Key Benefits:
This Part shall apply to appeals from the High Court, the Industrial Court or any other tribunal from which appeals lie to the Court in civil cases, and to matters related thereto.
Where an appeal lies to the Court as of right, such appeal shall be right instituted in the form of a notice of appeal signed by the appellant or the legal practitioner representing him. The appellant shall deliver, or cause to be delivered, such notice to the Registrar of the court below and shall at the same time serve a copy of such notice on the Registrar of this Court and on each respondent. The Registrar shall, subject to the provisions of these Rules, date and register such notice on receipt thereof.
(1) a notice of appeal shall set forth the grounds of appeal and shall state the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal. It shall also have endorsed on it an address within Botswana for service.
(2) If the grounds of appeal allege misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative, and these shall be numbered consecutively.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court on its own motion or on application by the respondent.
(5) The appellant shall not, without the leave of the Court, urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.
(6) Notwithstanding the foregoing provisions, the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant:
Provided that the Court shall not, if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.
19. Time for filing notice of appeal
(1) A notice of appeal shall be filed within six weeks of the date of the judgment or decision appealed against.
(2) Neither the Registrar of the court below nor the Registrar of this Court shall accept or register any notice of appeal which is presented after the expiration of the said period unless leave to appeal out of time has been previously obtained from this Court.
(3) A notice of appeal which is presented out of time without leave shall be endorsed as being out of time, shall be date stamped, and shall be returned to the presenter, with a similarly endorsed and date stamped copy to be retained on the file of the court below.
(4) An application for leave to appeal out of time may be filed on notice at any time within three months of the date of the judgment or decision appealed against but shall not be granted unless in the accompanying affidavit an acceptable reason for the delay is advanced and unless the appeal has reasonable prospects of success.
(5) No application for leave filed thereafter shall be granted unless there are exceptional circumstances accounting for the delay, and very strong prospects of success are shown.
(6) An application for leave to appeal out of time shall be accompanied by the proposed notice and grounds of appeal.
(7) When leave to appeal out of time is granted, a copy of the order granting such leave shall be annexed to the notice of appeal, and the notice and grounds of appeal filed with the application shall stand as being duly filed.
(1) Where an appeal lies only by leave of the Court or of the court Appeals by below the application shall be made on notice of motion stating shortly the grounds upon which the application is made. The application shall be supported by an affidavit deposing to all relevant facts, and shall be accompanied by the proposed notice and grounds of appeal.
(2) Where the application is to this Court, the affidavit shall in addition state, where applicable, that leave has been refused by the court below, and shall have annexed the judgment of the court below and the order or ruling refusing leave.
(3) Any respondent wishing to oppose such application shall file and serve a notice of opposition accompanied by an affidavit setting out his grounds of opposition within two weeks of receipt of the notice of motion.
(4) If leave to appeal is granted, a copy of the order granting leave shall be annexed to the notice of appeal, and the notice and grounds of appeal filed therewith shall stand as if duly filed and served on the date upon which leave is granted.
(1) Every person who by virtue of service on him of a notice of appeal becomes a respondent to any appeal shall within three weeks of such service file with the Registrar of the court below, and serve on the Registrar of this Court, on the appellant, and on any further respondents a notice of his intention to oppose the appeal, or to abandon the judgment appealed against, or to cross-appeal, or to raise preliminary points, or to abide the decision of the Court, as the case may be, and shall include in such notice a full and sufficient address for service and, where applicable, grounds of cross-appeal, or reasons why thejudgment appealed should be varied or affirmed on different grounds, or particulars of preliminary points to be raised.
(2) If any respondent fails or omits to file such notice or to provide an address for service, it shall not be necessary to serve on him any other proceedings in the appeal or any notice of hearing thereof.
(1) Upon expiry of the time for response granted in terms of rule 21 (1) or upon receipt of the response, whichever may be earlier, the Registrar of the court below shall-
(a) in the case of appeals from any court or tribunal sitting in the southern region of Botswana forthwith forward the full original file of proceedings to the Registrar of this Court; and
(b) in the case of appeals from any court or tribunal sitting in the northern region of Botswana forthwith forward the full original file of proceedings to the Registrar of that court assigned to settle Court of Appeal records.
(2) The Registrar of this Court or the assigned Registrar, as the case may be, shall, within three weeks of receipt of the file of proceedings, summon the parties upon reasonable notice to appear before him to-
(a) settle the documents to be included in the record of appeal;
(b) fix the amount to be paid by the appellant to cover the estimated cost of transcribing (where necessary), making up and forwarding the record of appeal, calculated at the prescribed rates, being the full cost of one copy for the appellant and one fifth of the cost of the further five copies required to be produced, provided that photocopying charges shall be met in full at the prescribed rates;
(c) fix the amount to be provided by the appellant as security for the respondent's costs of the appeal and
(d) set a date by which security is to be so provided and by which the cost of the record is to be paid.
