COURT OF APPEAL: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
(13th December, 2013)
ARRANGEMENT OF RULES
3. Sittings and selection of judges
4. Court attire
7. Office and powers of the Registrar
8. Court fees and legal costs
11. Extension of time and departure from the Rules
12. Powers of President of the Court
14. Right of audience
15. Amicus curiae submissions
17. Appeals as of right
18. Notice of appeal
19. Time for filing notice of appeal
20. Appeals by leave
21. Notice in response
22. Registrar's summons
23. Record of appeal
24. Security for costs
25. Amendment, settlement or abandonment
26. Notice of non-appearance
27. Heads of argument
28. Court annexed mediation
29. Non-appearance of appellant
30. Non-appearance of respondent
31. Oral argument
32. Powers of Court
33. Poor appellants
34. Taxation of costs
36. Commencement of appeal
37. Notices to be signed
38. Form of notice
39. Appeals by leave
40. Record of appeal
41. Heads of argument
43. Abandonment of appeal
44. Sentence of death
45. Notification of result of appeal
47. Pro deo counsel
Taking of Additional Evidence
49. Taking of additional evidence
50. Witness summons
51. Expenses of witnesses
52. Presence of parties
53. Revocation and savings
S.I. 7, 1983,
S.I. 59, 2004,
S.I. 122, 2013.
Preliminary (rules 1-2)
These Rules may be cited as the Court of Appeal Rules.
In these Rules, unless the context otherwise requires-
"Act" means the Court of Appeal Act;
"appeal" includes an application for leave to appeal;
"appellant" means a party appealing from a judgment or applying for leave in that behalf and includes the legal practitioner representing him;
"Court" means the Court of Appeal;
"day" means a day of the week, but excludes Saturdays, Sundays and public holidays;
"Judge" means a Justice of the Court appointed in terms of section 100 of the Constitution;
"month" means a calendar month, or where the commencement date is a day within a month, a period commencing on that date and ending on the day of the following month immediately preceding that date;
"President" means the President of the Court and in his absence the senior resident Judge;
"record" means the aggregate of papers relating to an appeal (including the pleadings, proceedings, evidence, documentary exhibits, rulings and judgments) required or agreed to be laid before the Court on the hearing of the appeal;
"Registrar" means the Registrar of the Court, and includes any Deputy or Assistant Registrar of the Court;
(a) in a civil appeal means any party (other than the appellant) cited or joined as a party to the appeal and includes the legal practitioner representing him; and
(b) n a criminal appeal, means the person who undertakes the defence of the judgment appealed against; and "week" means any seven successive calendar days, including Saturdays, Sundays and public holidays.
General (rules 3-15)
(1) The date, time and venue of the sittings of the Court and the selection of the Judges of the Court required to attend at such sittings shall be determined by the President alone.
(2) For the hearing of substantive appeals there shall be two full sessions of the Court, commencing in January and July of each year, or as determined by the President which shall be attended by all the Judges then available, and two short sessions of the Court, commencing in April and October of each year, or as determined by the President which shall be attended by all resident Judges then available, and such non-resident Judges, if any, as the President may nominate.
(3) The Registrar shall by no later than 30th November in each year cause to be published in the Government Gazette the dates of each session for the following year.
(4) The Registrar shall in addition no later than three weeks before the start of each session cause to be published in the Government Gazette the list of cases to be heard in that session, and shall thereafter cause to be delivered to all parties a Notice of Hearing for Roll-call and the provisional roll showing dates of hearing of each appeal.
(5) Applications for leave, for condonation, for dismissal, for re-instatement, or for other permissible relief shall normally be listed for hearing between sessions on dates to be determined by the President.
(6) Urgent appeals may be enrolled for hearing between sessions with the leave of the Court for good cause shown.
(7) Save in exceptional circumstances applications for a stay of the execution of a judgment or decision pending appeal shall be made in the first instance to the court below, and may be made to this Court only following refusal by the court below.
