Gaborone High Court judge, Michael Mothobi heard an application by attorney Jost Isaac this week, seeking leave to appeal against his dismissed joinder application by the same court.
Isaac, a member of the Zion Christian Church (ZCC) had wanted to be cited as a respondent in a case in which the church is embroiled in a constitutional battle against some members of the Tlokweng ZCC branch. He had applied to be party to the constitutional case brought to court by Tshiamo Tladi and 10 others against their church.
The members are suing the church over what they call both violation of the church constitution and victimisation of members.
But the court dismissed his interlocutory joinder application in October 2017 on the basis that he was already admitted as a friend of the court (amicus curiae) in the main application. The judge ruled that if Isaac wished to be a substantive party to the proceedings, he should forego his status of amicus curiae first.
This forced him to seek leave to appeal Mothobi’s decision at the Court of Appeal. His application was not opposed. However, when arguing on behalf of his client, attorney Mpho Garebatho said that the Judge erred to dismiss the joinder application on the basis that the applicant was already admitted as a friend of the court because the applicant was also seeking his removal.
“A separate motion seeking his removal followed by an application for joinder would have resulted in a replication of processes,” Garebatho argued.
He argued that the court gave no consideration to the probative value of material and submissions made by a substantive party as opposed to a party who appears an amicus as the latter is confined to issues as raised by litigants while a substantive party may raise further evidence in support of a different conclusion.
Further, he argued that the court referred to the applicant as a ‘busy body’
On the prospect of success, he stated that the Court of Appeal could form a different view given that the issue of joinder has a fundamental bearing on the main proceedings.
Meanwhile, the 11 applicants in the main application also filed an application for leave to appeal in relation to costs awarded by the Judge in his ruling on the joinder application.
Mothobi had ordered Isaac to pay the whole of the other parties’ costs so far incurred by the institution of interlocutory joinder application on attorney and client scale.
The court ordered the costs shall include the those of the two counsel and the instructing counsel for the Zion Christian Church and his Grace the Right Reverend Dr. Barnabas Edward Lekganyane.
However, in relation to the 11, the Judge ordered that they were entitled to costs at client ordinary scale, adding that this was because their attorney Uyapo Ndadi had not orally addressed the court on any substantive aspect of the litigation.
Attorney Ramatoulie Isatou Jallow submitted that his clients too are entitled to costs at attorney client scale for two attorneys, this being the scale afforded to all who opposed the joinder application.
She submitted that the Court erred in holding that Ndadi had not made oral submissions.
“He indeed addressed the Honourable Court on substantive issues during argument for the application for joinder as well as during the argument for the amicus curiae application. The emphasis with the scale of costs to be awarded should be upon his conduct not that of Mr. Ndadi,” Jallow argued.
Judgement on the two applications is reserved for a date yet to be announced.