(3) No security for costs, nor transcription costs, shall be required from any respondent who cross-appeals.
(4) Such Registrar shall, whether any of the parties attend or not, provided that notice has been duly served upon each of the parties who filed an address for service, proceed to settle and determine these matters in accordance with the Rules.
(5) The Registrar shall forthwith issue an order stating his determination of the cost of the record and the amount of security required together with the deadline date for compliance and shall deliver such order to the party or parties attending for settlement.
(6) If either or both parties fail to attend, and the determination is made in their absence, the Registrar shall forthwith serve a copy of the order upon the appellant, who shall within seven days serve all other parties to the appeal with a copy thereof and make a return to the Registrar that this has been done.
(7) In settling the record the Registrar and the parties shall endeavour to exclude all documents and parts thereof (if lengthy) which are not relevant or required for the determination of the appeal and shall avoid duplication of documents, so as to minimise the bulk of the record.
(8) The Registrar shall ensure that the record and all documents included therein are in the English language, and that any documents in any other language are accompanied by true translations thereof into the English language.
(9) If the Registrar or any party objects to the inclusion of any document on the grounds that it is unnecessary and any other party insists upon its inclusion, such document shall be included, but shall be endorsed as having been objected to as unnecessary, and such endorsement may be considered in any taxation of costs consequent on the appeal.
(10) Any certificate or document in another language shall be accompanied by a proper English translation thereof.
(1) No record of appeal shall be transcribed or made up before the estimated costs thereof (which shall be a final charge) have, where payable, been paid in full and due security for costs has, where ordered, been provided in the manner directed by the Registrar.
(2) Upon receipt of the cost of the record and upon provision of the required security (or forthwith, upon determining that these do not apply), the Registrar shall, where evidence was taken in the court below, return the full file of proceedings together with a list of the documents required to be included in the record of appeal to the Registrar of the court below, for the record to be transcribed and compiled by the Court Reporter who recorded the trial, and shall make a note on the Civil Register of the date upon which, and the responsible Court Reporter to whom the record was returned.
(3) The Registrar of the court below shall procure that one copy of the record in such a case is transcribed, made up and returned to the Registrar of this Court by no later than six months after the delivery to him of the file of proceedings, and shall return therewith the full file of proceedings in the court below.
(4) Where no evidence was taken in the court below the Registrar of this Court shall cause the record as settled to be assembled forthwith upon due receipt of security for costs and costs of the record.
(5) After compilation, or upon receipt of the transcription from the court below, the Registrar of this Court shall forthwith procure that the record is completed by-
(a) in the case of a received transcription, assembling the record as agreed;
(b) inserting a certificate under his hand that due security has been provided, that the costs of the record have been paid, and that the record is complete as settled with the parties, and adding a note of any information which may be useful to the court relating to delay or difficulties encountered in preparing for the appeal;
(c) inserting any relevant documents or pleadings duly filed after settlement of the record;
(d) paginating the record, and dividing this, where necessary, into manageable binders, each containing no more than 250 pages, but all such binders to be marked with volume numbers, and to have continuing pagination referring back to a single index in the first volume, and sub-indices in subsequent volumes;
(e) including a full index, and any necessary sub-indices; and
(f) preparing the necessary number of copies required for this Court and all parties.
(6) Upon completion and binding of the record the Registrar shall cause one copy thereof to be delivered to the appellant and to each of the other parties to the appeal:
Provided that only one copy of the record need be delivered to more than one appellant represented by the same lawyer or to more than one respondent represented by the same lawyer.
(7) The Registrar shall, upon completion of the record, list the appeal for hearing in its turn, or as directed by the President.
(8) Legitimate additions to the record may be made at the request of the parties or any of them or at the direction of a Judge at any time before the hearing of an appeal, and in each case copies of the added page or pages and an amended index shall be delivered to all parties to the appeal and shall be included in all court copies of the record:
Provided that no evidential matter that was not before the court below shall be so added, save with the leave of the Court granted in terms of Rule 32.
(9) No additions to or amendment of the record shall be made at the request of the parties later than one week after receipt thereof from the Registrar, save with the leave of a Judge.
