Botswana Housing Corporation v Rabana (Civil Appeal No. 27 of 1996) [1997] BWCA 14; [1997] B.L.R. 16 (CA) (28 January 1997)

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Botswana Housing Corporation v Rabana (Civil Appeal No. 27 of 1996) [1997] BWCA 14; [1997] B.L.R. 16 (CA) (28 January 1997)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 27/96
HIGH COURT MISCELLANEOUS APPLICATION NO. 94/94
In the matter between:
BOTSWANA HOUSING CORPORATION Appellant
and
GAOLEKWE DITEKO RABANA Respondent
Advocate S. DU TOIT SC and DR. H. LEVER SC for the Appellant Advocate A.N. GOODMAN SC and R. SOLOMON for the Respondent
JUDGMENT
CORAM: AMISSAH P
TEBBUTT JA ALLANBRIDGE JA
lEBBillXJA

Appellant is a body corporate created by statute viz the Botswana Housing Corporation Act No. 75 of 1970, as amended. The respondent, who is an architect, commenced employment with appellant in 1973 and rose through the ranks until he was appointed Deputy General Manager (Technical) in 1990, a position

2 he still held in 1992.
On 1 April 1992 the Acting General Manager of appellant wrote to
respondent informing him that after consultation with appellant's
Board of Directors (the Board) it had been decided to suspend
respondent from duty with immediate effect "to allow for
investigations on your conduct and failure to disclose the
correct information to the Board with regard to the award of
tenders and payments to construction companies" involved in
buildings for Appellant. Respondent was warned that he may be
called upon to provide information or explanations to the Board
or the Acting General Manager. Respondent replied on 6 April
1992 averring that as the word "alleged" did not appear between
the words "your" and "conduct" in the letter just cited, the
Acting General Manager either alone or jointly with the Board had
already made findings of fact as to his failure to disclose
correct information to the Board with regard to the award of
tender and payments to construction companies. He nevertheless
asked for information on what matters and on what dates he had
failed to disclose correct information, as to which tenders and
payments reference was being made and which construction
companies were involved. He concluded his letter of reply thus:
"I am rather surprised that findings with far-reaching consequences for me have been made either by yourself,

' the Board of the Corporation or both without at any ^k stage being given the opportunity to reply or explain the circumstances."
On 4 May 1992 the Acting General Manager informed respondent in
a letter that-

"the on-going investigations against you have so far revealed certain acts of misconduct committed by you in the performance of your duties. Disciplinary charges are accordingly being preferred against you."

He interdicted respondent from further performance of his duties.
On 1 June 1992 appellant's Acting General Manager wrote again to
respondent telling him that-

"In terms of clause 16.3 of the B.H.C. General Conditions of Service, you are hereby charged with Misconduct, the relevant particulars whereof are detailed below."

I shall refer to the charges which run to some 4 ^ pages of the
letter, and respondent's responses to them in due course. The
final two paragraphs of the letter read as follows:

"7. You are hereby given 14 days notice to answer the queries I have raised. If I do not receive satisfactory explanation, I will recommend to the Board to take whatever action they may deem necessary. Please take note that the queries I have raised are without prejudice to the further queries which may come as a result of any new evidence coming to light.

8. If by any chance you require to peruse any of the files in BHC's possession in order to give this written explanation, please phone the Acting General Manager in order to fix a suitable date for the inspection of the relevant records."

4 On 16 June 1992 respondent replied to appellant's letter. In his
opening paragraph he said that:

"It is indeed difficult for me at this juncture to respond to the numerous allegations contained in your letter dated the 1st day of June 1992, especially after the kind of abuse I have been subjected to."

He alleged that there was a vendetta against him, that he had
been unfairly suspended and that he was being victimised. He
then went to say this -

"However for the record I plead not guilty to all the charges preferred and as is contained in your letter under reply.

