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Chief Seepapitso Gateitsiwe v Attorney General (Civil Appeal No. 5 of 1995) [1996] BWCA 9 (1 February 1996)

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IN THE COURT OF APPEAL OF THE REPUBLIC OP BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 5 OF 19 9 5 CONSOLIDATED HIGH COURT MISCA APPLICATIONS Nos' 229/94 & 310/94
In the matter between:
CHIEF SEEPAPITSO GASEITSIWE      Appellant
and
1st Respondent 2nd Respondent
THE ATTORNEY GENERAL LEEMA KWENA GASEITSIWE
Mrs. N. Cassim for the Appellant
Mr. I. Kirby for the Attorney General
JUDGMENT
CORAM:   T.A. AGUDA, J.A.
LORD N. WYLIE, J.A. G.G. HOEXTER, J.A.
HOEXTER J.A.:
The Appellant is the Paramount Chief of the Bangwaketsi Tribe ["the tribe"]. He lives at Kanye. The 1st Respondent is the Attorney-General who is cited in his capacity as the representative of the Government in terms of Section 3 [1] of the State Proceedings Act [Cap 10:01]. The 2nd Respondent is the son of the Appellant.
The Minister of Local Government, Lands and Housing ["the Minister"] is the Minister responsible for the administration of the Chieftainship Act [Cap 41:01] ["the Act"]. The Minister made three separate orders against the Appellant in which he

2
respectively -
 [a]     suspended the Appellant's chieftainship of the tribe;
[b]    
appointed the 2nd Respondent to act as chief of the tribe pending the completion of an inquiry into the Appellant's fitness as a chief;
 [c]    
withheld 50% of the Appellant's salary as a chief.
By Notice of Motion the Appellant launched two applications in the High Court challenging the validity and seeking the setting aside of the Minister's three orders. The applications were resisted by the Respondents and thereafter voluminous affidavits and supporting documents were filed on behalf of the Appellant and the Attorney-General. By agreement the hearing of the two applications was consolidated and the Court below [Nganunu J.] was invited to pronounce a final judgment although initially rules nisi had been sought.
Having heard argument on the merits of the applications the Court below recorded its conclusions as follows:-
"In summary .... my decision is as follows.-
[a]    
The application to challenge the suspension of the Applicant from the position of Chief is refused and also as regards the second suspension. I have come to the view that the second suspension should have been validly given by the Minister to the Applicant if the first one was annulled.
[b]    
The appointment of the 2nd Respondent to act as Chief of the Bangwaketse pending the inquiry instituted by the Minister is unlawful.

3
[c] The withholding of 50% of the emoluments of the Applicant is wrongful."
After Counsel had addressed further argument to the Court below, Nganunu J. ordered that the Appellant and the Attorney-General should each bear his own costs. Against the order indicated under [a] above, and the order for costs, the Appellant appeals to this Court. There is no cross-appeal by the Attorney-General in respect of the orders [b] and [c] made by the Court below, or the order as to costs. The crisp issue on appeal is whether or not the suspension of the Appellant as chief was valid. In weighing that question the task, of this Court has been made lighter by the comprehensive and closely-reasoned judgment delivered by the learned Judge in the Court below.
Section 12 of the Act reads as follows:-"12. [1] If -
[a]    
the Minister has reasonable cause to believe that the Chief of any tribe, or
[b]    
any tribe or section of a tribe lodges with the Minister a complaint that the Chief of that tribe,
is incapable of exercising his powers, has abused his powers or is for any reason not a fit and proper person to be a chief, he shall suspend the Chief and inform him of the facts in writing of the reason for his suspension.
[2] Where a chief has been suspended and informed of the grounds of his suspension in accordance with the

4
provisions of subsection [1], the Minister shall make such inquiry or cause such inquiry to be made as he deems fit and consider any representations made to him by the Chief.
[3] If after the holding of an inquiry under subsection [2], the Minister's belief is confirmed or is of the opinion that the allegations made against the Chief have been proved, he may, if he considers it to be expedient and in the interests of peace, good order and good government, depose such Chief or suspend him from the Chieftainship for a period not exceeding fiver years."
In the letter whose terms are hereunder quoted I have, in
order to facilitate later reference, introduced the numerals
"[1], [2] and [3]", which are not part of the original letter.
By a letter dated 28 April 1994 ["the first suspension"]the
Minister wrote to the Appellant as follows:-
"Kgosi Seepapitso,
[1] You are aware that the proposed visit of Kis Excellency President Frederick Chiluba of Zambia at Kanye on 13th April, 1994 had to be cancelled in the face of lack of coordinated preparation for the visit owing to your non-co-operation, and in the light of uncertainty as to your whereabouts on that day.
[2] You are further aware that a kgotla meeting which I was to address to explain this cancellation to the Bangwaketse people did not take place due to your non-cooperation.