(1) The appellant shall, within such time as the Registrar shall fix, provide security for costs in the manner directed by him, being either by a cash deposit of the required sum, or by the lodging of a bond, with or without sureties, acceptable to him, properly securing the unconditional payment on demand of the sum so secured upon the dismissal or withdrawal of the appeal:
Provided that no security for costs or costs of preparation of the record shall be required from the Attorney-General or from the Director of Public Prosecutions or from the Law Society of Botswana or from a person who has leave to appeal as a pauper in respect of appeals brought by any of these in their official or permitted capacity.
(2) If the appellant fails to provide the required security for costs or to pay the estimated cost of the record by the date set by the Registrar for such provision or payment the Registrar shall, on notice to the parties, list the appeal for dismissal at the next session of the Court.
(3) The Registrar shall not, unless leave has been granted by the Court, accept or receive any security for costs or record costs tendered after the deadline date set by him, but shall endorse on the order setting that date that lodgement or payment was tendered and declined out of time, recording the date of such tender.
(4) On the calling of an appeal for dismissal in terms of rule 24 (2) the Court may, if it is satisfied that the appellant was aware of the security or sum required and of the deadline date, and no application for condonation of late tendering, or for extension of time for lodgement or payment has been filed, dismiss the appeal; or, if not so satisfied may strike it from the roll; or it may make such other order as justice demands, including an order for costs.
(5) An order dismissing the appeal shall, subject to (6) below be final, while an appeal which has been struck from the roll may be re-instated upon good cause being shown in an application brought on notice to all other parties to the appeal.
(6) No application for reinstatement filed more than six weeks after the striking out of an appeal, or filed following dismissal, shall be entertained save in exceptional circumstances and where no fault is attributable either to the appellant or to his legal representative.
25. Amendment, settlement or abandonment
(1) An appellant may amend his grounds of appeal, and a respondent may amend his notice in response, at any time within two or weeks of the filing of the notice in response or of the expiration of the time allowed for such response by filing with the Registrar of the court below and with the Registrar of this Court, and serving on all other parties a notice of such amendment.
(2) No amendment of the grounds of appeal or of the notice in response shall be allowed thereafter save with leave of the Court on good cause shown.
(3) An appellant may at any time abandon or withdraw his appeal upon notice to the Registrar and to the other parties, in which event the appellant shall be liable for all costs up to the date of service of such notice on the respondent or respondents, and the appeal shall be deemed to be dismissed, such dismissal to be entered by a Judge in Chambers, or by the Court if the withdrawal is made at roll-call or at the hearing.
(4) The abandonment or withdrawal of an appeal shall not bar the pursuit by the respondent of a duly filed cross-appeal.
(5) The parties may at any time settle an appeal by filing a joint memorandum of settlement signed by them which may include abandonment or withdrawal of the appeal, or cross-appeal, abandonment of the judgment of the court below or any part thereof, agreement as to costs and disposal of the filed security, and any other lawful matter, in which event the parties may have the memorandum made an order of court by the President or a Judge designated by him and the appeal and any cross- appeal or other response shall be deemed to be concluded.
At any time before the hearing of an appeal, any party to the appeal may file with the Registrar and serve upon the other parties a notice that he does not wish to be present in person or by a legal practitioner at the hearing of the appeal, which notice shall be accompanied by the arguments (if any) that he desires to submit to the Court. The appeal shall thereupon be dealt with as if the party had appeared.
(1) In every civil appeal the appellant shall as soon as possible after delivery to him of the record of appeal, but in any event no later than two weeks before the date assigned for the hearing of the appeal serve on the respondent his full heads of argument and file with the Registrar six copies thereof.
(2) The heads shall deal concisely with each ground of appeal or preliminary point raised, shall be accompanied by a list of authorities to be relied upon, with the relevant passages therein identified, and shall not, without the leave of the Court, deal with issues or grounds of appeal not notified in the notice and grounds of appeal already filed.
(3) The respondent shall as soon as possible, but in any event by no later than one week before the date assigned for the hearing, serve upon the appellant his full heads of argument in reply, and shall at the same time file with the Registrar six copies of these heads, which shall also have attached a list of the authorities to be relied upon with the relevant passages therein identified.
(4) When, however, the time of delivery of the record of appeal does not allow the heads of argument to be filed within two weeks of the hearing, the appellant shall file the same without delay, and the respondent shall thereafter file his argument in reply as soon as possible.
(5) All heads of argument shall bear the name of the author thereof, and of the law firm acting, and shall be signed by or on behalf of the author.