(8) The President may, after consulting the Chief Justice, empanel one or more Judges of the High Court to sit in a long or a short session or in any part thereof, or in any urgent appeal, if he considers it appropriate to do so.
(9) Each session of the Court shall commence with a general roll-call to be attended by parties or their counsel at which hearing dates will be confirmed by the Court for each appeal to be heard during that session.
Counsel appearing before the Court shall be soberly and neatly dressed, in dark suit, dark blazer and trousers or skirt, with white buttoned shirt or blouse, white bib and black gown.
(1) Postponements with the consent of all parties will be entertained upon application from the bar at roll-call, with notification to be made to the Registrar as early as possible, before the roll-call date, to enable other appeals to be listed.
(2) Opposed applications for postponement shall be heard on the allocated date for the appeal, with all parties to be prepared to argue the appeal in person or by counsel on the filed heads of argument should postponement be refused.
(3) The unavailability of counsel, for reasons other than sudden emergency, shall not in the normal course be a ground for the postponement of an appeal save by consent, it being the responsibility of litigants to procure the services of counsel who are available to argue the appeal.
(4) Notwithstanding (3) above the Registrar will make reasonable efforts to accommodate senior counsel as to hearing dates in complex matters provided that notification of dates convenient to all counsel is made to the Registrar not less than one week before the roll-call.
(1) The judgment of the Court shall be pronounced by the President or by such other
(2) Judgments shall be delivered either at the hearing, or on the final day of the session, or, exceptionally, may be reserved, but reserved judgments shall be delivered by no later than the roll-call date of the next session.
(3) In the absence of the compiling Judge, his judgment may be delivered by another Judge nominated by the President.
(4) Any Judge empanelled to hear an appeal may record his own opinion or comments either concurring or dissenting.
(5) A judgment or dissenting opinion shall be signed by the compiler and each member of the presiding panel who agrees therewith. Where a member of the panel is absent when the judgment or opinion is completed, he may signify his agreement or dissent after reviewing the draft by transmitting the signature page by electronic mail or by facsimile; or he may authorise another member of the panel to sign on his behalf.
(1) The Registrar's office shall be open for service of documents and other matters between 8.00 a.m. and 4.00 p.m. on all days other than Saturdays, Sundays and public holidays.
(2) In urgent or exceptional circumstances the Registrar may in his discretion or at the direction of a Judge accept documents for filing outside of the hours and days referred to in rule 7(1).
(3) All documents filed at the Registrar's office shall be date stamped and endorsed with the time of receipt and the name of the receiving officer.
(4) Save where the Rules otherwise dictate, the Registrar may refuse to accept any document tendered for filing which in his opinion does not comply with the Rules, but shall retain on the file a copy of such document endorsed by him with the fact of and his reason for nonacceptance:
Provided that if corrected and compliant documents are submitted within one week thereafter, such submission shall not be deemed by virtue only of the initial rejection to be out of time.
(5) The Court shall not be bound to admit or enforce non-compliant documents by reason only of their acceptance for filing by the Registrar.
(6) Documents filed for court purposes are public documents and may be inspected by any person in the presence of the Registrar, who may permit copies to be made in his presence and upon payment of the prescribed fees.
(7) No court record shall be removed from the court premises by any party save with the authority of the Registrar upon proper arrangements being made for its security.
(8) Documents filed as part of the court record shall not thereafter be destroyed or withdrawn from the official court file.
(9) Documents presented for filing shall be signed and dated by the presenting party or the legal practitioner representing him, save that a photocopy, a facsimile copy, or a printed electronic copy may be provisionally accepted, subject to replacement by an original within one week thereafter.
(1) The fees set out in Schedule 1 shall be payable in respect of the matters to which they relate.
(2) Neither the Attorney General nor the Director of Public Prosecutions, nor their representatives shall be required to pay the fees set out in Schedule 1.
