High Court slams contemptuous AG
Innocent Selatlhwa | Wednesday October 29, 2025 06:00
Tshekiso was throwing out a case in which the trio had approached the court seeking the rescission of a judgment in favour of 271 Department of Veterinary Services employees who were declared to have been eligible for multi-grading as per a 1993 savingram.
On May 17, 2024, the 271 employees filed a writ of summons against the defendants. The summons was accompanied, inter alia, by particulars of claim, in which the following reliefs were amongst those sought:
An order declaring the plaintiffs (employees) entitled to benefit from multiple grading and titling of B band positions and C4/ 3 as confirmed in Savingram No: DP 20/6/XI dated April 19, 1993.
An order declaring unlawful the defendants' failure to apply and extend to the plaintiffs the benefits conferred through the savingram.
An order directing the defendants to implement multiple grading and titling of B scales positions as confirmed through the savingram, with retroactive effect, within one month from the date of this court order.
An order directing the defendants to place the plaintiffs in the position they would be occupying, had multiple grading and titling of B scale and C4 / C3 as confirmed through the savingram, has been applied properly in their favour.
After being served with the summons, the defendants filed their memorandum of appearance on July 4, 2024. The plaintiffs filed their declaration and accompanying documents on July 25, 2024. The defendants failed to file their plea or some other answer, resulting in the plaintiffs petitioning the court for final judgment. The application for judgment was filed, ex parte, on September 17, 2024. The application for judgment was upheld by the court on November 19, 2024.
On March 3, 2025, the defendants approached the court seeking the rescission of the judgment granted on November 19, 2024. The application was opposed by the plaintiffs.
The application for rescission was scheduled for roll call on June 30, 2025. On that day, the court scheduled the application for the rescission of judgment for hearing on September 18, 2025. On September 12, 2025, the plaintiffs filed their heads of argument, supporting their opposition to the rescission application.
On September 17, 2025, at 12:32pm, counsel for the defendants, Bugalo Hulela, filed a letter marked 'WITHOUT PREJUDICE', informing the court that he was unable to travel/or attend the said hearing due to the Presidential Directive, which limited travel. He communicated further that he and counsel for the plaintiffs had agreed that the matter be postponed to October 2, 2025.
According to Tshekiso, when the application was called as scheduled on September 18, 2025, AG attorney sought the postponement of the matter, whilst employees' attorneys professed a readiness for the matter to be heard. “I declined to postpone the application, and ordered that the defendants should file heads of argument in support of their rescission application by September 25, 2025,” he said.
Tshekiso said in his view, there was no reason at all for the postponement of the hearing of the application.
“It is postponements like the one sought, which clog the court's roll with unending litigation, because it has become easy to postpone the hearing of cases even in the absence of just cause. I refused the unmerited postponement and resolved to remind litigants of their responsibility, to ensure that once cases are lodged, it is their responsibility to ensure that needless delays are curbed,” he said.
Tshekiso said the defendants were under an obligation, if they intended to prosecute their application for rescission of judgment, to file a paginated bundle of pleadings three court days ahead of the date set for hearing.
Tshekiso said when he declined to postpone the hearing of the application for rescission of judgment, applicants informed him that he would stand by the heads of argument prepared and filed for the plaintiffs, whilst state counsel was not prepared for the hearing.
Acting in terms of Order 47 Rule 5 of the Rules, Tshekiso said he granted the defendants leave to file heads of argument in support of their application on or before September 25, 2025.
“Contrary to the order of this court, the defendants filed their heads of argument on September 26, 2025. At the time the defendants' heads of argument were brought to my attention, I was almost done with writing this ruling. I had to amend various portions of the ruling to consider the belatedly filed heads of argument. The belated filing of heads of argument by the defendants, in an application for the rescission of a judgment granted after a failure to plead within the timelines set by the rules, does not reflect well on the seriousness of the defendants. It paints a picture of litigants who have no regard for timelines set by the court and the rules,” he said.
In opposing the application for the rescission of the judgment granted in their favour, the plaintiffs had raised a point in limine to the effect that the defendants have not come to court with clean hands and that, as a result, they should be non-suited. The point in limine was premised on the fact that the judgment sought to be rescinded was granted on the 19th of November 2024, and was to be complied with within 60 days, reckoned from the date of the court order. The 60 days, according to Tshekiso’s computation, lapsed on January 18, 2025.
“It is clear that when it was realised that judgment was granted, the defendants resolved to seek the rescission of the judgment. No effort was made to comply with the judgment, or at the very least, move the court to stay the execution of the judgment pending its rescission. The rule of law requires that court orders be complied with unless set aside,” he said.
Tshekiso said a refusal to comply with an order of the court, despite being aware of it, amounts to contempt of court. “Having defied the very order they seek to be rescinded, should the defendants be non-suited? A legal adage says he who comes to equity must come with clean hands. I do not see how a contemptuous litigant would be allowed to seek the intervention of the court without encouraging the besmirching of the image of the court. Contempt is inimical to the rule of law, and litigants should know that any person who refuses to comply with court orders would be denied relief from court,” he said.
Tshekiso said the defendants, represented by the principal legal advisor to the Government of Botswana, have a greater responsibility to be exemplary in the area of compliance with court orders, and are urgently seeking the stay of execution of those orders which, for one reason or another, will not be complied with. Noncompliance, under the guise that an order is or will be a subject of a rescission application, cannot and has never been acceptable.
“Because the defendants have defied this court by their failure and or refusal to comply with its order of November 19, 2024, they are nonsuited from obtaining the rescission of the very order they ignored and refused to comply with. On this ground alone, I decline the rescission application,” he said.