HOW TAU GRADING’S “MIDNIGHT” COURT BID BACKFIRED

In a stinging ruling, the Court of Appeal set aside Tau Grading’s ex parte orders free z ing project funds and blocking site access. The judges found the urgent application was brought without proper notice, without full disclosure, and without legal basis for an anti-dissipation interdict , a costly misstep that has left Tau Grading to fight its dispute with Pro-Serve in adjudication, not in court. Writes The Business Weekly & Review Staff Writer

Tau Grading’s attempt to halt work and freeze millions in funding on the Modipane to Mabalane Road project has collapsed in the Court of Appeal, with judges ruling that the company’s urgent court action was flawed from the start. The dispute, which began as a contract termination row between Tau Grading and development manager Pro-Serve, ended with the court discharging the interim orders, awarding costs against Tau Grading, and sending the parties back to the contract’s own dispute process.

Tau Grading's application failed not on the merits of the debt dispute, but on the manner in which it approached the court. The company proceeded without notifying Pro-Serve, failed to disclose all material facts and did not satisfy the legal threshold required for the extraordinary relief it sought.

The Project And The Falling Out The Modipane to Mabalane Road was being delivered under government’s Development Manager Model. The Ministry of Transport and Public Works appointed Pro-Serve as development manager. Pro-Serve then entered into a construction agreement directly with Tau Grading. The government remained the financier and owner, but had no direct contract with Tau Grading. Tensions boiled over in September 2024. Pro-Serve wrote to Tau Grading denying breach and denying arrears on interim certificates. It cited clause 14.16 of the contract: Pro-Serve only had to pay Tau Grading once it had been paid by the client. After more exchanges, Pro-Serve purported to terminate the contract on 12 September 2024 and ordered Tau Grading off site. Tau Grading disputed the termination and referred the matter to adjudication under clause 20 of the contract , a private, fast-track process agreed by the parties. For more than a year, the project remained stalled. Tau Grading says it then learnt in early November 2025 that Unik Construction was mobilising equipment to the site, which it interpreted as a sign that Pro-Serve was moving to replace it.

The “Midnight” Application: What Tau Grading Asked For On 11 November 2025, Tau Grading went to the High Court ex parte , meaning without telling Pro-Serve, Absa Bank, or Unik Construction , on a certificate of urgency. It asked for two sweeping interim orders : a n anti-dissipation interdict intended t o stop Pro-Serve and Absa from releasing any project funds to Pro-Serve or anyone else, until Tau Grading’s adjudication claim was decided.

Alternatively, that the money be paid to the Registrar of the High Court. Tau Grading argued Pro-Serve had no assets in Botswana to attach for a claimed P10,834,407.23 and that once Unik started, government money would be diverted away from it.

Further, Tau Grading sought a prohibitory interdict t o stop Pro-Serve and Unik from “contaminating, altering or fettering” the works or dispossessing Tau Grading of its alleged lien and exclusive possession of the site. Police were to be authorised to enforce it. The court granted a temporary court order on 12 November 2025, returnable 3 December 2025, making the orders effective immediately. The Attorney-General, cited as 2nd respondent, filed a notice to abide and took no further part. Why Tau Grading Lost