(3) No fees shall be chargeable in respect of criminal appeals and criminal applications.
(4) The fees and allowances payable to legal practitioners in connection with appeals before the Court shall be as set out in Schedule 2:
Provided that the Taxing Master shall on every taxation allow such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but, except as against the party who incurred them, no costs shall be allowed which appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake, or by payment of a special fee to a legal practitioner or by other unusual expenses.
(5) Where, in the opinion of the Court, more than one legal practitioner has been necessarily engaged in the performance of any of the work covered by the tariff, then in such a case the Court shall allow full fees as set out in the tariff in respect of one legal practitioner, two-thirds of such fees for the second legal practitioner, and half of such fees for the third and any other legal practitioner:
Provided that each legal practitioner who has been necessarily engaged in the case shall be allowed his full travelling and subsistence allowances as set out in the tariff.
(1) The Registrar shall keep, both electronically and in a permanent bound volume-
(a) a Criminal Appeals Register; and
(b) a Civil Appeals Register.
(2) The following particulars shall be entered-
(a) in the Civil Appeals Register-
(i) the number of the appeal and the names of the parties,
(ii) the date and nature of the decision appealed against, including the name of the Judge a quo,
(iii) the date of the filing of the notice of appeal or application for leave to appeal,
(iv) the date of settlement of record and security for costs,
(v) the amount and deadline for payment of security for costs and costs of a record of appeal,
(vi) the date of receipt of security and costs,
(vii) the date of receipt of the duly assembled record for the appeal,
(viii) the date of hearing of the appeal or application for leave to appeal with a note of any postponement, and
(x) the date of a judgment, the names of the Judges of Appeal and the result of the appeal or application for leave to appeal; and
(b) in the Criminal Appeals Register-
(i) the number of the appeal and the names of the parties,
(ii) the date and nature of the decision appealed against, including the name of the Judge a quo,
(iii) the date of filing of the notice of appeal or application for leave to appeal,
(iv) the date of receipt of the transcribed record of proceedings,
(v) the date of hearing of the appeal or application for leave to appeal with a note of any postponement,
(vi) the date of judgment, the names of the Judges of Appeal, and the result of the appeal or the application,
(vii) where leave is given, the date of the hearing of the substantive appeal, with a note of any postponement, and the particulars of the Judges of Appeal and the outcome, as in subparagraph (vi), and
(viii) in the case of confirmation of the imposition of a death penalty, the date of return of the record of appeal to the Judge a quo for his report under the Constitution.
(3) The Registrar may delegate the keeping of the registers but shall, no later than one week after the close of each session audit and update the registers, and provide the President with aged lists of outstanding civil and criminal appeals, categorised as awaiting settlement of security for costs, awaiting transcription of the record, and awaiting hearing.
The forms set out in Schedules 3,4 and 5 shall, with necessary adjustments according to the circumstances, be used in all cases where such forms are applicable.
(1) The Court may exceptionally, either mero motu or on application, extend the time prescribed for the doing of anything to which these Rules apply, or may direct or condone a departure from these Rules in the interests of justice.
(2) Any application for the urgent hearing of an appeal, for leave to appeal, for extension of time, for condonation, for directions or for any other purpose permitted by these Rules, shall be made on notice to the other party or parties and shall be supported by an affidavit setting forth good and substantial reasons for the application and, where the application is for leave to appeal, for leave to file an appeal out of time or for an expedited appeal, the affidavit shall be accompanied by the proposed notice and grounds of appeal, which shall prima facie show reasonable prospects for success should leave be granted.
(3) Two copies of any application made in terms of rule 11 (2) shall be filed with the Registrar.
(4) The respondent to any such application may within two weeks of service (or such shorter time as may be indicated in urgent applications) file and serve a notice of opposition accompanied by an affidavit setting out his grounds for such opposition.
(5) Any application under this rule may be heard by a single Judge of the Court designated by the President.