5
[3] In the light of these incidents and of your
past behaviour, it is now my duty to
exercise my powers in terms of Section 12
[1] [a] of the Chieftainship Act Cap 41:01 to
inquire into your fitness to be chief.
It is, however, proper and conducive to the proper carrying out of the provisions of that Section and of the Act generally, that I should explain the background of my intended actions to the Bangwaketse Tribe in kgotla before proceeding. This I shall do today.
Pending completion of the inquiry referred to above, you are hereby suspended in terms of Section 12 [1] [a] of the Chieftainship Act Cap 41:01 from performing the functions of Chief of the Bangwaketse and from occupying the position of the Chief of the Bangwaketse and from receiving the emoluments and privileges of that office.
For the period of the said inquiry, I hereby appoint LEEMA GASEITSIWE to be Acting Chief of the Bangwaketse in terms of Section 14 of the said Chieftainship Act.
You will be informed in due course of the persons who will be conducting the inquiry, and you will be given full details of the reasons for your suspension set out above."
Upon receipt by the Appellant of the first suspension his Attorneys disputed its validity. On 19 May 1994 the Attorney-General wrote to the Appellant's Attorneys a letter to which brief reference is here convenient. In paragraph 2 of the letter it was said, inter alia:-
"In his letter of 28th April the Minister informed the Chief of the reasons for this action, namely his non-cooperation surrounding the cancelled stop-over visit of President

6
Chiluba, and his behaviour prior to that. The Minister also undertook to give full details of these reasons to enable the chief to make proper answer in due course. Since you now formally act for the suspended Chief, those reasons are enclosed herewith."
Paragraph 5 [a] of the said letter mentions that the inquiry
will be chaired "by a person of judicial status". In paragraph
5 [b] the following is stated:-
"The suspended chief will be informed in advance of the reasons for his suspension [and indeed these are included herewith] . He will also be given full access to; all files, documents and other materials the inquiry may refer to with appropriate opportunity to deal fully with any relevant matters which he wishes to raise. In short, the Committee of Inquiry will be enjoined fully to comply with all the principles of natural justice."
On 29 June 1994 the Attorney-General wrote a further letter
to the Appellant's Attorneys. The concluding portion thereof
reads as follows:-
"While we regard both the suspension of the Chief [the first suspension] and the appointment of the Committee [of Inquiry] as being absolutely proper, we enclose herewith
[ i] A new notice of suspension [the second suspension] accompanied by the full reasons
[ii] A new notice of appointment of the Committee of Enquiry.
In our view these are surplusages as the existing suspension and appointment are effective. I trust they will allay your concerns, and in the unlikely event of a Court holding that the

7
initial documents were ineffective, they will stand as originating documents in their own right."
The contents of the second suspension [also dated 29 June
but signed by the Minister] corresponded broadly with the
contents of the first suspension. Paragraphs [1] and [2] of the
first suspension were repeated in identical terms. Paragraph [3]
of the first suspension was, however, amplified to read thus in
the second suspension:-
"In the light of these incidents and of your past behaviour, full details of which are annexed to this letter, it is now my duty to exercise my powers in terms of Section 12 [1] [a] of the Chieftainship Act Cap 41:01 to inquire into your fitness to be chief." [emphasis supplied]
It was the second suspension which prompted the Appellant to launch a second application. As already mentioned, however, the two applications were consolidated for purposes of the hearing.
The averments set forth in the Appellant's founding affidavit range far and wide. Well nigh every conceivable form of legal impropriety is laid at the door of the Minister. The Appellant says that in suspending him as Chief the Minister's conduct was mala fide: that he was actuated by a dishonest motive; that he conspired with others in order to depose the Appellant; and that his action was arbitrary and grossly unreasonable.

8
Section 25 of the Act provides that no Court shall have
jurisdiction to hear any cause affecting Chieftainship. Having regard to the nature of the alleged irregularities upon which the Appellant sought to rely, however, the learned Judge in the Court below at the outset correctly ruled that the Court's jurisdiction to entertain the applications was not ousted by Section 25 of the Act.
Before pondering the main submissions on the merits addressed to us by Mrs. Cassim on behalf of the Appellant, it is convenient to dispose at once of a procedural objection raised by her. It was based on the circumstance, that whereas the first suspension was dated 28 April 1994, full details of the "facts" upon which the suspension had been based were furnished only on 19 May 1994. This, so ran the argument, deprived the first suspension of legal force and effect. In examining this submission I assume, for the purpose of argument, that Mrs. Cassim is correct in contending that the written information which by Section 12 [1] the Minister is required to give the Chief must be given in the suspension order itself and not subsequent to it. For the reasons which follow the procedural objection seems to me to be unfounded.
As pointed out in the judgment of the Court below the following phrase in Section 12 [1] of the Act, namely:-

