Recent Cases

Attorney General and Another v Oleaster (Pty) Ltd and Another

Attorney General and Another v Oleaster (Pty) Ltd and Another – CVHGB – 000979 -17 (Judgment issued on the 13^th March 2023) Per Motswagole J.

Bogopa Manewe Tobedza & Co (BMT & Co), acted on behalf of the Attorney general and the Ministry of Mineral Energy Resources, Green Technology & Energy Security in a matter where one of the companies in the main suit, called Oleaster (Pty) Ltd, had attached and removed 9 Ministry motor vehicles through the deputy sheriff. BMT & Co. filed papers with Court and requested the Court for an urgent hearing, and that the Order (Writ of Execution) that authorised the attachment of the vehicles be set aside and the vehicles be returned to the Ministry.

The Court held that:

• the matter was sufficiently urgent and heard it as such. The attachment and removal of the vehicles was recent, and further, the ministry/government’s operations were disrupted. The law required that the facts giving rise to urgency should be explicitly set out, and that the aggrieved party ought to demonstrate how he would not be afforded substantial redress in due course. The court was satisfied that these two requirements had been met.

The court  further observed that:

• the Writ of Execution issued by the Registrar had been issued without any Order of court declaring that the Ministry owed Oleaster (Pty) Ltd any money. The attachment and removal of the vehicles/goods was consequently without a legal basis. The law required that a writ of execution ought to be based on a judgment of court declaring clear indebtedness. The Writ of Execution was set aside and the seized motor vehicles ordered to be restored to the government forthwith.

Costs on a punitive Scale

The Court was not impressed with Oleaster (Pty) Ltd.’s attitude/behaviour of persisting with and retaining the Ministry’s vehicles on the face of clear evidence that there was no judgment. This, the Court labelled, abuse of Court process and unconscionable. The Court Ordered that Oleaster (Pty) Ltd should pay the Ministry costs of the case on attorney and own client scale, which is a punitive costs order. Punitive costs orders are issued against a person (including other entities) who, through their unreasonable conduct during litigation, causes the adversary to be unnecessarily put out of pocket.

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Botswana Congress Party & 2 Others vs. Attorney General & 5 Others

Botswana Congress Party & 2 Others vs. Attorney General & 5 Others – CVHMN – 000018 – 22

Botswana Congress Party (BCP) issued a Writ of Summons against The Attorney General, Kabo Morwaeng, Tautona Lodge, Christiaan De Graaf, Patrick Mathe and the PPADB, asking the Court to declare that the acquisition of Tautona Lodge (Pty) Ltd.’s entire shareholding was marred with illegality for failure to follow procurement laws. The summons was issued on the 14^th February 2022. Bogopa, Manewe, Tobedza & Co. (BMT& Co.) was instructed by the Attorney General to defend the suit on behalf of  government. In response, BMT & Co. took several legal objections against the way the BCP had approached Court. One of the objections was that the manner of approaching the Court by BCP amounted to an abuse of Court process on account of the fact that BCP issued a Summons when it ought to have first requested the Court for an indulgence to file a review application outside the statutory 4 months. This was because the Government was recorded as a shareholder in the CIPA register on the 18^th May 2021, and that the four months within which BCP should have filed a review application lapsed in September 2021. Resultantly, BMT & Co. requested the Court to dismiss the matter with costs.

The Court held that there was merit in BMT & Co.’s objection and upheld it. It observed that the adoption of a Writ of Summons by the BCP was a clear stratagem to evade the statutory limitation of 4 months within which review proceedings are to be brought. The Court observed that BCP, through one Dumelang Saleshando, who was a co-Plaintiff, had long before the court case, been made aware and provided with information  that showed that the Government acquired shareholding of Tautona Lodge on the 18^th May 2021, but that the Plaintiffs proceeded heedlessly despite this information. The Court held that the attitude of BCP was reprehensible and nigh dishonest. In that regard, the Court not only ordered a dismissal of the matter, but also that BCP, Dumelang Saleshando and Goretetse Kekgonegile (all Plaintiffs) should pay costs of suit on a punitive scale.

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