 which has no equivalent in Botswana, nevertheless it is clear that in England the position is that in proceedings for judicial review, now statutorily recognized, interim interdicts to maintain the status quo pending the outcome of such review can be granted. In this country there is no statute providing for judicial review. It has, as I have pointed out earlier herein, always been part of the common law of Botswana. The analogy of what is now accepted in England lends

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support for my conclusion that interim interdicts may be granted in proceedings for judicial review, which is what the appellant seeks in the present case.
I find further support for my views in the provisions of Section 105 of the Public Procurement and Asset Disposal Act. Although the Independent Complaints Review Committee created by that Act has not been established yet, it will no doubt be brought into being. Section 105 of the Act lays down, in its essential terms, that when a contract has been concluded by a procuring entity, based on a decision of the PPADB, and implementation of the contract has commenced (as, it will be remembered, has occurred in the present case,) such a contract shall be irrevocable, even though the award decision by the PPADB may in itself remain disputable by a contractor through the Independent Committee. That being so it is, in my view, apparent that in order to avoid the consequence of an irrevocable contract the only remedy available to a party challenging the award decision by way of judicial review would be to obtain an interim interdict maintaining the status quo and suspending the conclusion of any contract pending the determination of the review proceedings.

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Counsel for all the parties also referred the Court to a number of cases in Botswana in which Section 9 had come up for consideration. In some of these it was held by the High Court that the provisions of the section prevented the grant of an interdict; in others it was held that they did not. None of these, however, are helpful to this Court.
In those in which it was held that Section 9 barred an interdict, the Courts followed the judgment of Gyeke-Dako J. in the Kandu case, referred to earlier herein. In that matter it was conceded by counsel for both the applicant and the State, without argument, that the court could not grant such an interdict. The learned Judge agreed with this concession for the reasons set out by him in his judgment. He did not, however, have the benefit of full argument as this Court has had. This Court has found that the section does not prevent the granting of an interim interdict and therefore the judgment in Kandu's case cannot stand. It follows that the other cases in which Kandu's case was relied upon similarly must be held not to be good law. The cases in which interim interdicts were granted are also unhelpful as they were granted in instances where fundamental human or constitutional rights were involved e.g. in one instance to prevent the execution of the applicants pending a further appeal against their sentences of death. In one case,

29
however, Reynolds J. also without the benefit of full argument, considered, as this Court does, that Section 9 (1) was concerned with the granting of final interdicts and did not prevent the granting of interim interdicts which "might involve matters such as torture, incarceration or even death." (See Nasha v Attorney General & Another (1999) 2 BLR 430 (H.C) at 432. This Court is, of course, not bound by the High Court decisions - and it has now reached a conclusion on Section 9 of its own.
I come then to consider what the effect of Section 4 of the State Proceedings Act is. That provides in essence that - no "action" shall be instituted against the Government or against a public officer in terms of the Act until the expiration of one month next after notice has been given of the action stating the cause of the "action", and the relief which the plaintiff claims.
The effect of a similar section in a Local Government Ordinance in South Africa, providing that no "action" against a local authority could be commenced without written notice at least 30 days before the action was commenced, was considered by the Witwatersrand Local Division of the South African High Court in Prinsloo v Johannesburg City Council 1969 (2) SA 355 (WLD).

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There Nicholas J. followed earlier South African decisions which held that the question whether "legal proceedings" are an "action" in a section such as the present Section 4, was to be determined not by the form of the proceedings i.e. whether they were initiated by summons or by notice of motion, but as a matter of substance, i.e. by reference to the nature of the relief claimed, such as an interdict against the doing of something (see the cases cited in Prinsloo's case at 356 F-H). An application for interlocutory relief, it was held, is not, an "action". To hold that a month's notice would be required where urgent interim interdictory relief is sought to maintain the status quo would lead to an absurdity and it is trite that the courts will not give to a statute an interpretation which would result in an absurdity (see R v Venter 1907 TS 910)
It follows that I hold that the provisions of Section 4 are no bar to the granting of an interim interdict.
In respect of the interdict argument, therefore, this Court holds that it is competent for a court to grant an interim interdict to maintain a status quo pending the determination of an application for judicial review of administrative proceedings and that the provisions of Section 9 of the State

31
Proceedings Act does not prevent this. It follows that this Court finds that
Dow J. erred in refusing, on this point, the interim interdict sought in the
present case and that her order doing so must be set aside.
The constitutional argument
In the light of this Court's finding on the interdict argument it is unnecessary
to consider the alternative constitutional argument advanced by the
appellant.
In the result therefore the appeal succeeds. As this related only to the one point in limine raised in the court a quo, the matter will have to be referred back to the High Court for it to decide any further matters the parties may wish to raise.
Having regard to the importance of the matter not only to the parties but also to the public the Court urges the parties to attempt to have the proposed review proceedings considered as a matter of priority avoiding if possible any further technical delays in doing so.
The Court therefore makes the following order:

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The Court therefore makes the following order:
1. The appeal succeeds, with costs, such costs to be paid jointly and severally by the respondents, the one paying the other to be absolved and are to include the costs attendant upon the employment of two counsel;
2.1      The order of the High Court of 30 November 2005 is set aside and
in lieu thereof an order is made in the following terms:
(a)    
it is declared that interim interdictory relief is available against the Government;
(b)    
the appellant's application in its Notice of Motion dated 4 November 2005 is referred back to the High Court for further consideration by that Court.
2.2      The costs of the appellant in the High Court in the proceedings
before Dow J. are to be paid jointly and severally by the
respondents, the one paying the other to be absolved.
DELIVERED IN OPEN COURT AT LOBATSE THIS 10th DAY OF MARCH 2006.
P.H. TEBBUTT JUDGE PRESIDENT

33

I AGREE
N.W. ZIETSMAN JUDGE OF APPEAL


I AGREE
F.H. GROSSKOPF JUDGE OF APPEAL


I AGREE
N. J.McNALLY JUDGE OF APPEAL


I AGREE
M.H. CHINHENGO
ACTING JUDGE OF APPEAL

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