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Moruakgomo and Others v The Attorney General (Civil Appeal No. 24 of 1996) [1997] BWCA 28; [1997] B.L.R. 781 (CA) (25 July 1997)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Civil Appeal No. 24 of 1996 High Court Misc. A. 246 of 1995

In the matter of:
1st Appellant 2nd Appellant 3rd Appellant 4th Appellant 5th Appellant 6th Appellant 7th Appellant 8th Appellant 9th Appellant 10th Appellant llth Appellant
PETER MORUAKGOMO JUSTICE MODUKANELE MOTSEOTSILE BOTSOMA GABAUTLWE KENOSI KABELO KGOSIEMANG LUCAS MAFOSI JOSTUS PIOEMANG MOMPATI KANERR RADINAKEDI MARUPING MOLATLHEGI MOSES PULE MOSOTHWANE
and
Respondent
THE ATTORNEY GENERAL (Representing the Ministry of Works, Transport and Communications)
Adv. E. Khan and Mr. T. Joina for the
Appellants Mr. T. Moipolai and Ms. H. Mocuminyane
for the Respondent
JUDGMENT

Coram: Amissah, P.
Schreiner, J.A. Hoexter, J.A.
AMISSAH, P.
The first ten appellants applied by Notice of Motion to the
High Court for the following declaratory orders:
"1. Declaring that withholding commuted subsistence allowance from June 1989 to December 1993 of the 1st to the 6th Applicants based at Pioneer Border Gate Weighbridge and Ramatlabama Weighbridge Industrial workers of the Roads Department in the Ministry of Works, Transport and Communications was wrongful, unlawful and contrary to rules of natural justice.

2.
Declaring that withholding committed

2
subsistence allowance from June 1989 to date of the 7th to the 10 Applicant based at Tlokweng Weighbridge and Mobile Weighbridge industrial workers of the Roads Department in the Ministry of Works, Transport and Communications was wrongful, unlawful and contrary to rules of natural justice.
3. Declaring that commuted subsistence allowance of the Applicants stationed at Pioneer Border Gate, Ramatlabama Border Gate, Tlokweng Weighbridge and Mobile Weighbridge was wrongfully and unlawfully stopped in that it was stopped with (six) a person without authority and contrary to rules of natural justice."
The founding affidavit in support of the Motion was sworn
by first appellant, who claimed to have been working at the
Pioneer Gate Weighbridge. The nub of the appellants' complaint
appears in paragraphs 6, 7, 10 and 11 of that affidavit. They
state that:
"6. Since my employment in 1988, there has been subsistence allowance for field workers. This money is called commuted subsistence allowance. When I joined this department commuted subsistence allowance has been available to staff members. Generally it is paid for inconvenience suffered by field workers who have to be at the field at various times.
6.1    
The people (workers) who are involved are not entitled to transference and transport allowance, they can be moved from one place to the other without prior notice.
6.2    
Above other things it is known that these workers do not stay with their families.
6.3    
These workers are not provided with good accommodation and each is only entitled to P750.00 for

3
all these inconveniences; which is entitled commuted subsistence allowance.
6.4    
When it is raining they do not have good protection.
6.5    
The Weighbridge Staff in this matter are Night Watchman (sic) and Camp Keepers. The working hours differ as follows:-
6.5.1 Night Watchman from 6.00 p.m. to 6.00 a.m.

6.5.2

Camp Keeper from
6 .00
 a.m. to 4.30
p.m.
When commuted subsistence allowance was stopped in 1989, I and my colleagues were told that it was a temporary
suspension.
7.1      The said suspension however
did not affect the
Numerators, who are based in
the same situations. The
numerators, Night Watchman
(sic) , and Camp Keepers are workers who are called Industrial Class 1. The category of these Industrial Workers are entitled to commuted subsistence allowance.
7.2    
Subsequently, in October 1993 the relevant stations where the Weighbridge staff members are normally posted have been informed through a letter dated 29th October, 1993 that commuted subsistence allowance has been suspended (See annexure marked "Al", "A2", "A3" and "A4" hereto (sic)).
7.3    
I then challenged the authorities sometimes February 1994. Subsequently, the Respondent paid me and my colleagues

4
outstanding commuted subsistence allowance from December 1993. (See annexure "Bl" - "B7") . There are no reasons advanced as to why all outstanding payments were not paid.
7.4    
I verily believe that the said suspension is wrongful, unlawful and without just cause.
7.5    
I verily believe that the part payments of outstanding commuted allowance by the Respondent was wrongful and unjustifiable."

