IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT LOBATSE

Court of Appeal Civil Application No. CACLB-063-08

High Court MISCA-191-01

In the matter between:

SIXHELE SYNDICATE 1st Appellant

MPHAKEDI TEMETU 2nd Appellant
GAONTHUSE MONNAESI 3rd Appellant
GAKEOTSWE TEMETU 4th Appellant
GAONAKAGO MANKOI 5th Appellant
MOGELE TEMETU 6th Appellant
MOLATUDI DITLHOBOLO 7th Appellant
KEMONEETSWE TEMETU 8th Appellant
OGANNE MONTSHOSI 9th Appellant

And

KATAI BROTHERS SYNDICATE Respondent

Mr. D. Leburu for the appellants
Mr. M. Mthimkhulu for the respondent

JUDGMENT

CORAM: TEBBUTT J P
LORD COULSFIELD J A
HOWIE J A
LORD COULSFIELD JA

1. This is an appeal against an order of the High Court (Walia, J.) dated 20

September 2007, evicting those members of first appellant, Sixhele

Syndicate, who were in occupation of a certain borehole site. Eight

individuals have been cited as co-appellants. They were not cited in the

proceedings a quo. Save as indicated otherwise I shall confine reference

to the appellants to the first appellant and call it “Sixhele Syndicate”. The

respondent is Katai Brothers Syndicate, for convenience “Katai Brothers”.

2. Following upon a decision of the Land Tribunal on 12 February 1999, the

right to use the site (which is at Sixhele in the Kgalagadi District) was

granted to Katai Brothers by the Kgalagadi Land Board in terms of the

Tribal Land Act (Cap. 32:02) and a certificate dated 19 September 2000

was issued accordingly.

3. The decision of the Land Tribunal (the Tribunal) was made on appeal to it

by Katai Brothers, the site having been initially granted to Sixhele

Syndicate. In terms of the decision the initial grant was cancelled and the

site was allocated to Katai Brothers. Sixhele Syndicate had a right to

appeal to the High Court against the Tribunal’s decision on a point of law

within eight weeks of the order: section 6(11) of the Tribal Land

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 (Establishment of Land Tribunals) Order, 1995 enacted in terms of the

Act. Such right was not timeously exercised and, through various of its

members, Sixhele Syndicate remained in occupation of the site and is still

in occupation.

4. On 10 May 2001 Katai Brothers brought the application which ultimately

resulted in the order against which Sixhele Syndicate now appeals (the

eviction application). In the papers Katai Brothers was alleged as

comprising Bennett Moffat Katai and his brother, Othusitse. On the same

date, Sixhele Syndicate notified its opposition to the eviction application

and lodged a counter application for leave to appeal out of time against

the Tribunal’s order and a stay of execution of that order (the counter

application).

5. On 20 July 2001, Sixhele Syndicate also lodged an application for the

review and setting aside by the High Court of the Tribunal’s decision.

That application (the review application) was opposed by Katai Brothers.

6. In June 2004 a written document bearing the case heading of the eviction

application and entitled “Settlement agreement” was signed on behalf of

Katai Brothers, and ostensibly on behalf of Sixhele Syndicate by an

attorney, Mr M Dikgokgwane. It was made an order of the High Court by

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 Marumo J on 18 June 2004. (I shall refer respectively to “the settlement”

and “the settlement order”.)

7. On 19 August 2005 Sixhele Syndicate filed an application for an order

staying execution of the settlement order, rescission of that order and

referral of the site dispute to the Tribunal for re-trial (the rescission

application). Sixhele Syndicate alleged that Mr Dikgokgwane had had no

authority to enter into the settlement.

8. In opposing the rescission application, Katai Brothers filed an affidavit by

one of its two members, Mr B M Katai. He made detailed allegations

stating that the settlement was preceded by a meeting at the offices of

Katai Brothers’ attorneys on 4 July 2002 involving discussions participated

in by three members of Sixhele Syndicate and Mr Dikgokgwane. The

discussions resulted in an oral agreement reflected in a letter dated 9 July

2002 from Katai Brothers’ attorney to Mr Dikgokgwane. The terms of

such oral agreement were incorporated in the settlement and the

settlement order was made by consent.

9. In its replying affidavit in the rescission application Sixhele Syndicate now

denied that the agreement alleged by Katai Brothers was entered into.

Further, it was repeated that Mr Dikgokgwane had no instructions to

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 conclude such an agreement. Two of the three members referred to by

Katai Brothers made supporting affidavits in which they admitted

attending the meeting of 4 July 2002 but denied that the alleged

agreement or any agreement was reached.

