Masisi wants KBL appeal thrown out
Mpho Mokwape | Monday September 6, 2021 06:00
He also said the largest brewer has failed to establish any prejudice they will suffer if the appeal was not expedited noting that if it was that urgent, they should have continued to engage with the government.
Masisi, in his response to KBL’s appeal application at the Court of Appeal, said it was clear that the matter was not urgent since KBL did not file the proceedings expeditiously and never continued to engage in talks with the State.
In his answering affidavit, Masisi explained that the brewer failed to bring the appeal on time and claiming that they were still in talks with the government. “In choosing to delay the filing of these proceedings on the basis that the parties were still in talks is a risk assumed by the applicant to its detriment. The discussions and talks did not stop the urgency clock,” he said.
Masisi further pointed out that the fact that KBL had the luxury to hold on to the filing of the appeal clearly indicated that the matter was never urgent. He explained that the time lapse between the handing of the appeal and the filing of an application for an expedited appeal clearly indicated that the matter was not urgent.
“I emphasise that the applicants have failed on paper to satisfy requirements for the relief sought. In particular, the applicants had failed to demonstrate that its appeal ought to be heard on an expedited basis. The judgment of the High Court was handed down on August 3, 202 and the applicants filed an appeal 13 days later. This doesn’t indicate any urgency or the need for an expedited appeal,” he said. On the appearance of KBL employees on the appeal, Masisi said they had no right to join the proceedings as KBL had not followed proper court process. He explained that the parties were not set down or neither moved at the High Court so they were not parties therefore they cannot be parties at the Appeals Court. The President said the ruling of the High Court has got nothing to do with them and that they should not be entertained because their leave to intervene was never granted. “The employees of KBL who joined as second and third applicants have no legal right to participate in the proceedings as they were not parties to the proceedings at the court a quo, therefore, they ought to be struck out with costs. The supplementary affidavit by the employees seeking to explain the delay in filing of proceedings needs to be struck out with costs as it was done without leave,” he said.
He pointed out that the brewer had not shown any prejudice or irreparable harm they will suffer and that if that harm exists it could be addressed by claim of damages in a hearing in due course. Masisi further noted that the fact that KBL may calculate its losses, it was an indication that once the constitutional arguments succeed, it may proceed to claim damages and would in fact easily quantify the damages.
He noted that KBL’s application was frivolous that ought to be dismissed with costs.
KBL lost its application a while ago at the High Court on urgency after challenging Masisi’s latest alcohol ban before launching an appeal at the Court of Appeal 13 days later.
At the centre of KBL’s suit against government are the State of Emergency (SOE) regulations, under which the Health Services director is able to ask President Masisi to suspend alcohol sales and other interventions at any time.
KBL’s papers were filed on an urgent basis before Justice Tshepo Motswagole of Gaborone High Court with the brewer indicating that at least 50,000 direct jobs and 200,000 livelihoods in the alcohol value chain were threatened by the ban. Monthe Marumo Attorneys represent Masisi, the Attorney General’s Chambers and the Director of Health while Minchin & Kelly represents KBL. The case will be heard next week Thursday.