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Tingwane v Attorney General (Civil Appeal No. 31 of 1995) [1996] BWCA 11 (1 February 1996)

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IN THE COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 31 OF 1995
In the matter between:
BEN TINGWANE     APPELLANT
AND
THE ATTORNEY GENERAL     RESPONDENT
MR. ATTORNEY MARITINTSHI FOR THE APPELLANT MR. ATTORNEY CHAMME FOR THE RESPONDENT
JUDGMENT
CORAM: W.H.R. SCHREINER J.A. J.H. STEYN J.A. P.H. TEBBUTT J.A.
SCHREINER J.A.
This matter has a long history. It has its origin in a bar row at a hotel in Francistown in January 1989. This was followed by the arrest of the Appellant and ultimately his discharge from the Botswana Defence Force in January 1989. There were disciplinary proceedings and ultimately on the 3rd February 1989 the Commander of the Botswana Defence Force ordered that he be discharged. On the 15th April 1993 the Appellant filed a Notice of Motion under Order 61 claiming an order directing that the decision of the Disciplinary Court as confirmed by the Commander of the Botswana Defence Force should be reviewed and set aside.

2 The matter came before Barrington-Jones ACJ and on the 25th
March 1994 the learned Judge dismissed the application with costs
on the ground that there had been unreasonable delay in
commencing the review proceedings which should not be condoned.
It was this issue which was argued before this Court.
Prima facie the lapse of a period of four years between the disciplinary proceedings and the commencement of the review proceedings is far beyond the limits of what is reasonable. No period is laid down in Order 61 within which review proceedings may be brought and what is reasonable will depend on the particular factual situation which exists. Barrington-Jones ACJ cites in his judgment the case of HARNAKER v. MINISTER OF THE INTERIOR 1965 (1) SA 372 (c) where Corbett J deals with the requirement of unreasonable delay in commencing proceedings for review and quotes a passage from the judgment of Gardner J in SAMPSON v. S.A. RAILWAYS and HARBOURS 1933 CPD 132 where the reason for requiring a measure of expedition are set out. Reasonable expedition is specially important where, as here, the proceedings take place before persons who were not legally trained and a careful and full record is not always kept. Even where the proceedings are before a trained legal person matters suchas the taking of objections and other procedural matters are often not recorded. Gardner J concludes that it is important

3 that proceedings should be taken while the matter is fresh in the
minds of the persons concerned and while those persons are
available to give testimony.
In cases in the Appellate Division of the Republic of South Africa there has been some discussion as to whether the enquiry in a case such as the present should be divided into two parts. The first part is whether the review proceedings have been commenced within a reasonable time after the decision of the tribunal sought to be reviewed. If the Court finds that the lapse of time has not been unreasonable that is the end of the matter. If, on the other hand, the time which has passed is found to have been unreasonable, there is the further question as to whether, notwithstanding the undue delay, this should, in the exercise of the Courts discretion, be condoned. The matter is exhaustively considered in SETSOKOTSANE BUSDIENS V. NASIONALE VERVOER KOMMISSIE 1986 (2) SA 57(A). The two part approach seems to me to be preferable and more likely to lead to a just conclusion than to treat the matter as one single issue. It was adopted by Barrington-Jones ACJ in case under appeal.
In the present case the period of delay is such that it cannot be argued that it was not excessive. I have already expressed the prima facie view that it was unreasonable and there are no other facts in the record which can disturb that view.

4 It is entirely unacceptable to delay commencing review
proceedings for a period of four years after the sitting of the
military tribunal. The hearing seems to have been concluded on
the 30th January 1989 having been commenced on the 24th January
1989 and the record is only eight pages of small single spaced
typing. In terms of Order 61 Rule 1(b) the Notice of Motion in
review proceedings should contain a provision whereby the officer
is called upon to despatch to the Registrar the record of the
proceedings sought to be corrected or set aside together with
such reasons as he is by law required or which he desires to give
or make within fourteen days of receipt of the Notice of Motion.
The Registrar then makes it available to the applicant under such
conditions as he thinks appropriate and the applicant may make
copies of such parts of it as he might wish to copy. He may then
within seven days file a further affidavit amending, adding to
or varying the contents of his first affidavit. The Notice of
Motion in the present case did not contain the provision whereby
the record of the proceedings might be obtained without delay,
but this does not affect the question of what, in the
circumstances, is a reasonable time. A period of a few months
often the dismassal of the Appellant from the Botswana Defence
Force was probably a reasonable time. In the present case the
lapse of four years is in my view grossly excessive.