10. In summary, the case for Sixhele Syndicate as stated in its papers in the

various applications (excepting those aspects already mentioned) was as

follows. Having been allocated the borehole site initially, it claimed to be

the party entitled to exclusive occupation and use. The Tribunal’s decision

was therefore wrong. It did not appear before the Tribunal despite what

it asserted was a good case on the merits because it received no notice of

Katai Brothers’ appeal to that body. On 20 May 1999 it came to know of

the Tribunal’s decision and of the period in which an appeal against the

decision had to be prosecuted. In that regard two members instructed

attorneys, Bayford and Associates (Bayford), to appeal. That was on 25

May 1999. Because of what the members considered as delay by Bayford

they terminated its mandate. That was on 6 June 2001. They then

engaged the services of Mr Dikgokgwane. He said they were out of time

for an appeal but could request the High Court’s indulgence. (It would

seem that Sixhele Syndicate or its legal advisors regarded the prayer for

an order for leave to appeal as the appropriate way to request the

required indulgence.) In support of its case in the counter application

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 Sixhele Syndicate included an affidavit by Kgebethu Lekgobero, Headman

of Gapanyana Ward, in Kang. He claimed to have witnessed the

allocation of separate boreholes at Sixhele to Katai Brothers and Sixhele

Syndicate respectively, by the Kgalagadi Land Board on 20 February 1993.

His affidavit does not enable one to determine however, which of the two

boreholes was the one presently in contention. Apart from asserting that

it was the party entitled to the use of the site, Sixhele Syndicate also

maintained that if it had to vacate, it ought to have been awarded

payment of compensation for developments it had made to the site, in the

absence of which award Katai Brothers would be unduly enriched.

11. In the founding affidavit in the rescission application a somewhat different

picture emerged. As to why Sixhele Syndicate was not represented before

the Tribunal, it was said that this was due to the failure by Bayford, their

then attorney, to “stage an appearance” despite their fees having been

paid. It was also asserted that when Mr Dikgokgwane took over their

case he was instructed to institute proceedings for rescission of the

Tribunal’s decision. His fees were duly paid and time passed. He always

informed them that the matter was being attended to and it was therefore

to their surprise that, on 18 June 2005, they received the settlement order

and learnt that Mr Dikgokgwane had entered into the settlement.

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12. The case for Katai Brothers, apart from what I have already indicated, is

that as regards the failure by Sixhele Syndicate to appeal timeously, a

significant letter was written by Bayford to attorneys Moeletsi and

Motumise who have acted throughout for Katai Brothers. Dated 9 August

2000, it contains the following:

“The judgment of the Land Tribunal in respect of the above

matter has been placed before us with instructions to
consider the merits and demerits of an appeal.

We have carefully considered the judgment and come to the

conclusion that the portion dealing with the developments
that our clients had undertaken may possibly be reversed in
the event clients seek review of the decision. Our position is
that the appellant ought to have been ordered to
compensate our client because otherwise there has been an
undue enrichment of the estate of the Katai Brothers.

We are in the process of taking instructions with respect to

the value of the developments undertaken prior to the
judgment of the land tribunal and are therefore not in a
position to state the value at this stage. What we would
kindly wish to find out from yourselves is whether or not
yours would be willing to compensate ours for the
developments.”

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13. As stressed by Katai Brothers in their papers in the eviction application,

that letter conveyed acceptance of the Tribunal’s decision save for the

failure by the Tribunal to order or consider compensation for

developments. There was no intention to appeal and merely the

possibility of a review. Indeed, in response to Bayford’s letter, Moeletsi

and Motumise wrote on 7 November 2000 that any developments should

be removed and the site vacated, failing which an eviction order would be

sought. Despite that response it was only when the eviction application

was brought in May 2001, that Sixhele Syndicate first notified its intention

to appeal.

14. As regards the rescission application, the case for Katai Brothers was, as I

have already indicated, that the settlement discussions and conclusion of

the settlement involved the participation and agreement of three

members of Sixhele Syndicate and their then attorney.

