JUSTICE KIRBY'S LEGACY OF JUDICIOUS AND EFFECTIVE CIVIL PRACTICE

Abstract

 In the instantaneous aftermath of the announcement of Justice Kirby’s retirement from the bench, the predominant conversations fixated around who was to be his replacement. These discussions were held with the incontrovertible appreciation of the invaluable contributions made by Justice Kirby to Botswana’s jurisprudence, particularly during his illustrious stay at the Court of Appeal. Attempting to abridge Justice Kirby’s legacy into a distinct portfolio is a considerably unmanageable task. One immediately gets to appreciate his legal dexterousness and the ease with which his expertise straddles virtually all fields of the law. Consequently, we found ourselves pleasantly spoilt for choice in our selection of the area in which we must pay tribute to a colossal legal giant.  We ultimately settled on assessing Justice Kirby’s contributions in civil practice. This paper, therefore, examines Justice Kirby’s contributions to civil practice in Botswana, principally through his adoption of a contextual and purposive interpretation of the Rules of the High Court. Through the classical case of Gofhamodimo v Koboyankwe; Tiro v the Attorney General, and other select cases, the paper highlights the instrumental efforts of Justice Kirby in curbing some of the potentially calamitous consequences of a formulaic approach to the Rules of the High Court, 2008, which ushered in a robust system of judicial case management.  His contribution in this regard is conspicuous and presents a triumph in ensuring just, efficient and speedy disposal of cases, which is what the judicial case management system intended. The percipience with which he approached and interpreted the Rules shaped the law in civil practice and unquestionably places him amongst the most memorable judicial figures in Botswana’s legal history.