10.    
I must further state clearly that any attempt to reduce and/or stop subsistence allowance, without first giving each of us a hearing is unfair, unjust and contrary to rules of natural justice. In so far as each of us was not given a hearing, the said attempt to stop paying our subsistence allowance was unlawful.
11.    
I must further state that any attempt to make part payment without valid reasons advanced to me and my colleagues; above all failure to give me and my colleagues a hearing is unfair and without just cause."
To this Notice of Motion and its supporting founding affidavit the respondent filed a Notice of Opposition, but otherwise filed no affidavit in opposition on the facts. This may be taken as an implied admission by the respondent of the facts, though not necessarily the inferences or conclusions drawn from those facts which were alleged in the founding affidavit.
Thereafter the appellants filed an Amended Notice of Motion, naming the original applicants, who are the first ten appellants, and adding the name of the eleventh appellant as an applicant in
the title of the document. Apart from that addition, the

5 requests for declarations remained without change. They continued to refer only to the ten original applicants. The point was not taken by the respondent; but the Amended Notice of Motion did not, as a result of the omission, request a declaratory order with respect to the eleventh applicant. It is true that the first appellant once more swore a supplementary affidavit which said that the eleventh appellant was a Camp Keeper based at Pilane Weighbridge and was also affected as a member of the Weighbridge Staff. This, however, did not alter the position that in the body of the Amended Notice of Motion where the requests for relief were made in respect of each of the first ten appellants, no mention was ever made of the eleventh appellant. I mention this because it is one of several examples of the sloppiness with which the case of the appellants was presented before the High Court.
Other examples include the fact that no allegation was made in the affidavits as to the time when each of the applicants, other than the first applicant who swore to the founding affidavit, and its supplementary, was employed by the respondent. This meant that in this application, there was no evidence supporting the entitlement of the ten other applicants to the declarations which they sought for the period of their alleged entitlement. Further, the founding affidavit as supplemented, which claimed that the suspension of the commuted subsistence allowance dated from June 1989, had attached to it, without explanation, an annexure (described as "Al") in the form of a letter dated 29 October 1993 addressed to "All Weighbridge Staff" confirming that the payment of commuted subsistence allowances

6
had been suspended from 14th December 1993. The obvious question
which that unexplained annexure raises is, if the suspension
complained of was of a continuous nature dating from June 1989,
why was there need to suspend already suspended workers from
December 1993?
The respondent, however, ignored all these infelicities.
As stated earlier, he filed no affidavit on the facts. He rested
his whole case on a point taken in limine:
"1. That review proceedings should be brought within a reasonable time and in the present case the Applicants seek to review a decision that was taken in 1989 .
2. That such lapse of time be held to be unreasonable."
The appellants' notice in reply to the point was
"1. The Respondent waived its right to raise the points in limine in that sometimes (sic) in December 1994 the Applicants were paid outstanding commuted subsistence allowance from December 1993. No explanation was given why payment was from December 1993 .
1.1 The 10th Applicant, Molatlhegi Moses' commuted subsistence allowance remains unpaid, however, it would be an absurdity if he is not paid his commuted subsistence allowance like other employees of the Respondent in the same position as him.
2. The Respondent is estopped in law in raising the points in limine that it waived its right, more so that after making part payment of the outstanding commuted subsistence allowance it resumed continuous payments of subsistence allowance.
2.1 The Applicants' application