15. Shortly before the hearing in the court below Sixhele Syndicate intimated

its intention to argue that neither party had locus standi because neither

was an entity recognised in law and that, in consequence, the proceedings

were a nullity from the outset. On the locus standi aspect the court

below, with reference to Morenane Syndicate and Others v Loeto

[2005] 2 BLR 37 at 40, concluded that the parties here were groups of

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individuals operating to promote their common interest and that the citing

of the parties using their syndicate names was merely an expedient or

convenience and the parties to the litigation were really the individual

members of the syndicates. They were entitled to assert and defend their

rights and the locus standi point was accordingly bad. On the question of

the belated attempt to appeal and review, the court held that the length

of the delay was unconscionable and that the delay and the

correspondence I have referred to established peremption of the right to

appeal. The court added that the delay was inadequately explained and

that the alleged absence of notification of the pending appeal to the

Tribunal was in any event not a tenable explanation in view of the

Tribunal’s specific finding that notice of the pending appeal before the

Tribunal was sent timeously by registered mail to Sixhele Syndicate. As to

the rescission application, the learned Judge considered that it had been

brought unduly late without having been acceptably explained. What was

more, Sixhele Syndicate’s alleged ignorance of the settlement order until

half-way through 2005 was, in the court’s view, such that it could, even

on the papers, be labelled as palpably false. In the result, the eviction

application succeeded.

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16. The appellant’s notice of appeal lists various respects in which it is said

that the learned Judge erred. These points are repeated at the close of

their heads of argument. Summarised, they amount to this:

1. Katai Brothers did not constitute an entity recognised in law and

therefore has no locus standi. Accordingly the eviction
application, the Tribunal’s judgment and the settlement order
were all nullities.

2. Mr Dikgokgwane had no authority to act on behalf of the

appellants.

3. The settlement order was granted in error within the meaning

of Order 48(1) of the High Court Rules.

4. There was no evidence before the Land Tribunal or the High

Court that the address to which notification of the Tribunal
hearing was sent was the address of Sixhele Syndicate.

5. On the evidence, particularly that of Headman Lekgobero,

Sixhele Syndicate was the lawful owner of the borehole in issue.

17. Both in their heads of argument and in their oral submissions, the

appellants put the question of locus standi in the forefront of their

argument, no doubt on the view that if it were held that the Tribunal’s

judgement and the whole proceedings flowing from it were nullities, the

mere lapse of time, reasonable or not, could not render them valid. In

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dealing with this issue, the learned judge began by lamenting the absence

of any assistance from either counsel as to the status or structure of

either the appellants or the respondents. He referred to the decisions of

Kirby J in Morenane Syndicate and Others v Loeto supra and Collins J

in Masowe Syndicate v Motlaadile 2001 (2) BLR 751 and observed

that syndicates involved in cattle ranching and watering fell into two broad

categories. He explained:

“…the more sophisticated cattle ranchers tend to formalize

their relationships by incorporating their wishes in a
constitution providing inter alia for the syndicate to have the
right to own property independent of its members, to enter into
contracts and to sue and be sued in its own name. Such
syndicates become legal persons or universitas personarum.

The other category comprises cattle owners enjoying the use of

communal watering points but choosing not to be bound by

written rules or constitutions. Such groups also describe

themselves as syndicates but without constituting their

groupings as a universitas. In the context of such groups, the

word syndicate is loosely used and connotes no more than the

ordinary meaning assigned in the Concise Oxford Dictionary as

“a group of individuals combined to promote some common

interest.””.

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18. The judge went on to refer to the description of the respondents in the

founding affidavit in the High Court proceedings. In it, the deponent

Bennet Moffat Katai said that the applicant was a syndicate of which he

was a member together with his brother. In the same affidavit, he

described the appellants as a syndicate presently occupying and using the

borehole site. Similarly, the judge observed that in the answering affidavit

the deponent described the appellants as a syndicate of which he was a

member together with nine named others. He referred to other sections of

the founding and answering affidavits in which the appellants and the

respondents were referred to in the plural and concluded that the real

parties to the proceedings before him were the members of the two

syndicates. He then observed that the real question for him was whether

citing the syndicates rather than their individual members rendered the

proceedings void. He continued:

“No material has been placed before me on the nature of the

relationship, business or otherwise, between the parties and it
would be unwise to speculate on the nature of that
relationship. The overwhelming probability, based on
averments over a period of six years, however, is that both
parties are syndicates in the sense of groups of individuals
combined to promote common interests and I so find.

I have little hesitation in concluding that the citing of the

syndicates without referenced to their individual members was

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 an expedience to avoid citing each member of each syndicate
separately and therefore in stricto sensu the syndicates have
not sued or been sued in their own names. It follows that the
challenge to the locus standi as formulated by the respondents
is unwarranted and without merit.”