(1) At any time after delivery of the appeal record and before the hearing of a civil appeal there may be filed a request signed by all the parties to the appeal or their legal representatives that the appeal be referred to a Court annexed mediation with a view to the consensual resolution of the appeal:
Provided that no appeal involving constitutional arguments or statutory interpretation shall be settled by mediation, unless arguments relating to such matters are no longer pursued by the parties.
(2) If the President is of the view that the appeal is susceptible to mediation he shall, upon receipt of such application, nominate a Judge of the Court to conduct the mediation.
(3) At the hearing of any appeal the Court may, without prejudice to its usual powers, indicate to the parties its view that a Court annexed mediation may be fruitful and, if the parties all agree, it may postpone the appeal and direct such mediation, whereupon the President shall nominate a Judge of the Court to conduct the mediation.
(4) No party to any appeal shall be compelled to submit to or to participate in a Court annexed mediation unless he has agreed thereto in writing or has signified his consent thereto in person or through his legal representative in open court.
(5) No Judge who has been empanelled to hear an appeal shall be eligible to mediate in such appeal, and no Judge appointed to mediate an appeal shall be eligible to be empanelled to hear the appeal should the mediation fail.
(6) Upon his nomination as a mediator the Judge shall be supplied with a copy of the appeal record and shall, after consultation with counsel for the parties-
(a) set a time limit of no more than three weeks for the filing of mediation briefs by each party;
(b) set a time and venue for a mediation conference to be held by the Judge with counsel and their clients, or persons duly authorised to settle the outcome of the appeal in their principal's interests, which conference shall be held between sessions of the Court; and
(c) Issue an order in terms of (a) and (b) to be served upon the parties.
(7) Each party shall deliver to the Judge's clerk within the time allowed a mediation brief in a sealed envelope marked "confidential" which-
(a) shall be no more than four pages in length;
(b) shall set out that party's view of the real issues of substance between the parties and his view of an acceptable outcome;
(c) may contain details of personal issues and facts not contained in the record, but which may be relevant to the relations between the parties, or the resolution of the dispute;
(d) shall not contain legal arguments; and
(e) may propose solutions to the dispute which would not be available to the Court on appeal.
(8) The mediation briefs shall not be entered in the appeal record, shall be kept confidential to the mediator Judge, shall not be served on the other party, and their contents shall not be revealed to the other party save with the consent of the author party, or to the extent so authorised.
(9) The mediation conference shall be conducted by the Judge in an informal atmosphere, with no requirement for counsel to robe, in his Chambers or at such other location as he may determine, with a view to facilitating a settlement of the issues between the parties ahead of the appeal.
(10) In conducting the mediation it shall be open to the Judge to consult with the parties and their counsel separately on a confidential basis, or jointly, to convey competing proposals, to suggest alternative routes to resolving the conflict, and generally to promote a settlement in a fair and impartial manner.
(11) Where possible, the mediation conference shall be concluded in a single sitting, but exceptionally it may be adjourned by the Judge of his own motion or at the request of any of the parties.
(12) No court fees or mediation charges shall be payable, but the attendances of counsel may be billed and claimed inter se in the normal way.
(13) No record of the proceedings at a mediation conference shall be kept, and nothing said or revealed at such a conference may be used in evidence or disclosed by the Judge or any of the parties to any third party, and in particular to the panel of Judges hearing the appeal, should the mediation be unsuccessful.
(14) The mediator Judge may assist, where appropriate, with the drafting of a settlement memorandum, and if the mediation is successful, the settlement memorandum which may relate to all or part of the appeal shall be typed up and signed by the parties and their representatives and engrossed by the mediator Judge as an order of Court.
(15) Following a mediation, the mediator Judge shall cause the mediation file to be destroyed, and shall forthwith submit to the Registrar or to the appeal panel if such has been convened, either the order of court recording the settlement or part settlement, or a certificate under his hand that the mediation has not been successful.
(16) If the mediation has settled only part of the appeal or if it fails, the appeal shall be listed by the Registrar for hearing at the next convenient session of the Court.
(17) Nothing contained in this Rule shall excuse the parties from submitting heads of argument for the pending appeal in terms of the Rules.
29. Non-appearance of appellant
(1) Subject to Rule 26, if the appellant fails to appear when his appeal is called for hearing at the roll call or on the allotted date, the appeal may be struck out or dismissed, with or without costs.
(2) When an appeal has been struck out for non-appearance, the appellant may upon good cause being shown apply on notice of motion for re-instatement thereof, and the provisions of Rule 24 (5) and (6) shall apply mutatis mutandis to such application.
(3) Where an appeal has been dismissed or struck out, allowed, or otherwise dealt with, the Registrar shall cause the order of the Court to be served upon any party who was not present at the hearing.
