On the 11th of July 2023, the Court of Appeal presided over an appeal brought by Debswana Diamond Company Limited (“Debswana”) against Infotrac (Pty) Ltd (“Infotrac”). The decision sought to be appealed was in respect of a High Court decision, in which the High Court had granted judgment in favour of Infotrac in the sum of One Hundred and Ten Million Pula (BWP110,000,000.00) against Debswana.
On the 31st July 2023, prior to the judgment being delivered on the substantive appeal, Infotrac filed an application, on urgency, seeking the recusal of the judges who had presided over the appeal citing a number of reasons that, it alleged, led to a ‘reasonable apprehension of bias’.
On the 20th of September 2023, the Court of Appeal delivered its Ruling in respect of the recusal application and, thereafter, delivered judgment on the substantive appeal.
The Application for Recusal
The Court of Appeal has held that the law on the recusal of members of the judiciary in Botswana is now settled. In brief, the court has reiterated the position that actual bias need not be proven, and that a mere apprehension of bias is sufficient. The Court, further, reiterated that the test for apprehended bias is an objective test and that the onus of establishing the apprehended bias rests upon the party alleging it.
In considering whether the application for recusal of the panel of Judges should be granted or not, the Court of Appeal applied the so-called “double reasonableness test” as more fully set out below.
The Court of Appeal cited and relied on the cases of GAOTSALOE v DEBSWANA DIAMOND COMPANY LIMITED [2019] 1 BLR 109, 110, 127 and 133 (CA); MOGALE v MOTOR VEHICLE ACCIDENT FUND {2016] 1 BLR 458 (CA); President of the REPUBLIC OF SOUTH AFRICA v SARFU 1999(4) SA 147 (CC), and held as follows:
“In determining whether the onus of establishing apprehended bias has been discharged, a court starts with a presumption of impartiality, namely that judges will carry out their oath of office. This presumption can be displaced by cogent evidence that passes the ‘double reasonability’ test, or a two-fold objective element: (i) the person considering the alleged bias must be reasonable and (ii) the apprehension of bias itself must be reasonable in the circumstances of the case.”
The Court held that the first requirement on the principles applicable to the recusal of judicial officers is that the alleged perception of reasonable bias must be determined from the objective perspective of a reasonable person, or an informed observer, and not from the subjective perspective of the party asking for recusal. The apprehension of bias must itself also be reasonable.
Infotrac’s initial complaint was that its Attorney had been harshly treated by way of questions posed and comments made during the hearing of the Appeal by one of the members of the Bench. Further complaints were subsequently made by Infotrac. The alleged harsh treatment of Infotrac’s Attorney, it was alleged, gave rise to a reasonable apprehension of bias on the part of the Judge in question.
In dealing with the issue, Judge Froneman stated:
“Any informed observer of the Botswana Court of Appeal would know that vigorous and sometimes robust debate and interaction between the bench and counsel is the very stuff of an appeal hearing, as is the case in many other jurisdictions.”
The Court of Appeal (in considering all relevant facts and applicable principles) came to the conclusion that an informed observer would not have considered the questions posed nor comments made as indicating any potential bias on the part of the Judge(s).
The Court of Appeal also dealt with the other complaints raised by Infotrac’s Managing Director and held that a reasonable person would not have attempted to influence the outcome of a pending appeal, especially by approaching other institutions (as Infotrac’s Managing Director had) other than the Court itself in an effort to thwart the outcome of an appeal.
The application for recusal was accordingly dismissed on the basis that it was without merit and accordingly dismissed, with costs.
Kindly note that on the 15th of September 2023, the Minister for State President extended the compliance period for the Provisions of the Data Protection Act, particularly in relation to the processing of personal data under section 54.
This extension has been officially implemented through the publication of the Data Protection (Amendment) Act (Period of Processing Personal Data) Order, 2023.
Key Update: The compliance deadline for the Data Protection Act has been extended from the 17th of September 2023, to the 17th of September 2024.
The extension for compliance allows all affected stakeholders an additional opportunity to align their processes to the requirements of Data Protection.
If you have any questions or require further details regarding this update, please don’t hesitate to reach out to us. Your compliance and data protection matters to us!
1. In the recent Court of Appeal session, Litigation Partner, Moemedi Tafa, successfully acted for the Botswana Power Corporation (BPC) in opposing an appeal for a claim in the sum of BWP201 460.00.