19. In the appeal before us, the submission, as it appears in the appellants’

heads of argument, is as follows:

“All the matters set out [the Land Tribunal judgement and the
orders of Marumo J and Walia J] are a nullity ab origine by
reason of the fact that no order of Court can be granted
against any person and/or in favour of any person no matter
how meritorious that order may be except when the Court
knows against who or in favour of who is the said judgment
and/or order being granted against.

Ex facie all the papers filed of record there is no evidence of

who Katai Brothers are. Consequently, it is the respectful
submission of the appellant that the entire proceedings are
liable to be struck off, including but not limited to the judgment
of the Land Tribunal granted on the 12th of February 1999.”

20. That proposition was developed in oral argument by reference to the

cases of Morenane Syndicate and Others v Loeto and Masowe

Syndicate v Motlaadile cited above. It seems to me, however, that

those cases are principally concerned with the question whether in the

particular circumstances the party named as a “Syndicate” was or was not

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 a universitas, and are of no direct relevance in the present case. As Walia

J observed, a syndicate may or may not be formally constituted and may

or may nor be a universitas. We were not referred to any authority which

might suggest that what Walia J said was incorrect or that the Land

Tribunal is not entitled to make an order conferring a right to a borehole

on a syndicate which is not a universitas. If it makes such a grant, the

right will belong to the members: in the absence of some constitution, the

members may have difficulty in regulating their affairs if a dispute arises,

but that is not relevant to the present issue. If court proceedings become

necessary, Order 18 permits an association to sue or be sued in its own

name, and any practical problems can be resolved by reference to Rule 4,

which permits the opposing party to require information about the

members. In any event, as was pointed out during the hearing, the

founding affidavit of Bennet Moffat Katai in the eviction proceedings states

that the members of the syndicate Katai Brothers are the deponent and

his brother: and the members of the appellants syndicate were identified

in the answering affidavit of Keorapetsi Monnaesi in 2001. In these

circumstances, in my opinion, the submission that the whole proceedings

are a nullity falls to be rejected.

21. The other four points made by the appellants all relate in one way or

another to the merits of the decisions in the various applications which

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 have been listed above. These submissions cannot be considered unless

the appellants are first allowed leave to proceed with the applications for

leave to appeal and for review and for the rescission of the order of 18

June 2004, despite the lapse of time. Walia J reviewed the whole course

of proceedings and summarised the process as follows:

“The Land Tribunal judgment is handed down in February

1999. The respondent remains supine, awaking only two years
later, when the applicant launches the application for eviction
by filing a counter application and application for review. A year
later, negotiations result in an agreement between the parties
which agreement is made an order of the court. No action is
taken by the respondent to express its dissatisfaction with the
order. The applicant once again takes steps to reclaim the
borehole in June 2005. Once again the respondent awakens
from its slumber and launches an application for the setting
aside of Marumo J’s order. ….The application was launched in
August 2005, more than a year after the order sought to be set
aside was made. Litigants have a duty to bring their cases to
court timeously…”

22. Walia J reviewed a number of excuses made by the appellants for these

delays and found them inadequate or spurious. In the appeal before us,

some of these explanations were repeated, notably the allegation that the

appellants’ successive attorneys had been guilty of delay. It was

submitted that the appellants were only farmers, and that, despite the

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 indications to the contrary in the letter from Bayford in 2001 and the

purported settlement in 2004, they had always wanted to retain their

rights to the borehole and nothing less. They had changed their lawyer in

the attempt to move matters on, without success and they had not

authorised any settlement. There is, it seems to me, nothing to bear out

the allegation that their delays were the responsibility of the attorneys,

and it would be surprising to say the least if the appellants, who were

threatened with the loss of their borehole, had been quite content to allow

their attorneys to let the matter drift as it has done. In any event, the

appellants must accept some responsibility for the actions of their

attorneys. On the whole matter, in my opinion, there has been

unconscionable delay on the part of the appellants, and the appeal falls to

be dismissed.

23. It is therefore ordered that the appeal against the order of Walia J dated

24 September 2007 is dismissed. The appellants shall pay the costs of the

appeal.

DELIVERED IN OPEN COURT AT LOBATSE ON THIS 30th DAY OF

JANUARY 2009.

………………………
LORD COULSFIELD
JUDGE OF APPEAL

I agree ……………………….
P. H. TEBBUTT
JUDGE PRESIDENT

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I agree ………………………..
C. T. HOWIE
JUDGE OF APPEAL

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