High Court refers dispute over review deadline to CoA
Mpho Mokwape | Wednesday October 8, 2025 08:19
Justice Zein Kebonang recently declined to make a final decision, saying that whilst respecting binding precedent, he expressed that such must rest on reasoning. The dispute over the time limit arose in a matter between a company called Neck-Piece (Pty) Ltd and Tsholofelo Bareetsi against the Citizen Entrepreneurial Development Agency (CEDA) and others.
The applicants had argued that the four months prescribed in Order 61 Rule 8 should start running only from the moment an affected party becomes aware of a decision. The respondents, however, maintained that the time begins when the decision is handed down, regardless of knowledge or communication. Justice Kebonang reviewed the conflicting available judgments, some being High Court decisions, and others apex court-like, such as Moraka v Air Botswana and Tshoganetso Ketshabang v Kebonyemodisa, which held that time starts on the date the decision is delivered. Though bound by CoA authority, Justice Kebonang called the issue 'troubling' and observed that Order 61 Rule 8 is silent on whether knowledge is required. 'I cannot decide on this matter because literal reading is insufficient to resolve the question. Because of the uncertainty, the matter should be clarified by a higher court,' he said. He indicated that reciting statutes without explanation gives little guidance, and he found that both Moraka and Ketshabang decisions did not sufficiently explain why knowledge should be excluded. He remarked that: “A decision without more is insufficient to trigger the limitation period.”
He also reasoned that often a statute implicitly presumes that parties will know decisions affecting them or receive communication. The judge, in conclusion, viewed the question as one of public importance and structural clarity, which merits resolution at the appellate level.
Accordingly, he made the following orders:
• The question of whether knowledge or communication is required before the four‑month period begins under Order 61 Rule 8 is formally referred to the Court of Appeal for clarification. • The Registrar must place this matter for hearing in the January 2026 session of the Court of Appeal. • There is no order as to costs in this matter.
Meanwhile, the dispute began in 2024, when Tsholofelo Bareetsi (the second applicant, also acting jointly with Neck-Piece (Pty) Ltd, applied to the Citizen Entrepreneurial Development Agency (CEDA) for a loan to acquire an abattoir in Maun. The application was refused, but importantly, the decision was not promptly communicated to Bareetsi. After learning of the rejection, he filed a review application to challenge the decision, and the respondents objected on jurisdictional and procedural preliminaries, arguing that the review was out of time.
At the time, they invoked Order 61 Rule 8, which states: “Except with the leave of the judge on good cause shown, no application for review shall be brought later than four months after the handing down of the decision or conclusion of the proceedings complained of.”
The applicants contended that because they did not know of the decision earlier, they should not be penalised for the delay. In their court papers, they argued that triggering the time period only upon knowledge would preserve fairness and access to justice.
They also suggested that forcing them to apply for leave when they were unaware of the decision might violate constitutional guarantees of protection of the law. However, they did not specify which constitutional provision was implicated, or how the High Court’s autonomy to regulate procedure might be constitutionally constrained. The respondents countered that the wording of the rule is unambiguous in that the four months begin to run upon the handing down of the decision, irrespective of communication. They relied on several prior cases to support this view.
In conclusion, the respondents reminded the court that as a lower court, it is bound to follow Court of Appeal decisions, but the applicants urged that the fixed formula approach may cause injustice and called for reinterpretation to align fairness with procedural rules.