9
"and inform him of the facts in writing of the reason for his suspension."
is a cumbersome one. It is an example of poor draftmanship.
However, when this clumsily-worded phrase is viewed in the
context of section 12 as a whole, it appears to me to be
tolerably clear that the meaning properly to be assigned to it
is no more than this: That what the Minister is obliged to
communicate in writing to the Chief are the grounds or
allegations on which the Minister's belief that the Chief is not
a fit and proper person is based. Significant support for this
construction of the phrase in question is provided by the terms
in which subsections [2] and [3] of section 12 are couched. The
introductory words of subsection [2] read thus:-
"Where a Chief has been suspended and informed of the grounds of his suspension in accordance with the provisions of subsection [1] ...." [emphasis supplied]
No less revealing are the following opening words of
subsection [3] : -
"If after the holding of an inquiry under subsection [2], the Minister's belief is confirmed or is of the opinion that the allegations against the Chief have been proved ..." [emphasis supplied]
In the instant case, and in order to assist the Appellant
to prepare his case for the inquiry in terms of subsection [2],
the Minister on 19 May 1994 furnished the Appellant with the very

10
fullest details of his past behaviour which was part the reason
for his suspension. That was an entirely commendable step on the
part of the Minister in the interests of fairness. The question
which has to be answered, however, is whether the Minister was
legally obliged to incorporate such a comprehensive catalogue of
complaints in his notice of suspension dated 28 April 1994.
I do not consider that the Minister had such a legal duty.
In this connection I would respectfully agree with the following
observations of the learned Judge in the Court a quo:-
"...it seems to me adequate and to satisfy the requirements of the section, if at the stage of suspension, the grounds are stated in writing even in summary form, provided however, that there is sufficient clarity to enable the affected person to understand what the complaints are. After all, the section requires a statement of the facts, not the evidence. When I read the facts given in the letter [the paragraphs which I have numbered [1] , [2] and [3] ] . . . I believe that they are capable of constituting allegations of facts, which can constitute a reason for suspension. I do not mean that those allegation are established; that is the function of the Inquiry. I believe that they do not deal with frivolous matters, nor are they so succinctly stated as not to be intelligible."
It has been mentioned earlier that the Appellant's founding
affidavit made many and grave charges of dishonesty against the
Minister. So far from being borne out by the voluminous
affidavits and supporting documents before us, the charges of
mala fides and conspiracy levelled at the Minister are, in my

11
opinion, entirely refuted by the record. Indeed, one is left
with a distinct impression that these extravagant and ill-founded
allegations were simply part of a stratagem to circumvent the
ouster provisions in Section 25 of the Act.
It is clear that before he formed the belief that the
Appellant was not a fit and proper person to be a chief, the
preceding steps taken by the Minister were the following:-
[1] he considered reports of the Appellant's alleged misconduct submitted to him by his officials;
[2] he consulted the Appellant's files;
[3] he sought and obtained legal advice,-
[4] he reported to the Cabinet and took the advice of his Ministerial colleagues.
I agree with the submission of Mr. Kirby, who argued the case on behalf of the Attorney-General, that a proper reading of the record points to the conclusion that, in connection with the whole matter of the Appellant's chieftainship, the Minister throughout acted conscientiously and with scrupulous fairness.
Of the various charges of alleged impropriety it is necessary to deal only with the complaint of gross unreasonableness. It was said that the Minister's belief that the Appellant was not a fit and proper person to be a chief was so manifestly arbitrary and insupportable that it was a belief which no reasonable man could have entertained.

12
This argument is, I think, quite untenable, and it was
rightly rejected by the Court below. In this connection Nganunu
J. remarked:-
"... I cannot say that no reasonable man in the position of the Minister could question the fitness of the Chief based on these allegations [the allegations is paragraphs [1] , [2] and [3] of he first suspension]."
In support of her argument based on alleged "gross
unreasonableness" Counsel for the Appellant laid much stress on
the factors:-
[a]    
that the Appellant had been the Chairman of the House of Chiefs for the past 21 years, having been so elected in each successive year;
[b]    
that the House of Chiefs had never complained to the Minister in office at any particular time of the Appellant's conduct;
[c]    
that during the past 24 years the tribe itself had never required the Minister to investigate the Appellant's conduct.
The three aforementioned factors undoubtedly redound to the credit of the Appellant and would certainly be relevant for consideration by the Minister in weighing the case for and against the Appellant. But it need hardly be said that what must be looked at in this appeal is the entire portrait which emerges of the Appellant as a chief.
Objectively viewed the complaints against the Appellant listed in paragraphs [1] and [2] of the first suspension are both
substantial and serious. Of particular significance, however,