(6) The President or such Judge may grant or refuse such application, or may refer it to the Court for determination, or may make such order or give such directions, including orders for costs, as he deems appropriate.
(7) Where leave is given for the urgent hearing of an appeal directions shall be given on expedited preparation of the record or necessary parts thereof, on the filing of heads of argument, and on the allocation of a date for the hearing of the appeal.
(1) The President may mero motu, on request, or on application, issue practice directives from time to time, or give such directions on matters of practice, procedure, or relating to the disposal of any application or appeal or interlocutory matter as the President may consider just and expedient.
(2) The President may mero motu, on request, or on application, correct patent errors apparent on the face of any judgment or order of the Court.
(3) Any power or authority vesting in the President in terms of these Rules may be exercised by a Judge or Judges designated by the President for that purpose.
(1) Any reference in these Rules to an address for service means an address within Botswana where any notice, pleading, order, summons, warrant, proceeding and written communication, if not required to be served personally, may be left, or to which these may be sent, and shall, where this is available, include an electronic mail address and a facsimile number.
(2) Where, under these Rules, any person has given an address for service, any signed and dated notice, pleading, order, summons, warrant, proceeding or other written communication which is not required to be served personally, shall be sufficiently served upon that person if it is left at that address or sent by registered post to that address (in which case it shall be deemed to have been received three days after dispatch), or if it is sent to that address by electronic mail or by facsimile transmission.
(3) Where, under these Rules, any notice, pleading, order, summons, warrant, proceeding or other application to the Court, or to the court below, is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such an address is endorsed on it.
(4) Any person desiring to change his address for service shall notify in writing the Registrar and all other parties to the appeal.
(5) Where any person has given the address of a legal practitioner as his address for service and the legal practitioner is not, or has ceased to be, instructed by him for the purpose of the proceedings concerned, it shall be the duty of the legal practitioner to inform the Registrar and all other parties by written notice as soon as may be that he is not authorised to accept service on behalf of the client, and if he omits so to do he may be ordered to pay any costs occasioned thereby.
(6) Upon his withdrawal, a legal practitioner shall provide the Registrar and all parties to the appeal with a new and full address for service in respect of his client, and until he has done so service on the existing address for service shall be proper service under these Rules.
(7) No legal practitioner shall withdraw his representation in any appeal after publication of that appeal for hearing in terms of rule 3(4) unless he is replaced by a legal practitioner (or self-actor client) who is prepared to argue the appeal during the notified session.
(8) Where, under these Rules, any notice, pleading, order, summons, warrant, proceeding or other written communication is required to be served personally, it shall be sufficiently served if it is served in the manner prescribed for the personal service under rules of the High Court.
(1) Natural persons may appear and be heard in their appeals on their own behalf or by legal practitioners duly admitted to practice before the court, while companies and other artificial persons having capacity to litigate may appear only through duly admitted legal practitioners.
(2) A legal practitioner engaged to prosecute or defend an appeal shall file a power of attorney authorising his appearance together with his notice of appeal, notice of opposition, or notice of cross-appeal as the case may be, or thereafter if he is engaged after these steps have been taken.
(3) Where the appellant or respondent is not a natural person, the power of attorney shall be accompanied by a resolution authorising the appeal or defence, and the appointment of the legal practitioner.
(4) Notwithstanding (2) and (3), the Attorney-General and the Director of Public Prosecutions and members of their litigation and prosecutions divisions, shall not be required to file resolutions or powers of attorney in their representation of the Government, or public officers cited in their official capacity; counsel appointed to represent appellants in criminal appeals on a pro deo basis shall not be required to file powers of attorney.
(5) (a) Save in exceptional circumstances, no legal practitioner representing an appellant or a respondent in an appeal in any session shall withdraw his services after the publication of the roll for that session in the Gazette; and
(b) any withdrawal thereafter shall be permissible only with the leave of the Court, which may be granted by a single Judge, for good cause shown.
