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Masimolole v The Attorney General and Another (Civil Appeal No. 47 of 1996) [1997] BWCA 16; [1997] B.L.R. 142 (CA) (28 January 1997)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Civil Appeal No. 47 of 1996 High Court Misca No 417 of 1995
In the matter between:
MMAPTTSO MASIMOLOLE      Appellant
and
1st Respondent 2nd Respondent
ATTORNEY GENERAL KWENENG LAND BOARD
T. Joina for the Appellant
M. diamine for the 1st Respondent
JUDGMENT
CORAM: Amissah, P.
Lord Cowie, JA. Lord Allan bridge, JA.
AMISSAH.P:
The complaint of Mmapitso Masimolole, the appellant, is that she was dismissed by the Minister of Local Government, Lands and Housing from her position as a member of the Mogoditshane Subordinate Land Board to which she had been lawfully appointed, without just cause and without being given a fair hearing. The appellant brought this complaint by Notice of Motion before the High Court asking for a declaration of her rights and consequential relief from the wrong that she had suffered. She failed to get satisfaction from the High Court. She has, therefore, appealed to this Court for us to say that the learned judge below erred in his decision.
It is common cause that the appellant was appointed a member of the Mogoditshane Sub-Land Board on 19 December 1994 following elections held at Mogoditshane Kgotla. The Mogoditshane Sub-Land Board is a statutory Board constituted under the Tribal Land Act (Cap.

2
32:02) to administer the land in the Mogoditshane area as defined by the Act. The Sub-Land
Board performs its functions subject to the Kweneng Land Board, the 2nd appellant, which is in
overall charge of land in the Kweneng District. It is also common cause that after her election she
received a letter dated 19 December 1994 signed by the Minister of Local Government, Lands and
Housing, Mr. P. Balopi, appointing her to the Mogoditshane Sub-Land Board. She started work
immediately as a Board member. But a few months later, she received another letter dated 19
April 1995 signed by Mrs. M. N. Nasha, Assistant Minister of Local Government, Lands and
Housing, to the effect that it had been decided that the appellant's appointment as a member of
the Mogoditshane Sub-Land Board "shall terminate with effect from 21st April, 1995." It is the
appellant's case that the decision was wrongful without just cause and made without giving her
a fair hearing. The 1st respondent, on the other hand, contends that the decision was lawful and
that the appellant, far from being dismissed without a fair hearing, was given an opportunity on
two occasions to make representations before the decision was taken.
The other matters leading to the decision to terminate the appellant's appointment were
in some respects in dispute. The problem arises from the interpretation of the rules in the Tribal
Land (Amendment of Schedule) Order, 1994 [Statutory Instrument 63 of 1994] which deals with
the educational qualification required for the selection of the members of the Sub-Land Board.
The provision in question is the substitution made by the amendment order to the First Schedule
to the Tribal Land Act. Paragraph 3(f) of the substituted procedure for the election of members
of land Boards reads as follows:
"3. The procedure for the election of members of land boards for the purpose of paragraph 1(a) [which designates 5 members to be selected and appointed in accordance with paragraph 3 to hold office for 4 years] shall be as follows -
(f) in making appointments preference shall be given to persons of or over 21 years and in good physical

3
condition, and who hold at least Junior Certificates, though other candidates with special qualifications may also be considered;
The appellant was over 21 years and apparently in good physical condition. But she did not hold
a Junior Certificate. She admits that after her election at the kgotla, she was sent a form to fill.
In answer to the request for a statement of her "educational qualifications" she wrote "Std. VI 6,"
which gave the impression that she held a standard 6 certificate. I do not know, and there is no
evidence on the point, whether a standard 6 certificate is equivalent to a Junior Certificate. But
it seems to have been generally accepted that had she had a standard 6 certificate together with
the documents she attached to her form she would have been taken to have met the standard of
a Junior Certificate or other special qualification stated in the Schedule. The appellant, however,
did not hold a standard 6 certificate or any certificate showing that she had completed her
education in that fomz She dealt with the educational point in her founding affidavit in this
manner:
"12. I hold no specific academic certificate but my experience and work training as shown above are equivalent to Standard Seven and slightly above. I am able to read and write Setswana and English to some extent. I achieved Standard Six at Mogoditshane Primary School in 1969. Considering that and my work experience, surely I am qualified. Besides, there is no requirement that one should hold a specific academic certificate for him to be admitted to the Land Board."
My understanding of this averment is that she holds no certificate, but she commenced standard
six at school and her work experience and work training is in her opinion equivalent to at least
standard seven. The 1st respondent denies her claim.
In support of her claim to special qualifications within the meaning of the provision, the
appellant said in paragraph 7 of her founding affidavit that she "furnished the Land Board with
certificates of experience and qualifications." These were:

4
(a)      A letter from Thusang Basadi where she claimed to have
been teaching women on business matters.
The letter was exhibited as part of the founding affidavit. It is dated 15 November, 1994, signed
by the General Manager of Thusang Basadi and what it says is as follows:
'To whom fr may concern
This is to certify that Mrs. Mmapitso Masimolole has been an active member of Women's Finance House Botswana since 1992. Her character is good and is very co-operative. We have no hesitation in recommending her for any suitable job (sic)."
 (b)    
A baptism certificate from the General Apostolic Church
(c)    
A letter from Kweneng District Council where she said she served at Mogoditshane Clinic as a member of the Health Committee.
That letter dated 16 November 1994 was all in the hand-writing of one W. Moronkwe who gave
her address as Mogoditshane Clinic, Molepolole. There is also a stamp of Mogoditshane Clinic
on it. It does not, however, say what office, if any, W. Moronkwe held in the Clinic. That letter
says:
'Tp whom it may concern Re Mmapitso Masimolole
I have known Mrs. Masimolole as an active U.H.C. member in seminars in 1984/1985 while I was working at Gaborone Clinic. I would not hesitate to recommend her any duty.(sic)
Thank you"
(d)      A certificate from Women's Finance House Botswana where the
appellant said she attended a course in business management and
other related matters.
Such a certificate was annexed to the founding affidavit. The course had, according to the
certificate, lasted from 17 to 19 November 1992.
Apart from the baptism certificate and the certificate of attendance of the three-day

5 course, taking the dates given as inclusive, the two other references were obviously obtained by the appellant for the purpose of her appointment to the Sub-Land Board. It will be recalled that the kgotla election was on 12 November 1994. The Thusang Basadi reference is dated 15 November, 1994 and the reference from the person giving the address of Mogoditshane Clinic was on 16 November, 1994. I make mention of these dates not to show that there is anything wrong in securing references for the purpose of establishing special qualifications with respect to a particular appointment, but to show that the appellant herself must have realised that establishing the fact of special qualifications gave some advantage in the consideration of the appointing authority for the particular appointment.
The learned trial judge took the view that these documents attached to the appellant's founding affidavit in themselves were of no use in establishing special qualifications which could be considered by the appointing authority in lieu of the Junior Certificate, "since the first three are no more than references of her bona fides by people who know her and Annexure 'D' [i.e. the certificate of attendance of the three-day course] is of doubtful significance." Looked at by themselves, it is difficult to disagree with the learned judge's view of this matter.
As stated earlier, after the elections at the kgotla the appellant received a letter from the Minister of Local Government, Lands and Housing, that she had been appointed to the Mogoditshane Sub-Land Board. The appointment was for a period of 4 years. Her own founding affidavit gave the information that not all who were elected by the kgotla were appointed by the Minister, thus indicating that there had been a selection process undertaken by the Minister for the appointments made after the election.
Minutes of a meeting held in the Deputy Board Secretary's office on 27 February, 1995 which the appellant attended show that on that day there was an enquiry into her educational qualifications. It was put to the appellant at that meeting that following the election she had

6 stated that she had done standard 6 and had promised to produce her certificate but had so far not done so. She was asked when she would produce the certificate. At the meeting she admitted that she did not complete her standard 6. She had therefore, obviously misrepresented her educational qualification in her answer stated in the form. In a selection process for appointment which required her qualifications to be compared with those of other elected candidates, this misrepresentation was of some fundamental importance.
On 27 March, 1995 the appellant met the Assistant Minister of Local Government, Land and Housing, Mrs. Nasha, who told her that she, the appellant, did not have the qualifications for appointment to the Board. Upon the appellant's admission that this was correct, the Assistant Minister told her that she could not continue on the Board. According to the Assistant Minister, the appellant appealed through her to the Minister, who after considering all the facts decided to turn down the appeal. Thereafter, the Assistant Minister wrote to the appellant on 21 April 1995 terminating the appellant's appointment to the Board.
The motion which the appellant brought before the High Court asked for a declaration that the termination of her appointment was wrongful, unfair, unlawful and without just cause and that it did not follow the rules of natural justice. It also asked for a further declaration that the appellant continued to be a member of the Mogoditshane Sub-Land Board.
The complaint about a fair hearing was considered by the learned judge, who said:
"It will be seen therefore that there was a process of hearing which was staggered from junior authority to senior authority and that at each level the applicant was given a fair opportunity and for that matter a meaningful opportunity to put her views with regard to the complaint. This to me suffices in a case such as the present one where there has not been any procedure laid for dismissing a member of the Land Board. The requirement of natural justice to hear the other side before taking a decision prejudicial to that party's interest where there is no specific procedure laid, is satisfied where the party concerned is told of the complaint, asked to present any views or comments it may have and such views and comments are genuinely considered before the decision is