"I deny the allegations contained therein as if specifically
traversed by virtue of the following:- "

I shall set out his replies to the charges when I detail them. Suffice to say that in regard to most of them respondent said he denied them and "put (appellant) to the proof thereof" . In regard to two of them, however, he asked for further particulars. He concluded his letter of reply by saying that the allegations against him constituted defamatory statements of him and he reserved to himself the right to take whatever steps may be appropriate to deal with them. Appellant did not respond to those portions of respondent's letter calling for further particulars.

5 On about 21 August 1992 respondent received a letter dated 21
August 1992, from appellants' Acting General Manager terminating
his employment. It reads as follows:-
"Re: DISCIPLINARY PROCEEDINGS AGAINST YOURSELF

On the 14th August 1992, the Staff Committee of the Botswana Housing Corporation met to discuss your response to the charges which had been preferred against you. After discussing the matter at length the Committee decided to refer the matter to the Board of the Corporation since it falls under Section 12(4) of the Botswana Housing Corporation Act, Chapter 74:03 Of the Laws;

At its sitting on the 20th August 1992, the Board of the Corporation carefully and in detail considered your response to each charge. At the conclusion of its deliberations the Board unanimously concluded that you are guilty of gross misconduct in the execution of your duties, and that such misconduct merits dismissal without notice and with loss of all benefits, save payment for outstanding leave, effective from 1st April 1992.

You are accordingly hereby dismissed from the services of this Corporation with effect from 1st April 1992."

Respondent consulted an attorney who on 3 September 1992 wrote
to appellant stating inter alia that -

' "Our instructions are to advise you that our client's dismissal was both procedurally and substantially unfair."

This was followed by another letter from Respondent's attorney
on 15 January 1993 which reads as follows:-

"1. Our client was unfairly dismissed from his employment with the Botswana Housing Corporation 'BHC sometime ago.

2. The purported dismissal was substantively and procedurally unfair in that, inter alia, our client was not given a hearing whereby our client or his duly authorised representative be present."

Respondent accordingly demanded that a hearing be convened at
which he and/or his representatives be present and that he be
reinstated in his employment with immediate effect.

There was no response to this by appellant. As a result on 17 February 1993 respondent instituted proceedings in the High Court against appellant claiming inter alia reinstatement to his former employment and payment of various sums of money. I shall refer to this as the first application. Those proceedings were brought by the respondent on the premise that he was not bound by the Standard Terms and Conditions of Service of the appellant. It appeared, however, that in fact they were applicable to his employment. On 18 June 1993 Nganunu J. dismissed respondent's

? i ' '
7 claims, with costs without, however, considering respondent's
reply affidavit. Respondent thereupon appealed to this Court
which on 24 January 1994 ordered, by agreement between the
parties, that the matter be referred back to the High Court for
argument on all the affidavits filed of record. Before such
argument was heard, however, respondent withdrew his application
paid the costs in respect thereof, and instituted proceedings
afresh which are those concerned in this appeal.

The new or second application came before Horwitz J. in the High Court who sought directions from this Court in terms of Section 15 of the Court of Appeal Act (Cap 4:101) as to whether the withdrawal of the first application was competent and whether any High Court Judge could hear the second application or whether it had once more to be heard by Nganunu J. On July 1995 this Court ruled that there was no bar to respondent's withdrawal of his first application and that the second application could be heard by any Judge of the High Court. Respondent was ordered to pay appellant's costs.

In his second application respondent claimed an order (i) declaring his suspension and subsequent dismissal invalid (ii) reinstating him in his previous position; alternatively,

8
reviewing and setting aside the decision of appellant's Board of

Directors to suspend and dismiss him. He also claimed payment of his arrear salary and allowances from May 1992 to date of reinstatement and a statement of account and debate thereof of amounts due to him in appellant's "Provident Fund Scheme."

The application came before Barrington-Jones J. on 12 March 1996 who, in a written judgment delivered on 26 July 1996, found respondent's suspension and subsequent dismissal to be invalid and of no force and effect. He found that as a result respondent was entitled to payment of his full salary and allowances from May 1992 to the date of judgment and to a statement of his account in appellant's "Provident and Retirement Fund Scheme" and a debate thereof. The learned Judge, however, refused to order respondent's reinstatement. He awarded respondent his costs.