13
is the factor of the Appellant's "past behaviour" mentioned in
paragraph [3] thereof. The Appellant's past behaviour is detailed in the Annexure to the second suspension. It is a catalogue of transgressions which makes for dismal reading. It includes, for example:-
[a]    
a previous suspension as chief [in October 1973] for one year;
[b]    
repeated public warnings and reprimands for misconduct by the Vice-President, by the Minister, and by the Permanent Secretary;
[c]    
charges by the President [in November 1986] of offences against authority;
[d]    
a High Court conviction [in 1972] based upon the Appellant's unlawful order to have a Police Officer flogged in the Kgotla,-
[e]    
imprisonment for 14 days [in 1982] for contempt of Court;
 [f]    
a fine [in 1988] for assaulting a Customs Officer;
[g]    
failure to co-operate with and obstructing the Southern District Council, the Ngwaketse Land Board and successive District Commissioners in Kanye,-
[h] sustained dereliction of his duties as President of the Customary Court.
The abovementioned misconduct, which spans a period of more
than twenty years, reveals the Appellant as an irresponsible
despot with little respect for authority, peace and good order,
and no respect for law. His past record indicates that he is an
incorrigible trouble-maker.

14
Without in any way denying the long list of his past
transgressions the Appellant in his replying affidavit seeks
blandly to ignore them and to pretend that the Minister erred by
taking them into consideration when he formed his belief that the
Appellant was unfit to be a chief. All these incidents, so the
Appellant alleges -
"Were dealt with at the various stages when they arose and upon which decisions ... have already been pronounced."
Therefore, so contends the Appellant, they are "res judicata" and the Minister cannot rely upon them to justify the order of suspension. This argument does not bear a moment's scrutiny. It is self-evident that a chief's past record is directly material to the question of his fitness for the office.
Mrs. Cassim's first main submission to this Court was that the Minister failed to exercise a proper discretion in terms of Section 12 [1] in that his belief that the Appellant was not a fit and proper person to be a Chief derived from unsubstantiated allegations instead of objectively proven facts. Having regard to what I have already held to be the proper interpretation of Section 12 [1] , it follows that the Minister was fully entitled to rely for his belief on allegations; and the Appellant's argument on this point must fail. The first suspension was a preliminary precursor to a proper factual inquiry l"in casu an

15
inquiry not by the Minister himself but a Committee of Inquiry
headed by a lawyer]. The question whether the allegations against the Chief have been "proved" is one to which the Minister is required [in terms of Section 12 [3]] to apply his mind only after the inquiry required by Section 12 [2] has been held.
The second main submission advanced on behalf of the Appellant was that the principles of natural justice had been violated inasmuch as the Minister had failed to give the Appellant a hearing before the first suspension ordered in terms of Section 12 [1] .
Having carefully reviewed relevant decisions on the point
by this Court and by the Courts of England and South Africa,
Nganunu J. quite correctly accepted -
"that the Courts of Botswana will imply in a status a duty to hear the other side where an official is given powers to make a decision adversely affecting the interests, rights or property of a person unless it appears from the statute by express words or by necessary implication that that duty is excluded"
Having regard to the provisions of Section 12 of the Act the
learned Judge expressed the opinion that to accede to Mrs.
Cassims's argument would involve the gratuitous importation of
an additional hearing in the face of the compulsory hearing which
must be held at the time of the inquiry. He went on to say:-
"...that by putting this alternative mechanism of an inquiry with both parties making their case

16
for or against the suspension, the Legislature has in fact provided the hearing of the person affected in a much more meaningful way than is suggested by the argument of the Applicant."
The conclusion which the learned Judge reached on this part
of the case was -
"That the clear intention of Parliament was to exclude a preliminary hearing before the decision to suspend and to leave the hearing after the suspension and therefore that this point is without merit ..."
I am impelled to the same conclusion. Having due regard to
the provisions of Section 12 the inference that Parliament
intended the affected Chief to be heard at the inquiry stage, and
not all before the suspension order made in terms of subsection
[1], seems to me to be irresistible.
In my view all the attacks launched against the validity of the first suspension fail. This brings me to Mrs. Cassim's final submission. She urged upon us that inasmuch as the first suspension had not been withdrawn the second suspension was irregular and should be set aside. I do not think that there is any merit in this submission. If [as I have already held] the first suspension was legally effective, then the second suspension was a mere superfluity prompted by cautiousness on the part of the Minister. In his letter dated 29 June 1994 to the Appellant's Attorneys the Attorney-General was at pains to stress the propriety of the first suspension; and to point out that the

17
second suspension was "surplusage". The fact that the Court
below made no formal order setting aside the second suspension is no more than a trivial technicality. No such order was really necessary.
For all the aforegoing reasons the appeal is dismissed with costs.

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

G.G. HOEXTER [JUDGE OF APPEAL]

I agree;
T.A. AGUDA [JUDGE OF APPPEAL


I agree:
LORD N. WYLIE
[JUDGE OF APPEAL]

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