2. In the said matter, the Appellant, Fish Sekadiete, had alleged that BPC had caused substantial damage to his house through the tightening of the electricity supply cable to his premises.
3. The Appellant had claimed for the reconstruction, afresh, of his house as well as costs associated with the proceedings.
4. The High Court, in agreeing with the opposition raised by BPC, granted absolution from the instance and dismissed the matter with costs without the need for BPC to give any evidence.
5. The Court of Appeal, in dismissing the appeal by Mr Sekadiete, with costs, confirmed the principle of absolution from the instance, that a party should not be called upon to answer a case where the Plaintiff has not adduced sufficient evidence that a reasonable Court could find in their favour. The matter should then be dismissed without the Defendant having to lead any evidence.
6. The appeal was dismissed with costs in favour of BPC.
1. The legislation landscape of Botswana has been changing over the years to create a conducive business environment to assist Botswana in moving to greater heights in economic development, and this ranges from changes in tax laws, data protection laws, changes in laws relating to economic zones, and to laws relating to the sale of land. These are all interesting changes to businessmen exploring business opportunities in various sectors of the economy of Botswana. Alongside these commendable strides, there has been for a while, pressure mounted on Botswana to also consider laws to empower the native citizens like what has been seen as new legislative changes in a few other countries in Southern African Development Community such as South Africa (through the Broad-Based Black Economic Empowerment Amendment Act, 2013) which is still recovering from the legacy of apartheid.
2. In this regard, the Parliament of Botswana found it fitting to promulgate the Economic Inclusion Act (the “Act”), which came into force on 20 April 2022. The primary objectives of this Act is to among other things, promote of the economic empowerment of targeted citizens, ensure the promotion and facilitation of ownership of income-generating activities and assets by targeted citizens, strengthen the ability of a targeted citizen to own, manage and control a private sector enterprise and productive assets. These objectives will be the responsibility of the Economic Empowerment Office (headed by the Coordinator), a body created under the Act, and it is envisaged that it will be monitoring and measuring implementation of the objectives, ensuring ease of monitoring and evaluation of economic empowerment laws, policies, initiatives and programmes, and facilitating enforcement of the economic empowerment laws, policies, initiatives and programmes and continuously reviewing the economic empowerment laws, policies, initiatives and programmes.
3. The term “targeted citizen” which refers to the beneficiary for the enforcement of the Act, is defined under the Act as a citizen whose access to economic resources has been constrained by various factors as may be prescribed by the Minister of Investment, Trade and Industry (the “Minister”) from time to time. As at the date of this article, it may well be argued that the Act cannot technically be enforced against anyone as there are currently no prescribed criteria for identifying a targeted citizen and this would presumably be set out under the Regulations to the Act which are yet to be promulgated to also give effect to a number of provisions of the Act.
4. This notwithstanding, it is imperative to understand the expectations and extent of application of the Act to the private sector players. The Act imposes obligations, which are couched in wide and general terms to all sectors of the economy, the State, public bodies, private entities and agencies, to implement the empowerment of targeted citizens.
5. In terms of the Act, the private sector is obliged to put in place appropriate strategies to empower “targeted citizens” through:
5.1. Mentoring and sharing knowledge on business development and market penetration with “targeted citizens” or targeted citizen owned private sector enterprise;
5.2. Promoting economic empowerment of targeted citizens and to incite entrepreneurial culture;
5.3. Building capacity of targeted citizens and targeted citizens owned enterprises;
5.4. Procuring goods and services from targeted citizens and all targeted citizen owned enterprises within the private sector;
5.5. Developing sector codes of good practice for economic empowerment;
5.6. Developing supplier development programmes with a targeted citizen or a targeted citizen enterprise to foster business relationships;
5.7. Preparing transformation charters and reports of compliance;
5.8. Training employees to effect inclusive ownership of businesses;
5.9. Enabling economic empowerment of private sector businesses owned and managed by targeted citizens;
6. In terms of the Act, the private sector players are required to apply the economic empowerment standards and strategies referred to above, when they are prescribed, and this is also yet to be done as there are no Regulations to the Act.
7. The Act empowers the Coordinator to measure compliance by public bodies, and the Compliance is measured through reporting and returns and imposition of administrative fines for non-compliance.