It is against this judgment that appellant now appeals to this Court. The respondent has filed a cross-appeal in which firstly, he avers that the Court a quo erred in not ordering his reinstatement and in which, secondly, he claims interest on the sums awarded him by the Court a quo.

In the Court a quo it was respondent's contention, which the

9
trial Court apparently accepted, that appellant in suspending and

dismissing him had not complied with its own procedural rules which are contained in the Standard Forms and Conditions of Service and which formed part of respondent's contract of employment with appellant. These required, so respondent contended, that respondent be given an oral hearing, at which witnesses be called and their evidence be tested by cross-examination, and which he had not been afforded. In any event, so respondent contended, appellant had disregarded the principles of natural justice and in particular the audi alteram partem principle in not affording him a hearing, the exchange of letters of 1 June 1992 from appellant alleging misconduct on respondent's part and respondent's response to it dated 16 June 1992 not being a proper observance of that principle. That being so, and appellant being a public authority, it was respondent's contention that the Court a quo was entitled to review the decision of appellant's Board of Directors to suspend him and ultimately terminate his employment.

Appellant's contention, which the Court a quo apparently did not accept, was that while it conceded that it had to observe the audi alteram partem principle, that did not require it to afford respondent an oral hearing, the exchange of letters being a

10
sufficient compliance therewith.
I have used the word "apparently" advisedly in reference to the
trial Court's acceptance or rejection of the various contentions
in as much as the learned Judge did not analyse those contentions
and give his reasons for preferring one to the other. What he
did was merely to set out in his judgment the various contentions
at length and then content himself by stating the following:

"And now having carefully considered all the submissions made by Counsel, I find on a balance of probabilities that the applicant must at least partially succeed in this application."

That "partial success" was a declaration that respondent's
suspension and dismissal were invalid and that he was entitled
to payment of arrear salary and allowances. It did not however,
include his reinstatement. The learned Judge's judgment is
accordingly singularly unhelpful to this Court and I shall not
refer to it again.
Appellant's grounds of appeal are, in short, that the learned Judge a quo erred in not finding that -

(a)

appellant's Conditions of Service entitled the Acting General Manager to suspend respondent without a hearing;

(b)

appellant had adhered to the Conditions of Service in dismissing respondent;

(c)? respondent had been given a fair and reasonable opportunity of making written representations and his failure to reply adequately to the charges in the letter of 1 June 1992 entitled appellant to dismiss him summarily;

(d)

that "the right to a fair hearing" does not necessarily mean the "holding of a formal enquiry and the hearing of oral evidence in the presence of legal representation."

(e)

that if respondents' dismissal was invalid he was not entitled to the payment of his arrear salary and allowances but was confined to an action for damages in respect of lost wages.

At the appeal the issue of respondent's suspension fell away, it
being accepted by respondent that the Acting General Manager was
entitled in terms of the Conditions of Service to suspend him
pending an investigation. The appeal turns on the summary
dismissal of the respondent by the appellant. It was common
cause that this had occurred without respondent being afforded
an oral hearing. The main issue in this appeal is therefore
whether the respondent was entitled to an oral hearing either

(a)

in terms of the provisions of the Conditions of Service; or

(b)

by reason of the applicability of the audi alteram partem principle

and if he was, whether the failure to afford him one rendered his
dismissal invalid. The subsidiary issues which arise are the
following:

(i) If the termination of respondent's service were invalid, is he entitled -

(a)

to an order reinstating him in his former position? (this arises from the cross-appeal);

(b)

to payment of all his arrear salary and allowances (this is part of appellant's appeal) and, to interest thereon?

(ii)
if the termination of respondent's services was not invalid is he entitled -

(a) to a statement of account and debate thereof in regard to his account with appellant's "Provident and Retirement Fund Scheme."