The first technical blow came on procedure. A rule nisi is temporary by design. This one expired on 3 December 2025. The matter was postponed several times to allow filings and argument. But no one applied to extend the rule nisi past 3 December. Under Botswana law, a rule nisi that is not extended on the return date lapses and cannot be revived. The Court of Appeal cited Ex parte Tati Nickel and De Klerk v s Merry Hill. The court acknowledged one exception , where judgment is reserved , but said no good reason was shown here. “Although this conclusion would ordinarily result in itself in the upholding of the appeal,” the judgment said, the court went on to address the bigger issues because of their public importance. The most damaging finding concerned the decision to bring the case secretly. Courts treat ex parte applications with extreme caution. The principle, as the Court of Appeal restated, is elementary: “both sides must be heard before any adverse order or finding is made.” Ex par te orders are only for “extraordinary and pressing warrant” , where giving notice would defeat the purpose, for example if assets would be hidden. Tau Grading’s reason for urgency was Unik’s mobilisation. It argued in paragraphs 47-48 of its affidavit that if Pro-Serve and Unik got notice, they would “take steps to frustrate the ends of this application” and that Tau Grading had “no other security” aside from freezing Pro-Serve’s bank account. The Court of Appeal was not persuaded. It drew a sharp distinction with cases like Maxi Save v s Relyant Retail, where a landlord feared a tenant would remove movable assets. Here, the court said, the “lien” was over a public road and immovable works. Tau Grading never explained how, even with notice, Pro-Serve or Unik could “contaminate, alter, fetter or dispossess” it of completed roadworks. Unik had taken days just to move some equipment. There was “no demonstrated precipitative action.” Worse, the court found Tau Grading used the order aggressively. Within weeks, on 2 December 2025, it launched contempt proceedings and tried to get Absa bank statements , before Pro-Serve had even filed its answering papers. Citing the recent SAGG Investments decision, the court warned against the “brutal instrument” of an ex parte order that gives one side a “fait accompli” and forces the other to fight from a position of “unfair disadvantage.” “There was clearly no extraordinary and pressing warrant to bypass the elementary rule of hearing a party before an adverse order was made against it,” the judgment concluded. Applicants in ex parte cases owe the court “the utmost good faith.” They must disclose not just facts that help them, but also adverse facts and defences the other side would raise. The Court found Tau Grading fell short on three counts: First, it did not deal with Pro-Serve’s letter of 9 October 2025, annexed to its own papers, in which Pro-Serve was “firm on its termination” and demanding vacation. The court said Tau Grading must have anticipated Pro-Serve would bring in another contractor. Withholding that context deprived the judge of a full picture. Se cond, it widened the dispute beyond what was in adjudication. Tau Grading’s 14 October 2025 referral was only about the validity of the termination. It was not about unpaid certificates. Yet the founding affidavit blurred the lines, and never asserted that Pro-Serve had actually been paid by government so as to trigger clause 14.16. Third, it did not show why damages would be an inadequate remedy. The court noted that even if Tau Grading won in adjudication, it could claim damages for wrongful termination. The mere difficulty of enforcing against a company with no local assets did not justify the “extraordinary remedy” of freezing project funds. “Orders obtained on presentation of partial and incomplete information to the court solely for the purpose of snatching an order in the absence of another party should not be sustained,” the judgment said, citing Anderson & Coltman. An anti-dissipation interdict , Botswana’s version of a Mareva injunction , is meant to stop a respondent from deliberately arranging affairs to defeat a future judgment. The applicant must show specific, perverse conduct. The court found Tau Grading did not. It never showed that Pro-Serve and Unik were acting outside the normal course of business. It never identified what “perverse” steps were imminent. Crucially, Tau Grading had not even asked the adjudicator to stop Pro-Serve from hiring a replacement contractor. And its money claim was not before the adjudicator at all. “The re was therefore insufficient factual and legal basis for the grant of this extraordinary remedy,” the court held. Tau Grading also claimed a “developer’s lien” over the site. Because the other grounds succeeded, the Court of Appeal said it did not need to decide that issue. Tau Grading argued the interim order was not appealable. The court disagreed. While interim orders are usually not final, this one was different. The questions of anti-dissipation, lien, and propriety of ex parte process would never be decided by the adjudicator. Only Tau Grading and Pro-Serve are parties to the adjudication. Absa and Unik are not. Adjudication is also a private process, separate from court. Therefore, the High Court’s decision was “final on the issues before it” and appealable as of right. The Court of Appeal’s order was decisive: The appeal is upheld with costs against Tau Grading. The rule nisi of 11 November 2025 is discharged. Tau Grading must pay the costs of the High Court application. That leaves the core commercial fight where it started: in adjudication between Tau Grading and Pro-Serve over whether the September 2024 termination was valid. For Pro-Serve, the ruling clears the way to proceed with Unik Construction and to access project funding without a court freeze. For ABSA, it removes the risk of being caught between a court order and its client’s instructions. Legal obs ervers say the judgment is a reminder on three points that will resonate across Botswana’s construction sector: Don’t use urgency to skip notice unless you really must.

The court’s strong language, echoing SAGG and Knox D’Arcy, signals fatigue with “strategic” ex parte filings. Judges will look hard at whether real, imminent harm was proven. The failure to address the 9 October letter was fatal. “You must speak for the absent party,” the court reminded litigants. If your dispute is about termination, ask for that. If your claim for money is not in adjudication, don’t ask a court to freeze funds on that basis. Anti-dissipation orders are for proven asset-hiding, not for g eneral leverage. The Modipane-Mabalane project itself remains a government priority. With the interdict gone, work can resume. But the litigation has cost time, money, and relationships. As the court put it: the procedure “should be sparingly used and carefully confined.” Tau Grading’s attempt to do the opposite is why it lost , and why Pro-Serve walked away with the site, the funding, and the costs order.