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.”