It is necessary at this stage and before dealing with the issues
to detail the charges laid against respondent and his responses
to them. It was contended by respondent that they were not
charges but merely enquiries. There is no substance in this
contention. As will be seen from them the relevant paragraphs
contain allegations of misconduct and dereliction of duty of a
most serious nature and respondent was invited to furnish
explanations in regard to them. They clearly constitute charges
and respondent, as appears from the preamble to his reply quoted
above, himself recognised them as such.
It must be emphasised, in regard to the contents of the charges, that respondent's position involved him in the tender process and

13
construction contracts of the appellant Corporation. It is not

necessary for me to quote all the charges nor is it necessary to set them out in extenso. I shall quote relevant passages of the more serious of them and respondents replies thereto. The Charges reads as follows:

"1. BHC HEADQUARTERS BUILDING. GABORONE

A. On the 22/11/91 the late Mr.
J.M.O. Letsholo wrote to Spectra
Botswana (Pty) Ltd as per
annexure "A" hereto. This letter
was copied to your in your
capacity as Deputy General
Manager Technical of BHC and as
such responsible for advising the
General Manager on all
construction contracts.

B. That letter purported to award a
contract that was to be presented
to the BHC Board for approval on
the 5/12/91.

C. You were aware that approval both
of the letter and of the award of
the tender had not been given by
the BHC Tender Committee and as
such was grossly irregular. It
was your duty to advise the Board
of the these facts. You did not
do so.

D. The company Spectra Botsana (sic)

(Pty) Ltd had not been registered in Botswana on that date and you could have had no knowledge either of its financial ability or its technical capabilities. Again you neither drew the attention of the Board or of anybody of these facts nor did

you advise that the company had not been registered and that it was not BHC'S policy to award contracts to unregistered tenders (Sic).

E. In the letter of offer which you approved of , you knew the amount mentioned was P53 million, yet when the papers were presented to the Tender Committee the figure was P50 million. You were present at the Board meeting on the 5/12/91 and you were under an obligation to present to the Board the discrepancy between P50 million and P53 million. Please explain as to why an extra P3 million was claimed. You were under an obligation to explain the situation to the Board and to seek authorisation if satisfied as to why the amount has been increased. You neither raised with the Board the increase nor did you seek confirmation that the amount had been raised from P50 million to P53 million."

Respondents replies to the aforegoing reads thus
"2.1 CHARGE 1A

I deny that Annexure A was copied and received by me prior to December 1991 and accordingly put you to the proof thereof.

2.2 CHARGE 1R

The charges in respect of this paragraph bear no reference to me and accordingly put you to the proof thereof.

2.3 CHARGE 1C

? The contents of this charge are specifically-denied and I accordingly put you to the proof thereof.

2.4 CHARGE ID

I reiterate my contention in paragraph 2.1 above. However it is to be noted that in December 1991 the contract was indeed awarded to Spectra Botswana which would appear to refute this allegation in its entirety and I accordingly put you to the proof thereof.

2.5 CHARGE IE

Save to admit that I attended the Board meeting held on the 5th day of December 1991 no further issues were raised as alleged. The remaining contents of this charge are denied and I accordingly put you to the proof thereof. As stated above, I had no knowledge of the contents of this letter priror to that date.

"2. CONTRACTS FOR WHICH NO TENDERS WERE CALLED AND WHICH WERE NOT APPROVED BY THE TENDER COMMITTE

A. As a professional architect and as Deputy General Manager responsible for advising the Corporation on matters relating to procedures and practises, you are aware that contracts for which no tenders were called should not be considered and awarded. The tender committee should have been informed of this situation. There is a list of 60 contracts which were not taken to the Tender Committte for approval and which were awarded. A list of such contracts is annexed hereto marked ^XB'. An explanation is required in

16
respect of each contract setting out exactly:-

Why the contract was awarded;

Why the normal procedure was not followed and tenders were not called for;

Whether the committee was advised that there were contracts which had been awarded without going to tender and without its authorisation."

