Ignorance of the law is not an excuse – CoA tells AG
Innocent Selatlhwa | Monday October 13, 2025 06:36
At the core of this ruling was an urgent application for leave to appeal to the CoA, the ruling of Justice Zein Kebonang of the High Court, handed down on 28 April 2025. The application for leave to appeal to the High Court was dismissed on 28 April 2025 by Kebonang.
In February, the High Court handed down its judgment, in terms of which Tawana Joint Venture (consisting of G4 Civils, Landmark and Asphalt) were awarded a tender, namely Tender number POU/MLWA/DTS/NCOJANE Water Supply Works/158/09102023, being a works contract for Detailed Designs and Construction of Ghanzi South and Kgalagadi North Villages Water Supply Project.
The two applicants (Accounting Officer at the Ministry of Water and Human Settlements and Attorney General), dissatisfied with Kebonang's decision, filed an application for leave to appeal on 14 March 2025.
The High Court on 28 April 2025 dismissed the Applicants' application for leave but granted China Civil Engineering Construction Corporation and Zhong Gan Engineering & Construction Corporation leave to appeal its ruling to the Court of Appeal.
According to Kebonang, former Permanent Secretary in the ministry, Dr Kekgonne Baipoledi’s actions of initially giving the tender to the Chinese while they did not qualify was fatal to their case.
The Applicants, dissatisfied with the reasons anchoring the dismissal of their leave application, approached the CoA, seeking leave to appeal the decision.
On 14 May 2025, China Civil and Zhong Gan served the Applicants with their notice and grounds of appeal. The Applicants responded with a notice of opposition and a cross appeal. The two companies filed their notice of opposition to the cross appeal and raised a point of law, to the effect that since the Applicants were denied leave to appeal, they do not enjoy a right to file a cross appeal, without leave.
According to the Applicants, it will be in the interest of justice to grant them leave to appeal, more so that they are cited as Respondents in the cross appeal.
The Applicants submitted that they have reasonable prospects of success on appeal, considering that the High Court awarded the tender to Tawana JV, despite their bid not meeting the qualifying criteria, particularly on issues of front- loading and back- loading.
On the balance of convenience, the Applicants averred that such a balance favours the granting of leave, given that leave has already been granted to China Civil and Zhong Gan
The Applicants contended that this application is urgent as the substantive appeal is about to be heard and therefore they are desirous of placing their contentions before the Court of Appeal. Furthermore, upon receipt of China Civil and Zhong Gan points in law, they sought legal opinion on whether their cross appeal, filed without leave, was competent or not. As a precautionary measure, the Applicants then sought leave from the CoA.
To further prove urgency, the Applicants have averred that the CoA has granted an order for an expedited appeal filed by the two companies. The expedited appeal, is scheduled for hearing on 20 October 2025.
The application for leave to appeal was sternly opposed by all the respondents. They collectively raised three sharp-pointed legal points, namely: the application for leave to appeal is not properly before the Court in that it was brought outside the prescribed timelines set by the Rules; the application is not urgent, and the requirements for leave to appeal have not been satisfied.
Leburu noted that any procedural requirement that applies to appeals equally applies to cross-appeals, unless there is a specific rule to the contrary.
“The noting or filing of a cross-appeal therefore has to comply with the procedural dictates relating to normal appeals. On that basis, if there is a requirement to seek leave to appeal, under normal or regular appeals, it follows that a litigant who is desirous of cross-appealing, where leave is required, is therefore enjoined to do the needful and seek leave accordingly', he said.
Leburu further said the matter emanated from the Public Procurement Tribunal and it was appealed to the High Court, hence the need to seek leave to appeal at the High Court, before an appeal to the Court of Appeal can be brought. “If leave is refused by the High Court, then leave ought to be sought from the Court of Appeal. It is critical to point out that what is serving before me is an application for leave to appeal and it is not an application for leave to appeal out of time,” he said.
Still on the matter, Leburu said a notice of appeal shall be filed within six weeks of the date of the judgment or decision appealed against.
“The decision sought to be assailed and appealed against was rendered on 28 April 2025, when the High Court refused to grant leave to appeal to the Applicants. The present application for leave to appeal to this Court was filed on 25 June 2025. In terms of computation, the present application ought to have been filed on or before 9 June 2025, that is to say, within six weeks of the impugned ruling, ,” he said.
Leburu said the application was brought outside the prescribed timelines and there is no application for condonation of the late filing of the application for leave to appeal. However, he said in terms of Rule 11(1) of the Court of Appeal Rules, the Court may exceptionally, extend the set timelines, or may condone none compliance with the Rules, in the interest of justice.
According to the deponent to the founding affidavit, the delay was caused by the legal uncertainty they entertained on whether they were entitled to file a cross appeal as of right or with leave of the Court. They stated that their initial consideration was that being cited as Respondents in the substantive appeal, they were entitled under Rule 21 of the Rules of this Court to file a cross appeal as of right. However, another school of thought they entertained was that because the High Court had denied them leave to appeal, they did not have an automatic right to file a cross-appeal, hence their present application.
“In my view, the explanation given by the Applicants is unacceptable in that ignorance of the law is not an excuse. The 2nd Applicant is the Attorney General and Chief Legal advisor to the Government. Furthermore, both Applicants are represented by a private law firm,” he said.
On prospects of success, the Applicants had averred that they have reasonable prospects of success on appeal, considering that the High Court awarded the tender to Tawana JV, despite their bid not meeting the qualifying threshold, particularly on issues of front loading and backloading.
In Leburu’s view, the averment lacks clarity and specificity to enable the Court to determine whether there are any prospects of success and thereby justifying condoning the late filing of the application for leave to appeal. “If this application was one relating to an appeal as of right, the bar on prospects of success is not high. Now its an appeal with leave and bar thereof is stringent and on a higher pedestal,” he said.
It was further submitted by the Applicants that since China Civil and Zhong Gan have been granted leave to appeal to the CoA, they should also be granted such leave, in the interest of justice.
“In my view, the fact that one litigant has been granted an order does not, enjoin the Court to grant the other litigant in the same matter the same order. Each litigant's case is singularly assessed on its unique merits or demerits and then determined accordingly,” he said.
In conclusion, the application for leave to appeal was not properly before Court. Consequently, the application for leave to appeal was struck out, and the Applicants shall bear the costs of the application.