15 Feb 2021

The Court of Appeal in Gaborone has, on Wednesday, dismissed with costs, an appeal by Paul Bimbo challenging the legitimacy of the Omaweneno village Bogosi.

The appellant was appealing the decision of the High Court made on September 3, 2019, whereby his application for late filing of his review application was dismissed with costs.

Giving a background of both the application before the court a quo and the current appeal, a panel of judges made up of Zibani Makhwade, Motswagole Motswagole and Barnabas Nyamadzabo said the second respondent, Sam Bimbo was on February 25, 1997 officially appointed as headman of Omaweneno in the Kgalagadi District.   

Consequently on June 29, 2015, the appellant wrote a letter to the second respondent (Sam Bimbo) raising a complaint against his appointment.

They further revealed that the complaint was followed by a reply from the second respondent on June 21, 2017 stating that the Kgalagadi District commissioner assigned by the Minister of Local Government and Rural Development, had consulted with 30 members of the Bimbo family on August 9, 2016.

Judge Nyamadzabo said the consultation established that there was a practice within the Bimbo family to exchange Bogosi, not based on hierarchy, but rather on the process of consultation with family members. 

Therefore, Mr Nyamadzabo said the family had adopted a norm that anyone who was capable and trustworthy could be appointed a kgosi as long as he fell within the lineage of Bogosi in the Bimbo family.   

Consequently, there was no evidence proving the acting capacity of the second respondent, let alone that he was holding fort for Stephen Bimbo’s children. 

Also, there was no consensus within the Bimbo family to back the appellant’s claim to the Bogosi. 

As such, the Court of Appeal said the first respondent (The Director of the Department of Tribal Administration) concluded that based on the aforementioned reasons and the fact that the appellant had sat on his rights for at least 18 years, he had no justifiable claim to the Omaweneno Bogosi and that the second respondent’s appointment as headman was proper and justified.

As the appellant was aggrieved by the response of the first respondent, he filed on May 24, 2018, a notice of motion with the High Court seeking leave in terms of Order 61 Rule 8 of the Rules of the High Court to file his application for review out of time and that he would file such a review application not later than 30 calendar days upon being granted leave.  

However, the application was vigorously opposed by the respondents before maiden court to deal with it as it was brought out of time and the fact that the appellant failed to show good cause for the delay. 

The contentions were essentially upheld by the court, where the case was heard, said Judge Nyamadzabo.

In essence, the court said, “There is no merit in all the appellant’s grounds of appeal. 

No good cause has been demonstrated by the appellant as to why he took seven months beyond the four months prescribed by Order 61 Rule 8 to file his review application.”

As the appellant contends that his path to Bogosi was so clear, the court said it should not have mattered when he wanted to assume the post. 

“This being the case and as common with other tribes with the hereditary Bogosi, the appellant should not be facing any hurdles if he is the one entitled to Bogosi. 

The fact, however, is that he is inconsistent with a strong case that he alleges he has on the merits. Moreover, according to the first and second respondents, the appellant’s ‘mother was not legally married to Stephen Bimbo, and in terms of the Baherero of Omaweneno there is no way he can be headman. It was the appellant’s half siblings whose mother was married to Stephen Bimbo,” said Judge Nyamadzabo.

However, the appellant stated in his replying affidavit that “Stephen Bimbo married Norah Kalako, who is my mother. They divorced sometime in 1967.” 

The Court also observed that the appellant was old enough to be appointed headman in 1997 if his contentions that he was denied such an appointment in 1986, solely on account of age, was to be believed.

“The appellant had essentially waited for about 18 years (from 1997 to 2015), coupled with the seven months delay beyond the four months in which he was to file his review application in terms of Order 61 Rule 8 of the Rules of the High Court are actions of a person who did not believe in the strength of his case in pursuing what he claims was his birth right in the order of succession to the chieftainship/of Omaweneno.

“Before the seven months, including the years between 1997 and 2015, the appellant had all the time to engage in broad consultation with Morafe at Omaweneno. And because he has not demonstrated his case on the merits, it cannot be said that he has any reasonable prospects of success at the review were his case to proceed to that stage.

The result is that the maiden judge to handle the matter was justified in dismissing the application for leave to file a review application out of time with costs. 

The order is that the appeal is dismissed with costs.  ends