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Attorney General v Weighbridge Staff Per and Others (Civil Appeal No. 27 of 1994) [1995] BWCA 23 (31 January 1995)
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1
IN THE COURT OF APPEAL OF BOTSWANA
CIVIL APPEAL NO. 27 OF 1994 HIGH COURT MISCA NO. 96 OF 1994
In the matter of:
ATTORNEY GENERAL
Applicant
and
WEIGHBRIDGE STAFF PER
1st Respondent
ONALETHATA BAITSILE
2nd Respondent
SIMON SETLHABI
3rd Respondent
and FORTY FOUR OTHERS
Respondents
Mr. Attorney T. Moipolai for the Applicant Mr. Attorney T. Joina for the Respondents
JUDGMENT
CORAM:
SCHREINER, J.A. LORD WYLIE, J.A.
SCHREINER, J.A.
The present is an application for leave to adduce further evidence. There is also an application to condone late filing of the notice
of appeal, but it was conceded by the Applicant that, if leave to introduce further evidence was refused no purpose would be served
by pursuing the application for condonation. The proceedings have bearing only upon the case of nine of the original respondents,
namely, M. Baakile, C. Sethupa, J. Molefhe, D. Kafa, K. Mogale, B. Molatelele, 0. Moroka, 0. Baitsile and B. Phiri who were the Weighbridge
staff at Tlokweng at the time when the main application was brought. I will call these respondents "the Tlokweng staff".
The other respondents who were not stationed at Tlokweng and worked at other
2 weighbridges in Southern Botswana are not concerned with the present matter because the evidence which it is sought to introduce
only concerns the availability of habitable accommodation at the Tlokweng weighbridge.
The original respondents whom I shall call "the weighbridge staff", brought an application citing the Attorney General representing
the Ministry of Works, Transport and Communications as the respondent. They sought an order declaring that the withholding of a commuted
subsistence allowance ("the allowance") from the weighbridge staff was wrongful, unlawful and contrary to rules of natural
justice. They also asked for a declaration that the allowance was a part of their salary and therefore a right. They claimed an order
that the allowance outstanding since December, 1993 should be paid to each staff member and asked for the costs of the application.
In the High Court the weighbridge staff was successful.
On the 29th October, 1993 a minute was drawn up and sent to
all weighbridge staff at the various weighbridges throughout
Botswana. It purported to confirm information communicated
earlier to the effect that, because of insufficient funds,
payment of the allowances would be suspended with effect from the
14th December, 1993 until further notice. The minute continues:
"All the staff should consider themselves transferred to the weighbridge stations at which they are currently stationed. The
normal rotation of staff and payment of communal subsistence allowances will resume when the Department's financial position improves."
The weighbridge staff through the deponent Mr. Baitsile
contended that the allowance was paid for inconvenience suffered
by field workers who had to be in the field at various times.
3 It was said that they do not stay with their families, are not provided with good accommodation and when it is raining do not have
good protection. The precise legal basis of the complainant is not clear from the affidavit which was filed, but it does appear that
the failure to give the applicants a hearing before deciding to withdraw the allowance was one of the grounds upon which they seek
to challenge the suspension of their allowance. The deponent on behalf of the Attorney General was Mr. K.C. Kemokgatla who stated
that he was the supervising officer of all staff manning Government weighbridges and had custody of all documents relating to the
dispute. He says that his responsibilities included the designation of weighbridge posts, the deployment of staff and finding the
cheapest and most efficient way of executing the work. He states that in terms of the Regulations for Industrial Employees (R.I.E.)
an employee who spent less than six months at one place and who returned nightly to a temporary camp was entitled to the allowance.
The employee ceased to enjoy the allowance if he moved to a temporary camp at which he would be stationed to perform a work programme
that exceeded six months.
Mr. Kemokgatla stated that the weighbridge staff received an allowance because they were never at one weighbridge for more than six
months. This was to discourage bribery but apparently was not a successful measure and bribery has continued.
The conclusion of the learned Judge who heard the
application is set out in the following passage for his judgment:
"From the material before me, I think I am right in holding that neither the Principal Roads Engineer, Mr. Chikaha, nor the Director
of Roads were vested with power to stop or suspend the payment of the communal
4
subsistence allowance of P750.00 per month per employee, as sanctioned by the Director of Public Service Management in terms of the
R.I.E. and that even if they had that discretionary power they failed to direct their attention to matters which they ought to have
taken into consideration and exclude from their consideration matters which were irrelevant to what they had to consider. It is apparent
from the material before me, that in exercising whatever discretionary power entrusted to them, their minds were influenced by extraneous
considerations like how to improve the finances of the Roads Department and how to curb or eradicate the instances of corruption
in the system with the result that the decision to transfer the Applicants might aptly be described as unreasonable and expression
of bad faith."