30. Non-appearance of respondent
(1) Subject to Rule 26, if the respondent fails to appear when the appeal is called for hearing at the roll-call or on its allotted date, the Court may proceed to hear the appeal ex parte, and the provisions of Rule 29 (3) shall apply.
(2) Where an appeal has been heard ex parte and any judgment has been given therein adverse to the respondent, he may within six weeks thereafter and upon good cause being shown make application on notice for the Court to set aside thejudgment and rehear the appeal.
(3) No application for extension of the time allowed under Rule 30 (2) shall be granted save in exceptional circumstances and where no fault is attributable either to the respondent or to his legal representative.
(4) On hearing an application under this rule the Court may in its discretion set aside the judgment and order that the appeal be reheard at such time and upon such conditions as to costs or otherwise as it may think fit.
(1) Save as may be otherwise allowed by the presiding Judge the maximum time allowed for oral argument in a civil appeal shall be one hour for the appellant and one hour for the respondent, plus 15 minutes for the appellant in reply.
(2) Where there is more than one appellant or more than one respondent the time limits allowed for each shall be set at the roll call.
(3) Requests for additional time, if any, shall be made at the roll-call or, where possible, as soon as practicable after receipt of the record.
(1) It is not open as of right to any party to an appeal to adduce new evidence in support of his original case but, for the furtherance of justice, the Court may, where it thinks fit, allow or require any new evidence to be adduced either in accordance with Part V of these Rules or mero motu. A party may, by leave of the court, allege any facts essential to the issue that have come to his knowledge after the decision of the Court below and adduce evidence in support of such allegations.
(2) The Court shall have power to draw inferences of fact and to give judgment and make any order which ought to have been made by the court below and to make such further or other order as the Court may deem fit. The powers aforesaid may be exercised by the Court notwithstanding that the appeal may be that part only of the judgment be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from, or complained of, the decision.
(3) The Court shall have power to make such order as to the whole or any part of the costs of appeal and in the court or courts a quo as may be just.
(4) If, upon the hearing of an appeal, it appears to the Court that a new trial ought to be held, it shall be lawful for the Court, if it thinks fit, to order that the judgment shall be set aside and that a new trial shall be held.
(1) If an appellant who is a natural person alleges that he is unable to pay the fees on appeal, or to pay the costs of preparation of the record or to provide security for costs, the Registrar of the court below, or the Registrar of this Court, as the case may be, shall, on application being made in that regard, enquire into the means of the applicant, and for that purpose may seek the views of the respondent, may require the applicant to give evidence on oath, either in person or by affidavit, and may take such other steps as he deems necessary to arrive at a fair determination:
Provided that an applicant who was allowed by the court below to sue or defend as a poor person shall be allowed, without further proof, to prosecute or defend an appeal before this Court as such poor person, unless the Registrar of the court below is satisfied that his financial position has materially changed.
(2) The decision of such Registrar shall be final as to whether the applicant has sufficient means, and if the determination is that the applicant does not have sufficient means to finance his appeal, he shall refer the case to a legal practitioner for consideration.
(3) If the legal practitioner certifies that he had considered the case and that he believes the applicant has a reasonable probability of success, the Registrar shall include in the record of appeal, the legal practitioner's certificate and a statement of the proportion of the fees which the applicant is able to pay. No fees other than those in such statement shall be payable by the applicant. The Registrar shall thereupon assign a legal practitioner to the applicant. Such legal practitioner shall not take any fee from the applicant for anything done in the conduct of the appeal.
(4) If an appellant as aforesaid succeeds in any appeal which results in an order for payment to him of any sum of money from the respondent, whether by way of damages, costs or otherwise, the Court may order that the appeal fees and the costs of the record shall be a first charge on any moneys recovered under such order and, from the balance of such moneys recovered, the legal practitioner for such appellant shall be entitled to such costs as may be allowed on taxation.
(1) The Registrar shall be the Taxing Master.
(2) Where costs are allowed in a civil appeal they shall be taxable according to the rules for the taxation of costs for the time being in force in the High Court but according to the scale in Schedule 1 to these Rules:
Provided that costs allowed in respect of proceedings prior to the institution of an appeal shall be taxable according to the scale of costs for the time being in force in the court below.
(3) Any person aggrieved by any order, decision or ruling of the Taxing Master may apply to a Judge sitting in Chambers to set aside such order, decision or ruling and, on the hearing of such application, the Judge may make such further order as he thinks fit. Any order or decision made by such Judge shall be subject to appeal to the Court as if it were an order or decision of the High Court.