8. The Act also makes it an offence for private sector where it inter alia, engages in fronting with regard to economic empowerment laws or fails to accord targeted citizens the benefits accorded by the provisions of the Act and prescribes fines of up to BWP 1,000,000.00 and imprisonment of up to 10 years.
9. As a general concluding note, we are of the view that given how the provisions of the Act have been widely and generally couched, it is uncertain as to how it may impact entities in the private sector.
10. In fact, there are no specific provisions in the Act relating to obligations of the private sector, save section 25 of the Act which imposes the general obligations set out above.
11. Therefore, at this stage, it is not possible to determine how the private sector players should structure their businesses or implement the strategies to empower “targeted citizens” because of the general nature of the obligations set out in the Act, and hopefully this will be rectified when the Regulations are promulgated by the Minister in the future.
12. For more information on the above, please contact Simon at simon@armstrongs.bw or call +267 395 3481.
Witnesses are an integral part of both the criminal and civil law system. The question however is always what the court looks at before determining the weight to place on what witnesses present to the court.
A party can compel a competent witness to attend court to give evidence, however, when giving evidence the weight of such evidence is reliant of the credibility of the witness on the stand.
The question of the credibility of a witness is within the peculiar preserve of a trial court. Furthermore, the question of impressiveness or convincingness are products of credibility and veracity; and a court becomes convinced or unconvinced or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses.
The weight of the evidence given in court is however tied to the credibility of any particular witness and such credibility is gauged by varying factors.
Bias
Signs that the witness is biased in relation to the testimony given can be deduced in cross-examination, if denied, allegations of bias can be independently proved.
The weight evidence given by an individual who carries some bias or is in some fashion conflicted is thereby a candidate for rebuke by the court either in part or in its entirety as there is a potential clear motive to mislead the court on the facts surrounding any particular dispute.
Hostile witnesses
A witness can be considered hostile upon the formation of the opinion by the court that he displays a hostile attitude against the party examining him and does not give evidence fairly and with the clear intention of assisting the court with a truthful testimony.
Hostility can be deduced from a refusal to answer to a particular line of questioning or from an inconsistent series of answers to questions posed. The conduct of the witness while in the witness box may also guide the court in making a determination of hostility.
In Meyer’s Trustee v Malan , it was simply put that:
“the court must come to a decision as to whether the witness is adverse i.e hostile from his demeanour in the box, his position towards or relationship to the party calling him and from the general circumstances of the case.”
It must be noted however that mere inconsistencies in testimony are insufficient to warrant a declaration of hostility.
Inconsistent Statements
A witness who is seen to be hostile by the court has their credibility inevitably impaired.
The variation of written testimony or evidence given on the stand leads to contradictions making the evidence suspect.
Admittedly contradictory statements cannot be placed as proof of fact on which the court can act.
Once it is established that a witness has deviated therefor from a previous statement either during their testimony or with a prior written statement on the same subject matter his credibility must be tested to ascertain the cause of such deviation and the implications on the evidence presented.
Aguda J (as he then was) stated in PHETO v. THE STATE 2000 (1) BLR 105 (CA) that:
“There can be very few cases in which testimonies differing with each other on points of detail are not found. Where this happens, it does not necessarily reflect on the reliability of the witnesses in question. Witnesses who honestly endeavour to tell the truth as they recall it often differ on points of detail. It is only where such differences relate to vital points in proving a case that they may come to be of importance.”
It is thereby the position of the court that minuscule deviations may not carry much impact on the overall credibility and reliability of the testimony of a witness however once such deviations become glaring and obvious in nature the court ought to deal with the testimony cautiously.
It appears to be the position of the law that the evidence of a witness is largely accepted and its value appreciated so long as the witness is not seen to fall within characterisations that diminish their credibility, some of which are discussed above.
A determination of credibility guides the court on the manner to proceed in its evaluation of the overall evidence before it in that if credibility is absent the evidence may be disregarded and in the absence of further evidence,
From a reading on the literature and case law on the issues surrounding credibility of witnesses, it is clear that the courts have been reluctant to set tests for conclusively dealing with the manner particularly as the test is highly subjective. Furthermore, it is apparent that most of our guidance is derived from criminal law decisions and our courts are yet to set a clear tone on the subject matter in civil matter.
NB: Case Law on credibility is very scarce in our jurisdiction, much development is needed in our jurisprudence.