(1) Any party with a substantial interest in any appeal before the Court may with the written consent of all parties to the appeal, and with the leave of the President, be admitted to the case as an amicus curiae on such conditions as the parties or the President may impose.
(2) The President may grant such leave if he is satisfied that the applicant has sufficient interest in the case and has useful legal arguments to advance which do not duplicate those of the parties to the appeal.
(3) An application for admission as an amicus curiae shall be made in writing to the President no later than three weeks before the hearing of the appeal and shall
(a) briefly describe the interest of the applicant in the proceedings;
(b) identify the position to be adopted by the amicus in the proceedings;
(c) briefly set out the legal submissions to be advanced, their relevance, why they will be useful to the Court, and how they differ from the submissions of other parties; and
(d) be accompanied by the written consent of all other parties to the appeal to the applicant's admission.
(4) An order granting leave to be so admitted shall specify the date by which written submissions are to be filed and served on the other parties, and any conditions of such admission.
(5) An amicus curiae shall be limited to and shall not add to the record on appeal, shall not present oral argument unless ordered or permitted to do so by the Court; and shall not repeat arguments already advanced by parties to the appeal.
(6) An amicus curiae shall not be entitled to any costs for arguments presented but any costs incurred by a successful party arising from the intervention of the amicus may be recovered from the amicus if so ordered by the Court.
(7) Notwithstanding the provisions of this rule, the Court may at any time request the Attorney-General or any legal practitioner to appear or provide a brief as an amicus curiae on a pro deo basis.
Civil Appeals (rules 16-34)
This Part shall apply to appeals from the High Court, the Industrial Court or any other tribunal from which appeals lie to the Court in civil cases, and to matters related thereto.
Where an appeal lies to the Court as of right, such appeal shall be right instituted in the form of a notice of appeal signed by the appellant or the legal practitioner representing him. The appellant shall deliver, or cause to be delivered, such notice to the Registrar of the court below and shall at the same time serve a copy of such notice on the Registrar of this Court and on each respondent. The Registrar shall, subject to the provisions of these Rules, date and register such notice on receipt thereof.
(1) a notice of appeal shall set forth the grounds of appeal and shall state the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal. It shall also have endorsed on it an address within Botswana for service.
(2) If the grounds of appeal allege misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative, and these shall be numbered consecutively.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court on its own motion or on application by the respondent.
(5) The appellant shall not, without the leave of the Court, urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.
(6) Notwithstanding the foregoing provisions, the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant:
Provided that the Court shall not, if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.
(1) A notice of appeal shall be filed within six weeks of the date of the judgment or decision appealed against.
(2) Neither the Registrar of the court below nor the Registrar of this Court shall accept or register any notice of appeal which is presented after the expiration of the said period unless leave to appeal out of time has been previously obtained from this Court.
(3) A notice of appeal which is presented out of time without leave shall be endorsed as being out of time, shall be date stamped, and shall be returned to the presenter, with a similarly endorsed and date stamped copy to be retained on the file of the court below.
(4) An application for leave to appeal out of time may be filed on notice at any time within three months of the date of the judgment or decision appealed against but shall not be granted unless in the accompanying affidavit an acceptable reason for the delay is advanced and unless the appeal has reasonable prospects of success.
(5) No application for leave filed thereafter shall be granted unless there are exceptional circumstances accounting for the delay, and very strong prospects of success are shown.
(6) An application for leave to appeal out of time shall be accompanied by the proposed notice and grounds of appeal.
(7) When leave to appeal out of time is granted, a copy of the order granting such leave shall be annexed to the notice of appeal, and the notice and grounds of appeal filed with the application shall stand as being duly filed.
(1) Where an appeal lies only by leave of the Court or of the court Appeals by below the application shall be made on notice of motion stating shortly the grounds upon which the application is made. The application shall be supported by an affidavit deposing to all relevant facts, and shall be accompanied by the proposed notice and grounds of appeal.
