TO PROCEED OR NOT PROCEED? – A CASELAW ESTABLISHED PRACTICE AT THE COURT OF APPEAL AND ITS EXCEPTION

i. Introduction

The Court of Appeal serves the role of scrutinizing judgments of the lower court and determining whether the reasoning is sustainable in the circumstances presented before it. To scrutinize a judgment, there must be a reasoned judgment delivered to begin with. In several instances the Court of Appeal of Botswana has encountered situations where the court below has issued an order but not given a reasoned judgment. In such circumstances, there has been a few instances where the hearing at the appeal proceeded, but in most instances the hearing has not proceeded. This dialogue pursues a deliberation to ascertain the grounds upon which justice is delayed, and the grounds on which it is not. Firstly, the commentary will cover the two forms of lack in reasoning, thereafter a consideration on whether there is a distinct treatment between matters from the High Court versus matters from the Industrial Court, and in close deliberate on why some matters are postponed where there is no judgment while others are not.

ii. Two Forms of Lack in Reasoning

There are two ways in which reason may not be furnished by a court:

• The first is an instance where a reasoned judgment is issued but is without reason in one form or another within the judgment. That is, where a judgment is there but lacks reasoning within it on a particular issue or set of issues;
• The second instance is where no judgment at all has been furnished (this is what is the main subject of discussion in the present dialogue). This also includes instances where an order is issued and a judgment is only stated orally but no later written judgment is produced.

In matters of the first instance, the Court of Appeal proceeds with the hearing of the matter and makes a determination with consideration of the lack in reasoning being part of a reason to deliver its own position which may vary from that of the court a quo. The point being highlighted here, is that where there is no reason over determination of a distinct issue within a judgment, the hearing of the Court would still proceed. This is because in substance, a judgment capable of subjection to scrutiny has been produced.

However, with regard to the second instance, the Court of Appeal has shifted between two approaches. The predominant approach being that the hearing of the Appeal be postponed and an order be issued directing the Judge in the court a quo to furnish reasons within a set period of time. The less adopted approach is to proceed despite there being no judgment at all.

Judgments which give an example of the first instance include:

• MPATI v THE ATTORNEY GENERAL 2007 (1) BLR 417 (CA) at p421, where Moore JA was considering a situation where there was a judgment issued, however, the judgment lacked in advancing reasons as to why the criminal sentence issued was not ante-dated. In this case, a judgment was present but lacked in advancing reason over a distinct issue. The hearing in this matter proceeded.
• Busang AJA’s judgment in ANDREA KATHLEEN BOLLA v ALIAS HEINRICH SWART CACGB-091-21 (unreported) [29th April 2022] is also an example of judgments of the first instance. The issue which the honourable court considered to have lacked reasoning was an exercise of judicious discretion. The honourable justice found that the court a quo had made findings in favour of the Plaintiff in the judgment without reference to the pleadings and did not give reason as to why it believed Plaintiff’s version over that of the Defendant. This lack in reasoning was considered to be a misdirection. So, although a judgment was lacking in some respect, it still had enough substance to be scrutinized and therefore the hearing proceeded.
• So too in WILLY KATHURIMA & ASSOCIATES (PTY) LTD v HLABANO [2017] 2 BLR 252 (CA), where Lesetedi JA found that there was no reasoning advanced in respect of the damages granted, and that the honourable court a quo therefore had failed to furnish reasons for its exercise of discretion. In this matter too the hearing proceeded.

With regard to the second instance, where there is no judgment at all issued save for an order, the honourable Court of Appeal has proceeded to deliberate in conflicting positions in the following respects:

• ?HITECON (PTY) LTD v BATHUSI KGOSIESELE AND ANOTHER CACGB-060-18 (unreported) [10th February 2021], Dambe JA (with Walia JA and Letsididi AJA concurring) considered a matter where the Industrial Court had made an order but the said order was not supported with any reason. These were the key deliberations of the court:

?"Failure to give reasons for judgment was a misdirection, which presents difficulties to this Court in dealing with the merits of the appeal. It is not this Court alone which was disadvantaged by this omission. The Appellant was also highly prejudiced thereby particularly when formulating his grounds of appeal and seeking to comply with the requirements of Rule 18 (2) and (3) of the Rules of this Court. The Respondents too have been left in the dark with no reasons available.”

• The court in Hitecon then proceeded to postpone the hearing and issue a deadline to the court a quo to issue reasons. It must be noted, that the Hitecon appeal emanated from the Industrial Court and that the following matter was from the High Court yet an akin approach exists.
• In a similar situation of the case MOTHUSI LED DINGALO v DIRECTOR OF PUBLIC SERVICE MANAGEMENT AND ANOTHER CACGB-247-20 [5th November 2021], the court struck out an appeal where there was no reasoned judgment, however the strike out was because the Appellant had been given an option to request a written judgment within fourteen (14) days but did not do so at the court a quo. So it was by the Appellant’s inaction that there was no reasoned judgment – hence the strike out. All in all, the bottom-line effect is that the hearing did not proceed without a reasoned judgment.
• Regardless of the above body of precedence in discontinuance of a hearing where there is no written reasoning from the court a quo, there exists a much earlier case in MEKGWE v FIRST NATIONAL BANK OF BOTSWANA LTD AND ANOTHER 1996 BLR 102 (CA). This was an appeal against a decision granting Summary Judgment. The application was granted because the Appellant had failed to file opposing papers against the Summary Judgment at the court a quo. Although the opposition had not been filed, the Appellant had it in-hand on the date of hearing. However, a motion to hand the documents to court over the bar was rejected. The Court did not provide written reasons for the rejected motion and yet this was part of the appeal as appellant sought to defeat the Summary Judgment and be granted leave to defend the action. An assumption was drawn that the court probably refused to receive the documents over the bar as the Appellant had already been given an extension of time prior to the attempt to hand the documents over the bar. The appellant moved for the Court of Appeal to exercise its own discretion over the matter as reasons from the court a quo were absent. Lord Cowie JA made reservations about the difficulty that is presented by there being no reasoned judgment, however, he proceeded to grant the appeal expressing:

?“In the present case, in the absence of such a written judgment, the issue is not clearly focused, and so this court as a court of appeal is bound to consider the facts for itself and exercise its own discretion in the matter.”