The contracts listed involved a total amount of over P117
million. Despite being asked to furnish an explanation,
respondent contented himself with the following reply:-
"CHARGE 2 A

All these contracts had been awarded by the late Mr. Letsholo prior to his accident and in terms of his authority. I do not consider myself to be liable in any manner of whatsoever nature in regard to the aforementioned contracts and accordingly put you to the proof thereof."

Charge 3 alleged that respondent had sold a motor vehicle
purchased with appellant's assistance without permission. Unlike
his responses to the charges mentioned, respondent dealt fully
and in detail with this allegation which he described as "an
alleged minor technical infringement of procedure" and as
constituting "blatant victimisation." I need not detail either

17
the' charge nor the reply.
Probably the most serious of the charges are those contained in paragraph 4. They are the following:
"4. FALSIFICATION OF FACTS ON A DOCTTMENT WITH INTENT TO DECEIVE

A. On 6/12/91 a cheque in an amount
of PI.5 million being cheque no.
007486 was issued to certain
Spectra Botswana (Pty) Ltd. The
cheque was duly signed by the
Deputy Chairman of the Board and
the General Manager. You were
aware that as the contract for
BHC Headquarters had only been
approved of by the Board on
5/12/91 and that the contract had
not as yet been signed, that work
could not have been executed as
to warrant payment in the sum of
the magnitude of PI.5 million.
You however, signed a certificate
authorising this payment. An
explanation is required.

B. On the 12/12/91 you, in
collaboration with the deceased
General Manager, Development
Manager (Mr. Sergeant) and the
Finance Manager (Mr. Collier),
signed a payment certificate
purporting to establish that work
had been executed on the project
as follows:-

valuation date 6/12/91
certificate date 7/12/91 date received by
Finance department 10/12/91
12/12/91
Date paid 12/12/91

Information is required in writing into what steps you took to ensure that this certificate was warranted and that the work had in fact been completed and to whose completion the work had been performed.

C. On the 12/12/91 cheque No. 007487 for an amount of P2.5 million was duly issued in favour of Spectra Botswana (Pty) Ltd. This cheque was signed by the Deputy Chairman of the Board and the General Manager. On the same day you in collaboration with Mr. Letsholo, Mr. Collier, the Finance Manager and Mr. Sergeant, the Development Manager jointly signed a payment certificate purporting to establish that work had been executed on the project as follows -. -

valuation date 12/12/91
certificate date 12/12/91
date received by Finance 12/12/91
department
date paid 12/12/91

Please explain what enquiries you made as to why this money was due and what steps you took in order to justify the payment certificate.

D. I need hardly remind you that the contract was only signed on the 12/12/91, the day on which you signed the payment certificate. An explanation is requested justifying the payment so authorised and verified by you."

The remainder of paragraph 4D asked respondent if representations
had been made to him by Spectra Botswana to justify the payment
and, if so, by whom. If no representations had been made
respondent was asked "why did you simply pay."

It will be seen that these are allegations of the most grave nature calling for detailed and full explanations from the one and only person who could give them. Instead of giving them, however, respondent chose to go on the attack against the Acting General Manager and to give a reply that can only be described as vague and obfuscatory. It reads as follows:-

"CHARGE 4 A

I concede the fact that this payment was authorised by the Board and the General Manager. However I deny the falsification and furthermore deny any intent on my part to deceive and accordingly once again put you to the proof thereof. I wish to further advise that you do not allege at any stage that the money was not due and payable which I consider to be most peculiar to say the least. Furthermore you will note that the account would appear to be for the amount of P4 million notwithstanding that the Financial Manager insisted on two separate payments being made in respect of this account.

CHARGE 4B

I emphatically deny that there was any collaboration in the criminal sense with those persons mentioned or any one else. This allegation constitutes no more than a "fishing expedition" on your part, the purpose of which is (sic) to continue in your endeavours to victimise me without any justifiable grounds to do so. Might I remind you that the burden of proof rests upon you to prove the allegations that have been made against me. My track record with BHC certainly speaks for itself in order to rebutt your allegations in this regard.

