Garekwe wants stiffer penalties for improper citations by attorneys
Innocent Selatlhwa | Monday June 30, 2025 09:44
Garekwe is of the view that stiffer penalties should be imposed on such attorneys as this impedes the ability of courts to verify legal principles.
This she said when addressing attorneys representing G4 Civil (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd (jointly constituted as TAWANA Joint Venture) in a case in which China Civil Engineering Construction Corporation and Zhong Gan Engineering and Construction Corporation (Botswana) (Pty) Ltd is challenging the award of a tender to them by High Court judge Justice Zein Kebonang. Garekwe was delivering a ruling on the application in which the Chinese contractors sought stay of execution of Kebonang's order and an expedited appeal. The case is in relation to to tender for works on the detailed design and construction of the Ghanzi South & Kgalagadi North Villages Water Supply Project under Tender No: POU/ MLWA/ DTS/ NCOJANEWATERSUPPLYWORKS/ 0158/0910202
The attorneys who represented TAWANA JV were Advocate Mpho Garebatho who presented the team’s case in court alongside attorneys Unoda Mack and Tebogo Tladi.
Garekwe also said she observed that TAWANA JV had devoted minimal attention to the matter of stay of execution of the case. She said submissions presented in their heads of argument fall markedly short of a thorough examination of the requirements for stay, and do not adequately engage with the question of whether those requirements have in fact been satisfied.
She pointed out that at paragraphs 77 and 78 of the TAWANA JV heads, they submit that-
''The principles which govern an application for a stay of execution are trite. The court has a discretion to grant a stay where special circumstances justify this {Attorney General v BLLAWU [2104] 2 BLLR 6 CA).”
“There are no special circumstances in this case. It is an ordinary commercial case in which a disappointed bidder wishes to overturn the award of the bid to its competitor. And as an applicant for stay needs to show that it has prospects of success in the appeal in the sense that it has a good and arguable case on appeal and that the balance of convenience favours the granting of a stay, the appellants are not deserving of a stay for the same reasons as set out in the preceding section dealing with expedited appeals.”
Garekwe said even assuming the citation was correct and espoused a correct principle (which is not the case) paragraph 78 is not aligned at all to the alleged requirement mentioned at paragraph 77. She said it invariably speaks to one of the well-known and settled requirements-prospects of success. “On this score, TAWANA JV simply refers the Court to the arguments on prospects that it made under the expedition relief,” she said.
Garekwe found the assertion by TAWANA JV-that 'special circumstances' are a prerequisite is misplaced and unsupported by the consistent jurisprudence of the Court.
“Furthermore, the citation relied upon by the TAWANA JV is puzzling and its origin unclear, particularly in light of its 'CA' reference, which does not correspond with this Court's reporting conventions or any known authority within this jurisdiction. If the citation was intended to reflect a decision of this Court, it is both incorrect and misleading. It is worth noting that this is not the first occasion on which such questionable citations have been presented before this Court, and their provenance remains uncertain,” she said.
Garekwe said counsel appearing before the CoA, as officers of the court, ought to be well aware of their obligations and refrain from referencing authorities that are unrecognisable or unverifiable by the presiding judicial officers. Such practices, she said impede the Court's ability to verify legal principles relied upon in argument and must cease with immediate effect.
“The issuance of a Practice Direction by the Chief Justice may be warranted to ensure stricter adherence, enabling the Court to take robust action against those who persist in this improper and unauthorised conduct,” she said.