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Zimbank Botswana Limited v Makura (Civil Appeal No. 6 of 1994) [1994] BWCA 26; [2002] 2 B.L.R. 497 (CA) (14 July 1994)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 6 OF 1994 HIGH COURT MISCA F 89 OF 1994
In the matter between:
ZIMBANK BOTSWANA LIMITED         Appellant
and
DIANA CATHERINE MAKURA   Respondent
Advocate B. Spilg [with him Mr. Y.S. Moncho] for the Appellant Mr. P. A. Kgalemang for the Respondent
JUDGMENT
CORAM: A.N.E. AMISSAH J.P
W.H.R. SCHREINER J.A. LORD D. BRAND J.A.
SCHREINER J.A.:
The Respondent in this appeal commenced proceedings by way of a Notice
of Motion dated the 20th October. 1993 asking the Court to grant an Order: -
"1. Directing that a letter dated the 16th September, 1993 written to the Applicant [the present Respondent] by [the present Appellant] terminating her contract of employment was a breach of the said Contract of Employment.
2.     
Directing Respondent to pay P31 242.00 as damages for the breach of the said Contract.
3.     
Granting costs to Applicant against the Respondent if such application is opposed.
 4.     
Granting Applicant further and/or alternative relief."
I shall refer to the parties as Appellant and Respondent respectively because the present Respondent was the Applicant in the court below.
It is not necessary to recite the facts and issues in the present case because of the conclusion of which this Court has come to concerning the point in limine taken by the Appellant objecting to the procedure adopted by the Respondent in commencing proceedings byway of application rather than action. Suffice it to say, that the Respondent's claim for damages was alleged to have

2
arisen when she was prematurely dismissed before the term of her employment had expired. Cotran J., after saying that the damages were "liquid damages" entered judgment in favour of the Respondent as prayed with costs minus any indebtedness she might have towards her former employers. What the amount of any such indebtedness might have been was not particularised by the learned Judge. The order of the Court awards to the Plaintiff the sum of P31.420 which is slightly more than asked for in the Notice of Motion, but nothing turns on this.
At the outset it should be said that the learned Judge was wrong in holding that the damages were liquid or liquidated. The Respondent had accepted the Order of dismissal by the Appellant and was claiming that as a result of that breach of contract by the Appellant she had suffered damages in the amount claimed. The measure of damages in such a case is not the amount which she would have received had her services been continued and she had been paid monthly until the date when the term of the contract would have expired. She would have been expected to have looked for alternative employment either in this country or in her own country. Zimbabwe. Her obligations in this regard would have been subject to any constraints on her employment by the laws of Botswana and her work permit and the practicability of returning to Zimbabwe and finding work there in the light of her family obligations. It is conceivable that these considerations would mean that she could not and cannot obtain other employment during the remaining unexpired term of what she alleges was the unexpired term of her employment, but whether this is so or not is a matter for evidence which can only be decided after oral evidence under oath has been led and there has been an opportunity for cross-examination by representatives of the opposing party. Only after this process has been followed will it be possible for a Court to assess the amount of her loss. The claim for damages is an illiquid claim and not. as the

3
learned Judge found, a matter which could easily be determined without weighing all the factors involved. The matter is summed up in a leading text book, as follows:
"The normal measure of damages [in the case of wrongful dismissal] is the amount the employee would have earned under the contract for the period until the employer could lawfully have terminated it. less the amount he would reasonably be expected to earn in other employment. The dismissed employee like any innocent party following a breach of contract by the other party must take reasonable steps to minimise his loss. In the case of wrongful dismissal these reasonable steps mean that the employee must seek and accept any reasonable offer of other employment. If he fails to take other employment when he ought reasonably to have done so. damages will be assessed on the basis of the difference between the salary or wages under the broken contract and what he would have received from the substituted employment." [Chitty on Contracts 26th Edition Vol 2 paragraph 3 989]
The question for decision therefore is whether for unliquidated damages
-' a claim may be initiated by way of application or whether the claimant should
have commenced proceedings by way of action. I have not overlooked the fact
that prayer 1 of the Notice of Motion is for a declaration of rights
concerning the alleged wrongful termination of the contract. However, I agree
with Counsel for the Appellant that the ultimate purpose of the application
was not to obtain a declaration by the Court as to the rights and wrongs of
the termination of the contract though, of course, this was a step along the
line toward to the final purpose of obtaining damages. I am by no means sure
that, if the application had been purely for a declaration of rights, the
Court would, in its discretion, have entertained it. It has been said that
litigation should generally cover the whole of a dispute and not be divided
into sections, thus taking the time of the Court on these than one occasion.
This consideration is dealt with in detail in S.A. EAGLE
VERSEKERINGSMAATSKAPPY BPK V. HARFORD 1992 f21 S.A. 786 TA1 in connection with
appealability of a decision which affects only part of a case. It is not an
absolute rule that all aspects of a case should be embodied in one proceeding,
but where, as here, there is an allegation of breach of contract and a claim

