IN THE HIGH COURT OF BOTSWANA HELD AT LOBATSE

Transcription

1 IN THE HIGH COURT OF BOTSWANA HELD AT LOBATSE In the matter between: CVHLB TSWEDISANG GOFHAMODIMO Applicant And SAM KOBOYANKWE NGWAKETSE LAND BOARD KEBONYEKGOSI TEBELE 1 st Respondent 2 nd Respondent 3 rd Respondent In re: SAM KOBOYANKWE Plaintiff and TSWEDISANG GOFHAMODIMO NGWAKETSE LAND BOARD 1 st Defendant 2 nd Defendant Mr. Attorney D.B. Leburu (with him Mr. G. Lekgowe) for the Applicant Mr. Attorney M.W. Makuyana for the 1 st Respondent LEBURU J: JUDGMENT 1

2 1. The applicant, by way of notice of motion, brought an urgent application seeking the following orders:- (a) dispensing with the normal forms and service provided for in the rules of court and disposing of this matter as one of urgency; (b) rescinding and setting aside the default judgment granted on the 16 th September 2010 and all processes issued pursuant thereto; (c) staying or setting aside any steps of execution of the judgment taken by default on the 16 th September 2010; (d) ordering the 2 nd respondent not to efface the applicant s name from the Lease Agreement until this matter is concluded; (e) ordering the respondent to pay the costs of this application, and (f) further or alternative relief. 2

3 2. The present application was opposed by the 1 st respondent. 3. Before delving into the merits or otherwise of this application, it is pertinent that I lay a foundation in the form of a brief background of this matter. 4. The applicant is the 1 st defendant in the main suit whilst the 1 st respondent is the plaintiff. In the said main suit, the plaintiff primarily sued the 1 st defendant and sought an order expelling the 1 st defendant, as a member of a syndicate, from the said syndicate; and also claimed against the 1 st defendant payment of the 50% of all the sum of money that the plaintiff had expended on the said farm and other related claims. The applicant and the 1 st respondent are members of a two-member syndicate. At all material times and before this application was filed, the applicant was represented by Bayford Botha Attorneys, particularly Mr Bayford. 3

4 5. Acting in terms of Order 42 of the Rules of the High Court, the main suit was accordingly case managed. On the 21 st July 2010, as part of case management that ensued, the following Order was issued; namely:- (a) The application to compel the giving of further particulars is dismissed with costs; (b) By consent, the 1 st defendant is to file his plea by the 6 th August Any replication to be filed by the 18 th August 2010; (c) The parties shall meet on the 23 rd August 2010 at the plaintiff s attorneys office at 3:00 pm; (d) The plaintiff shall file the proposed final pre-trial order by the 30 th August 2010; (e) Matter shall be set down for final conference on the 16 th September 2010 at The applicant breached the said scheduling order by failing to file a plea. In consequences thereof, the plaintiff sought final judgment in terms of Order 42 Rule 4

5 11(c) on the 16 th of September 2010, the date set for final conference and I accordingly granted final judgment thereof. It is this judgment that the applicant is now seeking its rescission under common law and the stay of all processes emanating therefrom. 7. At this juncture, it is critical that I examine Order 42 Rule 11(c) under which the Order was granted. The said Order states as follows: 11. If a party or his Counsel fails without lawful excuse to attend an initial case management conference, additional case management conference, or final pre-trial conference, fails to participate in the creation of a case management report or proposed final pre-trial order, fails to obey a case management order or final pre-trial order, or fails to participate in the case management or final pre-trial processes in good faith, the judge may enter such orders as a just, including but not limited to the following:- 5

6 (a) (b) (c) an order dismissing a claim or entering final judgment (my emphasis) (d) In this case, it is common cause that the applicant and her erstwhile attorney failed to file a plea as ordered. They further failed to attend final conference as scheduled. No excuse or reasons were given for such non-compliance. In its exercise of discretion as granted by Order 42 Rule 11(c), the court entered final judgment. 9. The immediate legal issues that arises herein are the following, namely what is a final judgment and secondly whether such a final judgment can be rescinded. A final judgment, being res judicata, cannot ordinarily, be set aside or rescinded unless there are compelling reasons or grounds thereof, such as fraud, error or procedural irregularity. As a matter of general application, once a 6

7 final judgment has been granted, the court which granted such a final judgment becomes functus, subject of course to some exceptions. Black s Law Dictionary, 7 th Edition, defines a final judgment as a court s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs and enforcement of the judgment. 10. In this case, the judgment I granted finally determined the matter, or was definitive in its nature, regard being had to the relief that was sought by the plaintiff in the main suit and which relief was accordingly granted. The fact that the final judgment was granted in default of filing of a plea does not assist the applicant in any way. That is so because Order 42 Rule 11(c) is succinct and crisp in that it treats such a judgment entered due to non compliance with a case management order as a final judgment, and once a final judgment has been issued, the issuing court has no further and subsequent authority to amend, vary, supplant or rescind same, 7

8 subject to some exceptions. I am fortified thereof by the case of MONNANYANA v THE STATE [2002] 1 BLR 72 (CA) where Tebbutt A.J.P (as he then was) said at page 78:- The general principle, now established both in South African law 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 thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased (see Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 at 306 F-G and cases therecited; Tlhalefang v The State (1999) 1 BLR 555 (CA), Mminakgomo & Others v The State (1998) BLR 395 (CA). In the Firestone case, supra, the court stated that there were four exceptions to the general principle and that the court may correct, alter or supplement its judgment or order; (i) in respect of accessory or consequential matters eg costs or interest on a judgment debt which the court overlooked or inadvertently omitted to grant (ii) in order to clarify it if its meaning is obscure, ambiguous or uncertain provided it does not alter the sense or substance of the judgment or order; (iii) to correct a clerical, arithmetic or other error in expressing the judgment or order but not altering its sense or substance; (iv) making an appropriate order for costs which had not been argued, the question of costs depending on the court s decision on the merits of the case. 8

9 11. I entirely associate myself with the above exposition of the law. See also BRIGITTE VANDECASTEELE & ANOTHER v AGS CONSTRUCTION (PTY) LTD, COURT OF APPEAL CIVIL CASE NO (yet to be reported), and KOBEDI v THE STATE (2005) 2 BLR 76 (CA). 12. In this case, the applicant s attorney has intimated that this application for rescission was based on common law and not Order 48 of the High Court Rules. In my view, even if the application is brought under common law, I am precluded from rescinding my final judgment because my jurisdiction in the matter has been fully and finally exercised, even at common law. I have also noted that the exceptions relating to alteration, variation or amendment of final judgments as outlined in the Firestone case, cited supra, and such exceptions are not applicable herein. It has not been shown that the said final judgment was errorneously sought or granted without notice to the applicant, or that it is laden with errors or ambiguities. 9

10 12. The concept of functus officio is premised on public policy consideration of finality to law suits and hence the maxim interest reipublica ut sit finis litium becomes relevant. I am therefore precluded from rescinding my final judgment. 13. In conclusion, this court granted final judgment on the 16 th September 2010 and became functus and furthermore, there are no exceptional grounds justifying a departure from the general rule alluded to supra. The remedy that is available to the applicant is to lodge an appeal against my final judgment. 14. The application is accordingly dismissed with costs. DELIVERED IN OPEN COURT AT LOBATSE THIS 22 ND DAY OF DECEMBER M. LEBURU (JUDGE) Monthe Marumo & Co representing the Applicant Makuyana Legal Practice representing the 1 st Respondent 10

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