7 made."
I agree with the learned judge that in cases like this, what the audi alteram partem rule involves is to bring home to the affected party the substance of the complaint against him, to afford him an opportunity of giving his explanation by way, for example, of representations, and genuinely taking the explanation into account in arriving at the decision. It is true that in some cases giving a hearing to a person likely to be adversely affected by a decision means following a particular procedure. Often this requirement is laid down by statute or some rule or regulation. In the absence of such statutory or regulatory requirements how a hearing is given to an affected party depends on the circumstances. To my mind the basic tenets of natural justice are satisfied in these cases if the elements of a hearing as identified by the learned judge a quo are complied with. Often the person who has to make the decision is the same person who gives notice to the affected person of the complaint against him. To require in every case that the exercise of a discretionary power by a person in authority in a public office adversely affecting another must be preceded by a fully fledged tribunal with the panoply of the preferment of charges the calling of witnesses and cross-examination by the affected person is in my view, to demand the impossible. Public administration would be brought to a halt and the very idea of giving a hearing to the other side would be brought into disrepute.
Before us, an additional submission on the giving of a hearing was made. It was that a fair
hearing required that the person who heard or dealt with the explanation must be the same as the
person who made the decision, and that in this case, if there was any hearing, the person who gave
it was not the person who made the decision. In this regard Counsel for the appellant referred to
the passage in the judgment of the learned judge a quo that:
"....there was a process of hearing which was staggered from junior authority to senior authority and that at each level the applicant was given a fair opportunity and for that matter a meaningful opportunity to put her

8 views with regard to the complaint."
Far from the assurance that this statement should give on the issue of a fair hearing, Counsel submitted that it rather showed that the learned judge must have accepted that the hearing was split between different persons and that the decision to terminate the appellant's appointment was taken by the Minister himself who had not actually heard the appellant.
The facts are, as I have already pointed, that the appellant was given an opportunity to explain the misrepresentation of her educational qualification at a meeting at the Deputy Land Board Secretary's office. At that meeting the appellant was unable to provide proof of her claim that she had done standard 6 at school. The appellant then later appeared before the Assistant Minister, who after hearing her, decided that she could not continue as a member of the Sub-Land Board. It was the Assistant Minister who wrote to her that her appointment had been terminated. On these facts I think the learned judge was entitled to say that there was a process of hearing which was staggered from junior authority to senior authority. There were in fact two interviews at different levels given to the appellant at which she gave an explanation, and the decision was taken after those interviews. The appellant, however, relies on a statement in the Assistant Minister's answering affidavit that after informing her that she could not in the circumstances continue her membership of the Sub-land Board, the appellant appealed through the Assistant Minister to the Minister, who after considering all the facts decided to turn down the appeal, as substantiation of the fact that it was the Minister and not the Assistant Minister who decided to terminate her appointment. According to the submission of the appellant, as the Minister had not heard the appellant, his decision had been taken without giving her a hearing.
In my opinion, the obligation to give a fair hearing cannot be said to have been discharged only when every person in a Government Ministry or Department who has to deal with a matter,