(2) Where the application is to this Court, the affidavit shall in addition state, where applicable, that leave has been refused by the court below, and shall have annexed the judgment of the court below and the order or ruling refusing leave.
(3) Any respondent wishing to oppose such application shall file and serve a notice of opposition accompanied by an affidavit setting out his grounds of opposition within two weeks of receipt of the notice of motion.
(4) If leave to appeal is granted, a copy of the order granting leave shall be annexed to the notice of appeal, and the notice and grounds of appeal filed therewith shall stand as if duly filed and served on the date upon which leave is granted.
(1) Every person who by virtue of service on him of a notice of appeal becomes a respondent to any appeal shall within three weeks of such service file with the Registrar of the court below, and serve on the Registrar of this Court, on the appellant, and on any further respondents a notice of his intention to oppose the appeal, or to abandon the judgment appealed against, or to cross-appeal, or to raise preliminary points, or to abide the decision of the Court, as the case may be, and shall include in such notice a full and sufficient address for service and, where applicable, grounds of cross-appeal, or reasons why the judgment appealed should be varied or affirmed on different grounds, or particulars of preliminary points to be raised.
(2) If any respondent fails or omits to file such notice or to provide an address for service, it shall not be necessary to serve on him any other proceedings in the appeal or any notice of hearing thereof.
(1) Upon expiry of the time for response granted in terms of rule 21 (1) or upon receipt of the response, whichever may be earlier, the Registrar of the court below shall-
(a) in the case of appeals from any court or tribunal sitting in the southern region of Botswana forthwith forward the full original file of proceedings to the Registrar of this Court; and
(b) in the case of appeals from any court or tribunal sitting in the northern region of Botswana forthwith forward the full original file of proceedings to the Registrar of that court assigned to settle Court of Appeal records.
(2) The Registrar of this Court or the assigned Registrar, as the case may be, shall, within three weeks of receipt of the file of proceedings, summon the parties upon reasonable notice to appear before him to-
(a) settle the documents to be included in the record of appeal;
(b) fix the amount to be paid by the appellant to cover the estimated cost of transcribing (where necessary), making up and forwarding the record of appeal, calculated at the prescribed rates, being the full cost of one copy for the appellant and one fifth of the cost of the further five copies required to be produced, provided that photocopying charges shall be met in full at the prescribed rates;
(c) fix the amount to be provided by the appellant as security for the respondent's costs of the appeal and
(d) set a date by which security is to be so provided and by which the cost of the record is to be paid.
(3) No security for costs, nor transcription costs, shall be required from any respondent who cross-appeals.
(4) Such Registrar shall, whether any of the parties attend or not, provided that notice has been duly served upon each of the parties who filed an address for service, proceed to settle and determine these matters in accordance with the Rules.
(5) The Registrar shall forthwith issue an order stating his determination of the cost of the record and the amount of security required together with the deadline date for compliance and shall deliver such order to the party or parties attending for settlement.
(6) If either or both parties fail to attend, and the determination is made in their absence, the Registrar shall forthwith serve a copy of the order upon the appellant, who shall within seven days serve all other parties to the appeal with a copy thereof and make a return to the Registrar that this has been done.
(7) In settling the record the Registrar and the parties shall endeavour to exclude all documents and parts thereof (if lengthy) which are not relevant or required for the determination of the appeal and shall avoid duplication of documents, so as to minimise the bulk of the record.
(8) The Registrar shall ensure that the record and all documents included therein are in the English language, and that any documents in any other language are accompanied by true translations thereof into the English language.
(9) If the Registrar or any party objects to the inclusion of any document on the grounds that it is unnecessary and any other party insists upon its inclusion, such document shall be included, but shall be endorsed as having been objected to as unnecessary, and such endorsement may be considered in any taxation of costs consequent on the appeal.
(10) Any certificate or document in another language shall be accompanied by a proper English translation thereof.
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