CHARGE! AC. AND T)

This charge would appear to be the same charge as that contained in 4A and B above as it relates to the same account and to which you are respectfully referred."

20
Cha'rges 5 and 6 respectively accused respondent in his position

as Deputy General Manager (Technical) of not putting into proper place procedures (a) in regard to tenders and contracts and (b) for the administration of the Development Department which fell under him. As to (a) respondent said that this was not part of his job description and as to (b) he said that the allegations were vague, unintelligible and not understood and he asked for further particulars in regard to them.

I return now to the issues raised in this appeal. It is common cause that apart from the letter of 1 June 1992 that I have quoted setting out the charges against respondent and his reply to them of 16 June 1992, nothing further occurred before the Board decided to dismiss respondent on 21 August 1992. Certainly no oral hearing was held. It is respondents' contention that in dismissing him in this manner without affording him an oral hearing, i.e. one at which witness are called to testify, cross-examination of them is permitted and the respondent is allowed to make oral representations appellant had acted in breach of the provisions of the Conditions of Service or, alternatively, contrary to the audi alteram partem principle. I shall deal with the Conditions of Service argument first.

21 Respondent's appointment as Deputy General Manager (Technical)
was obviously made by the Board. In the original Botswana
Housing Corporation Act, the appointment of senior officers was
laid down in Section 12(3) (b) . That section is repeated in
identical terms in Section 13(5) of the Botswana Housing
Corporation (Amendment) Act No 5 of 1994. Both the original and
the amending Acts provide that the General Manager of the
Corporation is appointed by the Board, with the approval of the
Minister of Housing. Section 12(3)(b) and Section 13(5) provide
that the appointment and dismissal of those members of the staff
as are designated by the Board to be senior officers shall be
effected by the Board upon consideration of the recommendations
of the General Manager. The appointment and dismissal of all
staff other than senior officers shall be effected by the General
Manager or by a senior officer selected and authorised by him for
that purpose (see Section 12(5)) of the original Act and Section
13(6) of the amending Act) . Even as a Senior officer he was
subject to the provisions of the Conditions of Service. The ones
germane to this appeal are Clause 15, 16 and 17 which of Service
deal with the conduct of employees and with disciplinary
procedures.
Clause 15 is headed "Conduct and Disciplinary Procedures" and

22
enjoins all employees to conduct themselves at all times in such
>?
manner as to preserve the good name of the Corporation and to
act with propriety and the highest degree of intergrity (Clause
15,.1). Disciplinary action may be taken and penalities imposed
for breaches of the Conditions of Service or for misconduct or
carelessness in the performance by an employee of his duties
(Clause 15.1.3). If the action of an employee warrants
I disciplinary action and is serious enough to warrant suspension
from duty pending an investigation the employee may be so
suspended forthwith "notwithstanding that procedures have not
been followed "(Clause 15.1.4). Clause 15.1.5 gives employees
in all disciplinary matters, the right of appeal in accordance
with the procedures laid down " including the right of appeal to
the General Manager, whose decision, except where provided for,
shall be final."

Clause 15 proceeds to record that the Corporation has appointed "managers and supervisors" to maintain discipline and ensure the well-being of their subordinates. Their duties and responsibilities are to ensure that disciplinary action is taken promptly for breaches of discipline and that any alleged offences are thoroughly, carefully and fairly investigated "and wherever possible settled at the level of the supervisors." More serious

". , 23

offences' are to be reported to the next senior official for appropriate action. Clause 15 also sets out in detail the duties, responsibilities and obligations of subordinates. I need not refer to them herein.

Clauses 16 and 17 are headed "Disciplinary Procedure" and "Disciplinary Procedure II", respectively and provide that in the event of the appellant taking disciplinary action against an employee it "shall be guided" by the procedures laid down in those Clauses.

