SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 1995 >> [1995] BWCA 34

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Manson Holdings v Nalin (Civil Appeal No. 26 of 1994) [1995] BWCA 34; [1995] B.L.R. 446 (CA) (11 July 1995)

PDF of original document.PDF of original document

.RTF of original document

1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 26 OF 1994 HIGH COURT CIVIL CASE NO. F. 13 9 OF 1994
MANSON HOLDINGS  -        Appellant
and
V.R. NALIN       -        Respondent
Mr. I. Segopolo for the Appellant Mr. V. Majoko for the Respondent
JUDGMENT
CORAM; A.N.E. AMISSAH JP J.H. STEYN JA G.G. HOEXTER JA
HOEXTER J.A.;
This is an appeal against the judgment of the High Court of
Botswana sitting at Francistown. I shall refer to the appellant
as "the defendant" and to the respondent as "the plaintiff".
Pursuant to a written agreement ("the contract") between the
parties the plaintiff, who is an accountant, began working for
the appellant, which is a private company, on 27 January 1992.
In terms of Clause 1 of the contract the employment was for a
period of 2 years. Clause 9 of the contract was in the following
terms:-
"You shall be under probation for a period of 3 months from the

2
date of joining and during this period notice of at least 30 days is required for the termination of this contract. Thereafter notice of at least 90 clear days is required,-"
By letter dated 31 July 1992 the defendant gave the
plaintiff notice -
"according to our written
agreement of employment  of 3
months effective today, to terminate your services."
In the Court below the plaintiff sued the defendant, under CLAIM I, CLAIM II, CLAIM III and CLAIM IV, for payment of four different sums of money. All four such claims, so pleaded the plaintiff, were "due and payable under the contract." The defendant resisted the action which came before ABOAGYE J. Having heard evidence and argument thereon, the learned Judge dismissed the first, third and fourth claims. The plaintiff's CLAIM II, which related to payment of a gratuity, succeeded, albeit in an amount rather less than that claimed. Having regard to the plaintiff's limited success the trial Court ordered each party to bear his or its own costs.
Relevant to CLAIM II was clause 3 of the contract which
provided as follows:-

3
"After the successful completion of 2 years employment you [the plaintiff] will be entitled to a gratuity of 25% of your basic salary;"
In its judgment the Court below held that as a result of the
defendant's letter dated 31 July 1992, in which it had
terminated the plaintiff's services -
"the plaintiff's appointment with the defendant had come to an end on 31st October, 1992 through no fault of his."
In this connection, so reasoned the learned Judge -
"it was the defendant who
rendered it impossible for the
plaintiff to complete the two
years service by terminating his
appointment      "
and he invoked against the defendant the doctrine of fictional
fulfilment. Accordingly the Court below decided that the
plaintiff was entitled to payment of a gratuity of 25% of his
basic salary for the period 27 January to 30 September 1992.
In considering whether in a particular set of facts there
is room for the application of the equitable principle of
fictional fulfilment, it is necessary to give close attention to
the nature of the contract involved and its precise terms. Thus,
for example, if the parties to a contract of employment, agree

4 in unqualified terms upon a fixed period of service, they are

bound thereby; neither is lawfully entitled to terminate the
contract before the lapse of such period. That, however, is not
the situation in the instant case. From clause 9, whose terms
have already been recited, it is clear that the contract
specifically provides for a termination of the plaintiff's
services within the two years period of employment fixed in
clause 1 thereof.
Counsel for the defendant contended that Clause 9 empowered either party to terminate the contract by notice in the manner therein prescribed. Counsel for the plaintiff conceded that this was the legal position. His concession, so I consider, was correctly made. There is nothing in the contract which suggests that it was the intention of the parties that the right to terminate by notice should be enjoyed only by the plaintiff.
It follows that this was not a case of an employer taking advantage of his own default to the injury of his employee. The defendant was not in default. It did not wrongfully prevent the realisation of the condition. By its notice of 31 July 1992 the

5 defendant was exercising its lawful right. Well knowing that the
defendant had this right, the plaintiff was content to stipulate
for a gratuity which would accrue only upon successful completion
of two years employment. In these circumstances the condition
upon which Clause 3 made payment of the gratuity dependent, could
not be deemed to have been fulfilled against the defendant.
A further difficulty confronting the plaintiff is this. Clause 3 does not provide for the payment of a reduced (pro rata) gratuity payable upon completion of any period of employment less than two years. In an attempt to surmount this obstacle counsel for the plaintiff urged that a tacit agreement to this effect might be inferred from the conduct of the parties. However, such a tacit agreement was neither pleaded nor is it reflected in the evidence adduced at the trial.
It follows that that part of the trial Court's judgment
which upheld the plaintiff's claim for payment of a gratuity
cannot be allowed to stand. In the result the appeal succeeds
with costs. The order of the Court below in respect of CLAIM II
(the gratuity) to the effect that the plaintiff is entitled to

6 judgment in the sum P6,631.00 is set aside. The order of the
Court below that each party will bear his or its own costs is
also set aside. In substitution of the aforementioned two orders
the following orders will issue:-
"(1) The plaintiff's Claim II for payment of a gratuity is dismissed.
(2) The plaintiff will bear the defendant's costs of the action."

Ujfc
Delivered in open court this ...V.V-: day of July, 1995
G.G. HOEXTER J.A.
I agree.         ....
A.N.E. AMISSAH
I agree.        
J.H.STEYN J.A.

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1995/34.html