The learned Judge does not deal with the question raised directly in the affidavit of the employees, namely, whether the decision
of the Principal Roads Engineer was a nullity because he did not provide the people affected with an opportunity to put forward reasons
why the allowances should not be suspended. However, we are not concerned in this application with whether the decision of the High
Court was or was not correct; we are dealing only with the question of whether further evidence should be admitted dealing with the
housing facilities available at the Tlokweng weighbridge.
The provision of "proper and habitable accommodation" arose when the Court was considering the problem of whether the Principal
Roads Engineer had the power to transfer staff permanently to the various weighbridges instead of continuing with the existing practice
of moving staff from one weighbridge another in order to minimise corruption. The Court considered that this could be done only if
proper and habitable accommodation was available at the weighbridges and referred in this connection to clause 12.1 of the R.I.E.
which stipulates that housing will not normally be provided for Industrial class
5
employees unless management required them to live on site to
perform their duties satisfactorily and there is nowhere else to
live within a reasonable distance from the place where they are
required to work.
The Court in its judgment referred to passages in the
founding affidavit in which the allegation was made that "good
accommodation" was not provided for employees at weighbridges and
that there was no protection against the elements. Photographs
of the tents at weighbridges were attached to the replying
affidavit and the Director of Roads states in his answering
affidavit that, as a restructuring initiative, he had decided
that permanent structures should be built at weighbridges and
staff would be posted there on a permanent basis. The comment
of the learned Judge on this statement by the Director of Roads
is as follows:
"With respect, had such initiative as conceived by the Director, been translated into action before the transfers ordered the
Applicant's present complaint could have been totally devoid of merit. But this is not the case."
I think that Mr. Moipolai was correct in submitting that the issue of proper housing was a major consideration in the view of the
learned Judge and that the case was argued on the basis that there was no such housing at any of the weighbridges which featured
in the application.
The Attorney General, by an application, filed after the judgment of the Court a quo had been delivered and after the period for noting
an appeal had expired, sought condonation of the late noting of the appeal and leave from this Court to adduce evidence to the effect
that at the Tlokweng weighbridge there was
6 habitable accommodation at the time when the application was launched, thus rendering the decision permanently to transfer staff
to this weighbridge and the withdrawal of the allowance in order.
The appeal will be pursued only if leave is granted to adduce further evidence so that it is appropriate to deal with this aspect
of the matter at the outset. If the application to lead further evidence succeeds, the question of condonation will then have to
be considered. If it is decided that further evidenced may be led, it is likely that the late noting will be condoned whereas if
the Court decides that no further evidence should be adduced, the Attorney General will not attempt to persist in the appeal.
The application for leave to lead further evidence is made
in terms of Rule 12(1) of the Rules of the Appeal Court which
provides that in a civil appeal the Court has power to "allow or
require any new evidence to be adduced" (Rule 29). The detailed
provisions are to be found in Rules 50 to 54 inclusive but do not
deal with the question of what has to be established before such
an application may be granted. There are authorities in England
and South Africa which set out the consideration which should
govern a decision regarding the admission of further evidence on
appeal. The general approach was stated in the oft-quoted
statement by Lord Chelmsford in Sheldon and Another v. Patrick
and Others 22LT 631 at 634, viz:
"It is an invariable rule in all courts, and one founded upon the clearest principles of reason and justice, that if evidence,
which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained is not produced
or has not been procured and the case is
7
decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by
granting a new trial"
This statement of the position has been adopted by the Appellate Division in South Africa (see Deintje v. Gratus and Gratus 1929 ADl at 6 and Staatspresident en 'n Ander v Lefuo 1990 (2) SA 680 at 691).
For the purpose of this case I would emphasise the requirement that the applicant must establish that it could not even with the excercise
of proper diligence have obtained the evidence when the answering affidavit was filed.
The general guiding principles in South African law are summarised in Civil Procedure in the Supreme Court by LTC Harms as follows:
(a)
It is essential that there should be finality to a trial and a litigant should therefore not be allowed to adduce further evidence,
except in exceptional circumstances.
(b)
The applicant must show that his failure to adduce evidence was not due to his negligence; he must satisfy the court that he could
not have obtained the evidence if he had used reasonable diligence.
(c)
The evidence tendered must be weighty and material and presumably to be believed, and must be such, that if adduced, it would be practically
conclusive.
(d)
If conditions have so changed that the fresh evidence will prejudice the opposite party, for example, if the witnesses of the opposite
party have scattered and cannot be brought back to refute the fresh evidence, or to explain their own evidence in the light of the
fresh evidence, the court will not grant the application."
The position seems to be substantially the same in England.
(See Ladd v. Marshall [19541 3 A11ER 745 and Phipson on Evidence
11th Edition paragraph 160-3) . The matter is also discussed in
Hoffmann and Zeffert the South African Law of Evidence (4th
8 Edition) pp479 to 482. For the purposes of the present case I consider that the law as stated in the above authorities can conveniently
be applied in Botswana.