It is convenient to refer first to Clause 17 because respondent's
counsel submitted that it applied to the respondent. Appellant's
counsel submitted on the contrary that it did not. It is a
lengthy clause and I need not refer to all its provisions in
v detail. Some are, however, relevant to the present appeal and w

I shall have to refer shortly to them. They set out what procedures a supervisor should follow when taking such disciplinary action against a subordinate as he is empowered to take by the terms of Clause 17. They provide for a written warning by a supervisor to a subordinate who has committed an offence. They also specify that before doing so, the supervisor must call the employee and give him details of the alleged

24
offence.' Clause 17.2.A.(ii) states in the second sentence that:-
"Wherever possible witnesses shall be called and the
employee should be given a chance to answer the

allegation, question any witnesses and call his or her
own witnesses."

A right of appeal to the Head of Department is provided for and
Clause 17.2.A(vi) enjoins the latter to convene "an Appeals
Hearing." He "shall also convene such a hearing in the event the
supervisor has reported a more serious offence." At such hearing
the employee "shall have the right to be represented, and may
call his/her own witnesses and question any witnesses", as
provided for in Clause 17.2.A(viii). A final appeal lies to the
general manager who may "convene a hearing and constitute a
Disciplinary Board to hear the appeal." Clause l7.2.A.(xii)
reads as follows:

"The decision of the General Manager shall be final
except where the decision affects an employee whose
appointment is subject to the approval of the Board.
If such an employee remains aggrieved by the decision
of the General Manager, the employee may appeal to the
Board "

It is my view that Clause 17 has no application to the respondent. It envisages the situation where a supervisor or next senior officer takes disciplinary action against a subordinate. It does not, in my opinion, apply to a senior officer. The provisions of Clause 17.2.A.(xii) quoted above are support for this view. Mr. Goodman submitted that respondent,

25 albeit a' Deputy General Manager and thus a senior officer, was
nevertheless a subordinate with a supervisor viz the General
Manager. I cannot agree with that. That, to my mind, would be
giving a completely artificial meaning to the concepts of
supervisor and subordinate. Moreover, those clauses providing
for reference to officers senior to the supervisor, to heads of
department the general provisions relating to verbal and written
warnings and the very minor penalties that Clause 17 empowers a
supervisor to impose all serve to negate any suggestion of a
supervisor - subordinate relationship in the case of the
respondent. I therefore hold that the provisions of Clause 17
have no application to the respondent.

Mr. Du Toit for the appellant conceded that the provisions of Clause 16 would be applicable in the case of disciplinary action against the respondent and that unless appellant, in terminating respondent's employment, followed the procedures laid down by them, the Court would be entitled to declare the dismissal a

nullity (see NATIONAL DEVELOPMENT BANK V BENEDICT KENQSI THOTHE (COURT OF APPEAL) CIVIL APPEAL 22 OF 1993) . Mr. Du Toi t

stressed, however, that the appellant only had to be "guided" by them. While therefore it could not disregard them, the application of them to each case was a flexible one. That

26
submission is, I think, correct. What then does Clause 16 say?

It reserves in the first instance to the appellant the right, where serious offences have been committed, to terminate an employee's employment, without any prior warning (Clause 16.1.3) . However, no employee shall be discharged without the proper disciplinary procedure having been followed. This shall occur only as a last resort and as a result of a serious offence and in terms of Clause 16.12. The latter which lays down the various disciplinary penalties that may be imposed on employees guilty of offences, provides that termination without notice for an offence warranting immediate dismissal can only be effected by the general manager or the staff Committee. Clauses 16.3, 16.6, and 16.7 are important and I quote them in full:-

"16.3 CHARGES TO BE MADE IN WRITING

Charges of any offence which involves disciplinary action with the exception of an offence for which the penalty is a verbal warning - shall be made in writing, clearly stating the nature of the offence, and inviting the employee to reply to the charge as stated. Disciplinary action will only be taken in respect of an offence for which an employee has been charged.