4
for damages flowing from that breach, the Plaintiff should generally be
required to put his case into one set of proceedings. He has done so and his
procedure must be judged as he has chosen. There was no question of any
agreement between legal representative that the case should be divided into
separate parts, nor was the Court asked to make any Order in this regard.
"Civil proceedings in the Supreme Court may be commenced in several ways and may take various forms. Civil proceedings may be commenced by way of a Summons or a Notice of Motion." [Laws of South Africa Vol. 3 paragraph 16].
"In the case of application proceedings there is no clear distinction between the pleading stage and the trial stage. In essence, an application consists of the summons, declaration and evidence all rolled in one. The affidavits take the place of the pleadings and not only formulate the issues of fact between the parties but also embody the evidence which each wishes to adduce. The hearing of an application therefore consist almost exclusively of legal argument upon the facts and it is only in exceptional cases that viva voce evidence is adduced."[ibid paragraph 17]
Application proceedings are intended in general for cases where, at the outset, it is not anticipated that it will be necessary to adduce viva voce evidence in order to reach a decision. This type of procedure forms part of the law of Botswana and is to be found essentially in Order 12 of the Rules of the High Court which is similar in many respects to the Rules of Court of Supreme Court of South Africa. Because both are designed to attain the same purpose i.e. to enable a dispute to be determined without the necessity of going through the lengthy procedures of defining the issues by pleadings and for preparing for and holding a trial where viva voce evidence is led. the many authorities in South Africa on various aspects of application procedure may be helpful in considering the rules governing applications in Botswana.
I will assume, though not decide, that the issue concerning the conditions of employment of the Respondent and the correctness of the alleged premature termination of her services are things which can be decided by having regard to the facts set out in the affidavits which were common cause

5
or not adequately denied or explained by the Appellant. I will confine myself to the issue of damages. I have already expressed the view that the finding by Cotran J. that the damages were "liquid" is not correct. Thus in the absence of an admission concerning the quantum of damages, this will be an issue which will have to be resolved by oral evidence.
In her founding affidavit the Respondent made no statements of fact concerning the quantum of damages which she suffered as a result of the alleged breach by the Appellant of the contract of employment with herself. She merely prayed "for damages as caused by such a breach for the resultant loss of wages." The amount of her wage is to be found in the papers. The amount stipulated in the Notice of Motion of P31 242 is merely the total amount which the Respondent calculated she would have received if she had continued in employment until the date upon which, according to her, the employment would have terminated in terms of the agreement. On behalf of the Appellant it is objected that the Respondent was using application proceedings to obtain relief in the nature of illiquid damages, that there is no evidence as to how the damages claimed are calculated and it is denied that the Appellant is indebted to the Applicant in the amount alleged or at all.
There can be no doubt that, in order to prove damages, viva voce evidence will be necessary and. for this reason, application proceedings were inappropriate. There has been a case in which damages of 2.2.0 was awarded on application. The amount was called "nominal damages" by the learned Judge though this may be questioned rCONDE'NAST PUBLICATIONS LTD V. JAFFE 1951 S.A. 81 TCI and see LAW S.A. VOL 7 PARAGRAPH 12 NOTE 151. It has not been followed and in my view the precedure was incorrect. A prayer for "an enquiry as to damages" is often made in intellectual property cases where practice has established it or it is laid down by statute. This is a case where a separate procedure is provided for the determination of damages and a claim for an

6
inquiry is thus not one for an unliquidated amount, but a direction by the Court on the following procedural step.
The basic principle is that if a dispute of fact may reasonably be anticipated when proceedings are commenced the person seeking relief should choose an action rather than an application as the way to commence the litigation. Sometimes, usually in order to save costs, disputes of fact arising unexpectedly in application proceedings are dealt with by directing that the Notice of Motion and founding affidavit should stand as summons and the answering affidavit should be regarded as the plea. Sometimes the matter in respect of which the dispute exists, is identified and defined and sent for the hearing of oral evidence on those issues only. Lastly, the application may be dismissed and the claimant left to commence proceedings by way of action. This involves more costs, but has the advantage of defining issues more clearly by way of pleadings than in the case where, as set out above, the affidavits serve the purpose of pleadings and evidence combined in one document. In the present case I think that the matter may best be dealt with by dismissing the application.
I would therefore make the following Order:-
 1.      The appeal is upheld
2.     
The Order of the learned Judge a quo is set aside and the following substituted: The application is dismissed with costs.
DELIVERED IN OPEN COURT AT LOBATSE THIS 14TH DAY OF JULY. 1994.
W.H.R. SCHREINER JUDGE Off ARPEAL
I agree  A.N.E. AMISSAH
JUDGE PRESIDENT
I agree  LORD D. BRAND
JUDGE OF APPEAL

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