The affidavit of the Attorney General is deposed to by a member of the Attorney General's Chambers. He says that further evidence
of which the Director of Roads was previously unaware had been received. In paragraph 7 of his affidavit he says that the new evidence
will show that, in respect of the Tlokweng weighbridge, habitable accommodation "was being provided" at the time the main
application was made. Mr. Baitsile in his affidavit states that Tlokweng weighbridge is the same as all the weighbridges involved
in the application and denies that habitable buildings existed at the relevant time. The form of the denial will be dealt with in
greater detail later.
The main application was launched in April, 1994 and the facts giving rise to it happened between October and the end of 1993. It
concerned the remuneration of employees of the State who presumably received a relatively low wage and for whom P750.00 per month
would be of importance in balancing the family budget. The deponent Baitsile refers to the problem of repossession of property by
reason of the reduction in remuneration consequent upon the removal of the allowance. Uncertainty as to what remuneration a lowly
paid worker will receive is a serious matter. Further delay in reaching finality in the dispute is therefore undesirable and, if
possible, to be avoided. The exercise of the Court's discretion involves a balancing operation - weighing the undesirability of delayed
justice against the undesirability of a judicial decision based upon possibly
9 incorrect facts. Other factors such as negligent conduct on the part of a litigant which gives rise to the presentation of incorrect
facts; the possibility that, as a result of an effort on the part of one party, the other may be able to practice a fraud upon the
Court and other considerations cannot be ignored.
We have not been informed as to what steps were taken to ascertain the relevant facts when the main application was first launched.
We are merely told there had been "late receipt of some new evidence." Why it was not received earlier is not clear. The
notice of motion was served on the Attorney General on the 11th April 1994. The answering affidavit was filed on the 13th May. On
the issue of the existence of habitable accommodation the Roads Department had to ascertain the situation at four weighbridges in
Southern Botswana including the one at Tlokweng. This could no doubt have been done in various ways, but, whichever way it was in
fact done, it should not have taken more than a few hours. I think that the Court is entitled to find that there must have been serious
negligence on the part of some official or officials.
It may be correct, as submitted on behalf of the State, because government is a large organisation, sometimes facts will not be transmitted
to the relevant authorities timeously. The fact that the State is a large organisation where the gathering of evidence may sometimes
prove difficult hardly explains why the simple task of finding out whether there was habitable accommodation at Tlokweng weighbridge
at the time the employees launched their application went wrong. In my view due diligence was not observed and, if it had been, the
evidence would have
10
been placed before the Court in the initial affidavit on behalf
of the State.
We are not in a position to form any view as to the
likelihood that the evidence which it is sought to admit will be
credible. It is true that, if the State tenders evidence that
at Tlokweng there were habitable houses at the relevant date, it
would prima facie seem likely that this would be believed.
However, in the present case Mr Baitsile states that he is based
at Tlokweng and commutes from Gaborone with all his colleagues
on, it must be assumed, a daily basis. In paragraph 4.1 of
affidavit he states:-
"An Appeal against the weighbridge staff based at Tlokweng alone from the factual point of view is wrong in that it implies that
there is something special about the said Weighbridge when in fact it is not so. Tlokweng Weighbridge is just the same like all other
Weighbridges that are involved in this application."
Paragraph 6.2 of the same affidavit is in the following terms:-
"While it is not true that construction was going on during the application before the High Court was being made, such a factor
would not assist the Applicant in any way. I find it strange for a person to take oath and say the construction was being made at
the time of the application when in fact since 1992 nothing was constructed at Tlokweng Weighbridge on behalf of the Ministry of
Works, Transport and Communications particularly, the Roads Department headed by Mr. K. Kemokgatla"
In the light of the above statements it is clear that the
decision as to whether there was habitable accommodation at the
relevant date at Tlokweng Weighbridge is likely to prove to be
a very contentious issue if the present application is granted.
At present no prediction can be made as to most likely outcome
of the dispute. It follows that the requirement of sub-paragraph
(c) of the quotation from Harms (supra) has not been met.
11
The next argument is that to refuse the application would be an encouragement to fraud. If this Court were to allow the decision of
the Court a quo to stand although it may be based on alleged facts which the nine respondents must have known to be false would be
to encourage fraud. No such conclusion can be reached at this stage on this issue because no decision can be come to as to which
version is factually correct. In my view the applicant has not satisfied the Court that the circumstances of the present case warrant
reopening the matter and introducing further evidence concerning the existence of habitable accommodation at Tlokweng Weighbridge.
Counsel for the Applicant rightly conceded that, if the additional evidence was not to be introduced, no purpose would be served in
persisting in the application to condone the late filing of the notice of appeal.
The applications have failed and there is no reason why costs should not follow the event. In the result the following order is made:
(a)
Both the application to lead further evidence and the application for condonation of late filing of the Notice of Appeal are dismissed.
(b)
The Applicant is directed to pay the costs of both applications.
DELIVERED IN THE COURT OF APPEAL THIS 31ST OF JANUARY, 1995.
W.H.R. SCHREINER JUDGE OF APPEAL
I agree
LORD WYLIE
JUDGE OF APPEAL
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