The State had sought leave to appeal the ruling or alternatively stay of execution in order to approach the Court of Appeal (CoA) for a redress following the ruling by Justice Michael Leburu in early September. Justice Leburu had ruled that the lawsuit led by former commander of the Botswana Defence Force (BDF), Lieutenant General Gaolathe Galebotswe, several brigadiers, colonels and other retired senior officers was a class action which did not sit well with state. In its contention, the State filed two applications before Justice Leburu which were subsequently joined together during hearing where they sought in the application a stay of the class action ruling pending the hearing and determination of application for leave to appeal and if leave to appeal was refused, that a stay be effected pending the hearing and determination of the application for leave to appeal at the Court of Appeal. However, Justice Leburu he did not agree with State but agreed with the retired soldiers that ‘class action’ ruling was interim and as such not appealable. When dismissing state’s application on Wednesday, Justice Leburu said the application for leave was dismissed with costs as it was determined that the interim order was not appealable therefore rendering consideration for stay of execution academic. “Having determined that the interim order is not appealable, consideration of application for stay of execution, which meant the stoppage of trial has been rendered academic, therefore leave to appeal is dismissed,” he said.
The judge explained that the impugned order was purely interim and was not definitive of the parties’ rights in the main trial and that it was issued at an intermediate stage and as a procedural order that gave directions on how the trial should proceed. He said the argument by the Sate saying that by ordering a class action they will be denied the right to cross examine each and every plaintiff was a bit out as the answer to that was simply that it was the very nature and essence of a class action that not every claimant should give oral evidence but just a few of them. “Such is a direct and natural consequence of the proceedings by a way of a class action. On the right to bring action to court, the issue does not arise because in any event, the effect of a class action is to truncate a trial and permit only a few similarly circumstanced plaintiffs to take the stand and not all the claimants in a case, based on the commonality of both legal and factual matrix of a case,” he said. This was after the State submitted that by ordering a class action, the issue of the right to bring a lawsuit becomes topical in that it goes against the allowed principle and that the onus of proof was a matter of substantive and not procedural therefore the ruling went against the common law requirement. Justice Leburu said the soldiers have amply demonstrated their direct and substantial interest in the matter and that the issue of right does not arise and for that the order was not final nor was it dispositive of the rights of the parties or a portion or segment of the disputants’ rights in the main application.