9 involving the exercise of a discretion actually sees and physically hears the explanation of the person affected. The appellant had been given an opportunity on two occasions to make her representations on the matter. Unless the case she wanted us to accept was that she was going to change her story before the Minister, there was no reason for the Minister to hear the same story again. As we have seen from the record, the appellant's explanation which was first given to the meeting at the office of the Deputy Board Secretary, was put down in writing. The Assistant Minister said in her affidavit that the Minister, before rejecting the appellant's appeal, had considered all the facts of the case. Even if the Minister had been the person who had taken the decision to terminate the appellant's appointment, I would not have acceded to the argument that he had a duty to personally see and hear the appellant. In this case, however, the decision was taken by the Assistant Minister, who obviously was exercising powers conferred upon the Minister. Paragraph 3 (e) of the First Schedule to the Tribal Land Act, as amended, shows that the appointment of the members of the Land Boards is made by the Minister. As the legal position is that the person with power to appoint is the person who has the corollary power to dismiss, it is the Minister upon whom the power to dismiss devolves. This Court in Students Representative Council of The Molepolole College of Education and Another v. Attorney General (CA.Civil Appeal No. 34/95 judgment delivered on 5 February 1996) cited with approval the opinion of Lord Greene M.R. in the English Court of Appeal decision in Carltona Ltd. V. Commissioner of Works [1943] 2 All ER 560 at page 563 which showed that in the particular context of government, the functions given to a Minister are so multifarious that no Minister could ever personally attend to them. "The duties imposed upon Ministers are normally exercised under the authority of the Ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is... the decision of the Minister." The sanction for the improper or incompetent performance of

10 these duties is that the Minister is answerable to Parhament. In constitutional terms, the exercise of the power of termination of the appellant's appointment to the Sub-Land Board by the Assistant Minister, is the exercise of the power by the Minister, and he is answerable in Parliament for it. I therefore, see nothing wrong with the Assistant Minister exercising the powers of the Minister on the Minister's behalf. The confirmation of her decision by the Minister after review of the facts merely showed that the Minister agreed with her.
There being no obligation on the Minister in this case to personally interview the appellant and with the appellant's explanation given not once but, on two different occasions I think that the appellant's contention on this point is untenable.
There is one other matter which I should advert to. That involves the status of the
educational test in the selection process for appointments to Land Boards. As pointed out
earlier, paragraph 3(f) of the First Schedule to the Tribal Land Act provides that "in making
appointments preference shall be given to persons of, or over 21 years and in good physical
condition, and who hold at least Junior Certificates, though other candidates with special
qualifications may also be considered." The learned judge a quo in considering this provision
made the following pronouncements;
"People with at least Junior Certificate or special qualifications that can be considered, will be given preference in appointments, if they are over the age of 21 years and in good physical condition. In short people of the age of or over 21 and in good physical condition will be preferred to those without those attributes provided they qualify academically by holding at least a Junior Certificate or having specialised qualifications that in the opinion of the appointing authority may be considered."
Then upon applying the criteria to the appellant's case he came to this conclusion:
"...it is clear that the applicant does not have a Junior Certificate and under the circumstances of the case she did not even have Standard VI which she alleged at the time to have got ...On my view of the interpretation of the Act therefore, the applicant did not meet the required minimum academic qualification and could not have been validly appointed by the Minister to

11
a position of membership of the relevant Sub-Land Board." These pronouncements appear contradictory. The first pronouncement indicates that the learned judge appreciated that possession of the Junior Certificate or other special qualifications entitled the holder to no more than a preference over those who did not have either of those qualifications. But the second pronouncement appears to hold that the Junior Certificate or other special qualification established a minimum standard of education which all appointees must have. That means that no person without such certificate or qualification can legally be appointed to a Board. It is my opinion that the statute provides no minimum standard. It does not say that no person can be appointed to a Board unless he has a Junior Certificate or other special qualifications. All it says is that persons who possess these qualifications should be given preference. In so far as the judgment gives the impression that a minimum standard is prescribed by paragraph 3(f) of the First Schedule to the Act, I think that impression is erroneous. The appointing authority should not act as if it had to appoint only persons with a stated minimum educational standard.
But that does not enure to the benefit of the appellant in this case. The statute requires, a comparison of the qualifications of the candidates for appointment selected by selection at the kgotla. In order to do this properly, the candidates must give accurate information of their qualifications otherwise the appointing process would be put out of proper balance.. The efforts the appellant made to bolster her claim to having done Standard VI showed that she was aware how important the question of qualification or lack of it was in the process. She gave false information. As a result the ensuing comparison was distorted. I do not think she is entitled to come to us now to claim that because the judge wrongly took the view that the statute prescribed a minimum standard, she should be allowed to remain, on the Sub-Land Board.
I think her appeal should be dismissed.


12
day of January, 1997.
Delivered in open Court at Lobatse this 28th

A. N. E. AMISSAH
President

I agree
LORD COWIE
Judge of Appeal


I agree
LORD ALLANBRIDGE Judge of Appeal

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