This earlier judgment marks the confusion which becomes apparent in instances where there is no reasoned judgment at a hearing in the Court of Appeal.

To proceed or not to proceed? that is the question.

?iii. Acceptance of the established practice where there is no reasoned judgment

In a recent decision of THULAGANYO DAPHNEY KAUTA v B-TECH AND OTHERS CACGB-305-21 (unreported) [5th August 2022], Radijeng AJA, with Dambe JA and Garekwe JA concurring, accepted that the established practice in circumstances where there is no reasoned judgement issued is to postpone the appeal hearing to a later date and direct a deadline to which the court a quo should issue judgment. Reliance was placed on the Hitecon judgment and the approach adopted therein. In this instance, the court a quo had issued an order and delivered its reasons orally and the Appellant sought to proceed on the basis of what was stated orally by the judge. However, the court emphasized that it requires a written judgment and that an oral reasoning is as good as no judgment at all.

With this case, it is clear that the principal approach of the Court of Appeal is that the hearing must not proceed where there is no written reasoning. In the above Kauta matter, the Court of Appeal maintained that an attempt to proceed without a judgment is an attempt to rest the Court of Appeal with duties of a court of first instance which it is not.

This of course does not mean that the Court does not have authority to do so, but rather it opts to use such authority sparingly. This is notwithstanding the existence of Section 7 of the Court of Appeal Act which stated that “for all purposes of and incidental to the hearing and determination of any appeal, the Court of Appeal shall have, in addition to any other power, authority and jurisdiction conferred by this Act and the Constitution, the power, authority and jurisdiction vested in the High Court.” In BEATRICE MAKHWADE v UNIVERSITY OF BOTSWANA CACGB-308-21 (unreported) at para 27-28 and 30-32, the court maintained that it is not thereby, per section 7, granted liberty to be a court of first instance capable of determining a first instance interdict application. Utilisation of the first instance discretion through applications is available in instances such as that of STATE v MAAUWE AND ANOTHER 2006 (2) BLR 530 and later GABAAKANYE v PRESIDENT OF THE REPUBLIC OF BOTSWANA AND OTHERS [2016] 1 BLR 373 (CA).

Therefore, one can only move from the principal practice where there are some ascertainable exceptional circumstances.

?iv. Exception to the established practice

From the two precedents found by the writer at the time of preparation of this dialogue, there appears two exceptions to the practice of postponement of a hearing:

• Firstly, where it appears to be redundant to postpone based on the nature or circumstances of the matter at hand. Such as the Mekgwe case where it dealt with a summary judgment and further postponement where a bona fide defence was evident only eroded the expedient nature of the remedy being pursued as well as unnecessarily protracting the matter when the outcome was near obvious to the court. The Court of Appeal has proved before that it is willing to forego engagement in futility in exchange for bending its own rules. BANGO TRADING (PTY) LTD v CUL DE SAC AND OTHERS CACGB-081-21 (unreported) [7th May 2021] is an instance where there was an Application to seek leave to appeal out of time which was not opposed, the 1st Respondent indicated that after the leave was allowed it intended to oppose the appeal on the basis of its invalidity. Lesetedi JA found this to be an unsound approach and refused the application for leave though unopposed, stating that it would be futile to adopt the process which the 1st Respondent sought to adopt when it was clear that there is no validity in the appeal to begin with.
• Secondly, where the issue under appeal is narrow or primarily procedural. This is shown by the case KATLHOLO MONNAATLALA v DORCUS MONNAATLALA CACGB-261-20 (unreported) [5th August 2022], where Kebonang AJA was presented with a matter where the court a quo determined the merits of a matter for contempt while there was still a procedural application for direction pending before it. The court, from the record determined that the court a quo ought to have first determined the application for direction before determining the contempt application. The honourable court maintained:

?“The absence of a written judgment or ruling notwithstanding, the issue before us is not significantly difficult to resolve. Returning to the question whether the substantive contempt application should have been heard and determined at a time when there was a pending application for directions, the answer to that question must be in the negative.”

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?v. Conclusion

The established practice is that where there is no reasoned judgment at all, the hearing of an appeal is postponed. However, this lack of reasoned judgment must not be faulted from the parties. Where there is a window extended by the court a quo to request a written judgment, and an Appellant fails to utilize it, then the appeal will be struck out. Fault would be on the appellant. One can also conclude that the same fate awaits a cross-appellant who also fails to request a judgment in such situations.

Under exceptional circumstances, the Court of Appeal will depart from the established practice of postponing hearings. This is in instances such as; (1) where it appears to be redundant to postpone an appeal based on the nature or circumstances of the matter at hand, or (2) where the issue under appeal is narrow or primarily procedural. Despite these noted exceptions, the discretion of the court still remains exercisable depending on the facts and issues of each case.

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