The state has won the first round in a case in which Roy Sesana and Keiwa Setlhobogwa are demanding an estimated amount of P2 million in legal costs arising from a case in which some Basarwa had successfully challenged their forced relocation from the Central Kalahari Game Reserve (CKGR).
This comes after Lobatse High Court judge, David Newman, ordered lawyers representing Sesana and Setlhobogwa to go back and to, within 60 days, clearly establish the identities of all the applicants in the application before the Court.
They have also been ordered to show authority of the persons alleging to be acting on behalf of the other applicants in the matter.
Failure to do this, Newman said, would end with the matter being dismissed with costs.
In issuing this order, Newman concurred with judges Unity Dow and Maruping Dibotelo who, in their 13 December, 2006 judgment, stressed on the issue of the need for the applicants to be clearly identified.
In her judgment on the issue, Dow had asked who the applicants were and she then answered the question by stating, “Of the original applicants there are 215 applicants still living, 182 who are represented by Bennett on the instructions of the law firm of Boko, Motlhala, Rabashwa and Ketshabile.
“The remaining 29 were not represented and they remain litigants on paper only. Notwithstanding having launched the case, they remain parties to the case and are bound for better or for worse by the decision of this Court. They had ample time over the last four years to withdraw from the case if that is what they wished.”
Dibotelo, for his part, said that although there had been 243 applicants when the proceedings were instituted, due to deaths of some and the failure of others to prosecute their claims, 189 applicants pursued the case to finality.
He said that it was important for the applicants to be clearly identified as the outcome of the action would only bind those persons.
Judge Newman said this finding would also hold true in respect of any appeal and that it could not be simply assumed that all applicants to the main application, whether they be 215, 189 or any other number, now seek to appeal against the costs order made by trial Court, if, for no other reason, some of the individuals may not wish to be subject to an adverse costs order in the event the appeal being unsuccessful.
He said that if there is uncertainty on the identity of the applicants to the current application the risk of actions of attorneys being repudiated by one or more of the original applicants remains ever present.
Newman, in his order, further said that he was of the view that it will not be safe to proceed with the determination of the merits of the present application on the basis contended by lawyer Bennet that his clients procedural difficulties are resolved by simply amending the notice of motion by addition of words “and further applicants” in the heading and by substituting the name of the deponent, Matsipane Mosetlhanyane, for those of Roy Sesana and Keiwa Setlhobogwa, in reference to the supporting affidavit.
He further said that it is trite that an applicant’s case stands or falls on its founding papers for that is the case that the respondent is called upon to answer, adding that nor is it the function of a replying affidavit to contain allegations designed to cure omissions and irregularities in the launching affidavits and that this was what the first applicants endeavoured to do in their affidavit filed in reply to the respondents’ answering papers.
The identities of all applicants to an application, he said, should be discernable from the founding papers and that, if one person purports to speak on behalf of such individuals, the basis for his authority to do so should be clearly established and that this was not done and the state application wins in its preliminary arguments.
On whether the finding necessarily dooms the application to failure, Newman said, “In all the circumstances, I do not believe it does. A just and fitting order, in my view, would be one which, subject to an appropriate order as to costs, permits applicants a further opportunity to clearly identify themselves and for the person or persons who purport to act on their behalfs to establish palpable mandate to do so.
Further to that, I am of the opinion that having regard to the peculiar circumstances of the trial, not least of which the sheer volume of evidence adduced before the Court and that each of the three judges delivered distinct judgments, the merits of the application for leave to appeal the costs order should be argued before the judges.”