TAWANA JV attorneys lament unfair treatment
Innocent Selatlhwa | Monday July 14, 2025 09:45
Given what they term the seriousness and permanence of the reputational harm arising from the Court's unfair comments made in this matter, TAWANA JV's legal team has sought audience with Garekwe , President of the Court of Appeal, Justice. Tebogo Tau and Chief Justice Gaopalelwe Ketlogetswe to discuss and address the criticism levelled against TAWANA JV and its legal team in these circumstances.
They are particularly unhappy about what they term adverse findings and comments the judge made when delivering a ruling in a case in which two Chinese construction companies had whisked them before her court.
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.
The Joint Venture is made up of G4 Civil (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd.
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 tender for works on the detailed design and construction of the Ghanzi South & Kgalagadi North villages water supply project.
The attorneys who represented TAWANA JV were Advocate Mpho Garebatho who presented the team’s case in court alongside attorneys Unoda Mack, Tebogo Tladi and Magadi Mphotlhwe.
In her ruling, Garekwe expressed concern at repeating instances where attorneys provide citations that are incorrect and misleading. 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.
In their letter, the attorneys state that the adverse findings or comments made against the legal team of TAWANA JV appear at paragraphs 19 and 20 of the ruling of 24 June 2025, in terms of which Garekwe stated that the citation of the case of Attorney General v BLLAHWU 2104 2 BLLR 68 (CA) (sic), referred to in TAWANA JV's heads of argument, ... is incorrect and misleading'
“The criticism arises from a typographical error, which would have been corrected had the matter been raised by Garekwe during the hearing in Court or even subsequent to the hearing and prior to the preparation of the ruling. The citation in question-'Attorney General v BLLAWU [2104] 2 BLLR 68, CA' was obviously a typographical error for the well-known and readily accessible case of Attorney General v Botswana Landboards and Local Authorities and Workers' Union and others (2014) 2 BLR 68 (CA). The volume and page number ('2 BLR 68') correspond precisely with the correct report,” they wrote.
They indicate in the letter that they take full responsibility for the said typographical error and tendered their apologies for it to the extent that the error inconvenienced the court. However, they find the comments made by Garekwe most shocking and unfair as they met them for the first time in her ruling. “Such damaging comments were unwarranted and unfair,” they stated.
The attorneys are of the view that court ought to have sought clarity from counsel.
“Garekwe heard the application on 17 June 2025, seven days after having received TAWANA JV's heads of argument containing the erroneous citation. However, Her Ladyship did not raise the matter during the hearing. Had her Ladyship done so, we would have immediately corrected the error to reflect the correct citation or provided her Ladyship with a copy of the judgment shortly after the hearing,” they wrote.
Further, they state that the ruling was then delivered on June 24, 2025 and that prior to the date of delivery of the ruling, Garekwe never sought clarity from the legal team for TAWANA JV in respect of the clearly erroneous citation.
“In the premises, her Ladyship did not judicially investigate the citation problem as expected. Therefore, she had no basis to characterise the wrong citation as '...improper and unauthorised conduct' warranting serious censure,” they state.
They further contend that the error in TAWANA JV's citation was plainly a typographical one, stating that the cited case is an existing and reported decision of the Court of Appeal;
“It is well known in our jurisdiction that 'BLLAHWU' is an abbreviation for Botswana Landboards, Local Authorities and Health Workers' Union; The year 2104 is clearly an error of transposition, the correct year being 2014; The volume and page number ('2 BLR 68') match only one possible reported case for the year 2014, namely Attorney-General v Botswana Landboards, Local Authorities and Health Workers' Union and others; The Botswana Law Reports are the only relevant reporting series, and there is no 'BLLR' for Botswana, the reports being abbreviated as 'SLR' they state.
They are of the view that the context of the argument and the principle cited are directly traceable to the correct authority and that any reasonable attempt to verify the citation using the volume, page, and year would have led immediately to the correct report.
Meanwhile, the attorneys also raised concerns regarding the fairness of the Court's approach, more particularly the adverse findings or statements made against the legal team for TAWANA JV by Garekwe at Paragraphs 19 and 20 of the Ruling, without affording us an opportunity to make representations on same.
“Her Ladyship's approach to a clear typographical error in the citation of a Judgment by TAWANA JV's legal team demonstrates unfairness against TAWANA JV and its representatives. As stated above, the citation in question was an apparent typographical error for the well-known and readily accessible case. This is so because the volume and page number ('2 SLR 68') correspond precisely with the correct report, there is no 'BLLR' reporting series in Botswana for that year or with that page number and the year 2104 is clearly an error of transposition,” they state.
Despite this, they lament that Garekwe elected to make adverse findings of impropriety against TAWANA JV's legal team at Paragraph 20 of the ruling, to the effect that the citation was 'incorrect and misleading' and calling for robust action and even a Practice Direction to address such 'improper and unauthorised conduct' without affording them a chance to make representations on the matter.
“With respect, this was an unfair and unwarranted finding of fault against TAWANA JV's legal team where none existed or where such could have been easily addressed. It was unfair for the court to make adverse findings of impropriety against TJV's legal team without ever calling upon them to address the said error. The rule of natural justice requires that no party should be condemned unheard, especially where findings impugning professional integrity are made,” they stated.
They lament that as the Court of Appeal is the final court of record, and as the judgment may be reported and cited in future, the damage to the professional reputation of counsel is, for all practical purposes, permanent.“The stigma of judicial censure by the highest court cannot be erased, and the professional standing the TAWANA JV's legal team, has been irreparably harmed,” they wrote.
As officers of the court, the attorneys stated that they find it objectionable for professional integrity to be impugned in a final fashion, on a matter of this nature which was raised mero motu by the Court, in respect of which they had not been called upon to address the Court.
“Circumstances such as these demonstrate an unhealthy erosion of collegiality between the bench and the bar. This is most concerning when this level of injustice is experienced from the highest court in Botswana,” they wrote.