5 The Appellant, after the order of Barrington-Jones ACJ on
the 25th March 1994, filed an application in the Court of Appeal
for leave to adduce new evidence together with a supporting
affidavit containing the evidence which he sought to lead. At
the hearing of this Appeal argument proceeded upon the basis that
the contents of the further affidavit were part of the record and
thus the application to lead further evidence must be regarded
as having been tacitly granted.
In the additional affidavit the Appellant says that in May
1989 which was three or four months after his dismissal from the
Defence Force he approached a Mr Mancwe of the firm Bogatsu
Mancwe and Partners - to act for him in initiating proceedings
against the Botswana Defence Force and his instruction took the
form of a direction to bring proceedings to review the
proceedings before the Disciplinary Tribunal. Soon after he had
approached Mr Mancwe he found that Mr. Bogatsu had left the firm
of Bogatsu Mancwe & Partners and that he would have to ask Mr
Bogatsu (presumably in his new practice) to open another file.
He did this on the 25th April 1990. Mr. Bogatsu initiated
proceedings against the Botswana Defence Force on the 16th
October 1990 but for reasons best known to himself Mr Bogatsu
withdrew from the matter whereupon the Appellant approached Mr.
Gaefele of Gaefele, Letsididi and Company to continue it. The

6
Appellant then proceeds:
"Unfortunately not knowing what was happening my case was withdrawn by my attorney Mr. Gaefele."
He then, not knowing why the matter had been withdrawn, reinstituted the proceedings on the 26th October 1992. It was then struck off by the Court five months later on the 3 0th March 1993 "on a technical basis". He "reinstituted" the application on the 15th April 1993. He states that he at all times had full trust and confidence in his attorneys Messrs Mancwe, Bogatsu and Partners and Gaefele and had no reason to believe that they were not acting in accordance with his instructions.
He concludes his affidavit with the bare allegation that he has been advised that he has a bona fide action against the Attorney-General in that he had not been given a fair trial and that the Commander had treated him "very harshly and not in accordance with the principles of natural justice." The Court is not in any position with this meagre information before it to form any view at all as to the merits of the Appellant's case for review. If this were possible it would play an appropriate part, in considering the issue of whether the discretion of the Court to condone the unreasonable delay should be exercised in favour of the Appellant.
I have come to the conclusion that the facts set out in the

7 Appellant's affidavit concerning the circumstances surrounding
the delay are insufficient to justify condonation.

Firstly, I think that the Appellant has not given an adequate explanation for the withdrawal of the first application for review on the 23rd June 1992. There must have been an explanation and, in the absence of such explanation, it would appear likely that it was done because it was not intended at that stage that the review application should be persisted in. The striking out of the application by the Court on the 30th March 1993 "on a technical basis" was similarly not expanded upon. Again the Appellant has not taken the Court into his confidence by setting out the exact reason for the striking out and the circumstances surrounding it.
At the hearing of the review application before Barrington-Jones ACJ certain correspondence was handed in - presumably by consent. From this it appears that the possibility of a review was mentioned only in one letter dated the 12th March 1989. Thereafter a number of emanated letters from the Appellant and his Attorneys. These, however, were all concerned with his damages claim arising from his arrest and, as far as his dismissal was concerned, the questions of his gratuity, a technical allowance, a deduction from his leave pay salary arising from a telephone bill and certain terminal benefits which

8
he allegedly did not receive. By itself this correspondence
might found a case based upon abandonment of the right to review the decision of the disciplinary tribunal. However there was for most of the period of four years following the Appellant's conviction some application for review lodged with the High Court. One suspects that the review proceedings might have been used merely as a threat in order to encourage settlement of the Appellant's monetary claims and not with an intention to prosecute the review claim with all expedition.
In all the circumstances of the present case I am in agreement with the decision of Barrington-Jones ACJ.
The appeal should be dismissed with costs.
W.H.R. SCHREINER JUDGE OF APPEAL

I AGREE:
J.H. STEYN JUDGE OF APPEAL


I AGREE:
P.H. TEBBUTT JUDGE OF APPEAL

DELIVERED IN OPEN COURT AT LOBATSE THIS DAY OF FEBRUARY 1996.

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