7
is dated 25th July 1995 only five months after the first payment of outstanding allowance was made."
The case came up for hearing before Nganunu, J. From the
judgment, it appears that both parties agreed that the decision
on the point in limine would determine their fortunes; if the
respondent lost then he would pay up the demands of the
applicants from 1989. On the other hand, if the appellants lost,
that was the end of their application. Thus the learned judge
said:
"        the parties have agreed and told the
court that the Ruling of the court on the point in limine will result either in the applicants' recognising that they have no right to make further applications on the matter, or alternatively, if the Ruling is the other way round the respondent will agree to make payment of the allowances concerned."
Then the learned judge proceeded to define the scope of the
point raised in limine in this manner:
"The point raised in limine amounted to the argument that as the stoppage of payment of the commuted subsistence allowance was effected in June 1989, the applicants delayed too long before approaching any court for redress, and the delay should be regarded as unreasonable and this application should not be entertained. The response of the applicants to this argument has been that even if the argument holds water, the respondent waived its right to raise this argument or alternatively the respondent is estopped from raising the argument by reason of the fact that during December 1994 the respondent decided to pay subsistence allowance to 10 of the applicants involved herein, making such payments retroactively to December 1993 and has subsequently continued to pay such allowance on a monthly basis."
In fact the evidence supporting the payments, in the form

8 of vouchers attached to the founding affidavit as annexures Bl -7, shows that the payment was backdated to January 1994 not to December 1993. But that, in my view, does not make much difference to the principles involved in deciding the issue of delay. Although it may help in some small measure in deciding the legal entitlement of the appellants to the payment of the arrears they claim.
As the learned judge aptly stated, "The point is a short and crisp one." In the event, he decided it in favour of the respondent. According to the agreement of the parties, that decision meant the dismissal of the applicants' application for the declarations sought. It is from that crucial decision on the point in limine that the appellants have appealed.
The argument of Mr. Khan, who did not appear in the court a quo, for the appellants, amounted to a shift from an application attacking the decision to suspend the payments to the appellants in 1989 to an attack on an alleged decision in 1994, when the payments were resumed, not to backdate the arrears to 1989 but to January 1994. According to that argument, at that time in December 1994 when the vouchers for the back payment were prepared a decision to withhold payment of the entitlement of the appellants from the date the original suspension took place in June 1989 to December 1993, was taken. And it is that decision which was and is unlawful and contrary to the rules of natural justice. If that argument is right, then it follows that time for taking action did not start to run against the appellants from June 1989 but from December 1994. Notice of intention to issue proceedings against Government in this matter was given to

9
the respondent on 13th January 1995 and the proceedings were in
fact instituted in July 1995. If there has been any delay at all
for the consideration of the Court it is a delay from January to
July 1995 and not from June 1989 to August 1995. On that basis
the time lapse was not unreasonable.
That, however, is an entirely new case. It was not the case
fought in the Court a quo. It does not conform to the
declarations sought or the subsequent papers like the notice of
the objection in limine and the response to that objection. If
the case of the appellants was that their complaint was over a
decision taken in 1994 and not in 1989, the natural and expected
response to the objection in limine which was based on a
proposition that seeking to review a decision that was taken in
1989 was unreasonable, would have been different. It would have
been that the decision complained of was not in 1989 but in 1994.
That response was not given. Instead the response was that the
respondent waived his right to raise the objection to the
proceedings by an act taken by him in 1994. Or in the
alternative the respondent was estopped from raising objection
in limine to the 1989 decision because of the action taken in
1994. That argument is also contrary to the statement by the
learned judge a quo, recited earlier, of the issue which was left
by the parties to him to decide. On that issue the judge decided
that:
"In the present case, the alleged infringement of the applicants' right occurred in June 19 8 9 and there was no notice by these applicants to the respondent of their intention to challenge the respondents' action in stopping payment of the allowance. The applicants sat back without doing anything until July 1995 i.e.

10 a period of over 6 years."
Of the ten grounds of appeal filed, not one complained of the learned judge's finding that the infringement of the applicants' rights occurred in June 1989. What they complained of, was that the learned judgment erred in holding that the conduct of the respondent to pay commuted allowances from January 1994 did not amount to a waiver of the respondents' right to raise the defence of unreasonable delay. They further complained in their grounds of appeal that the learned judge erred in holding that the unreasonable delay to launch the application had not been excused by the respondent by any waiver or estoppel or election. What these complaints show is an implied acceptance of the judge's finding that the rights of the appellants infringed occurred in June 1989. It is, therefore, from that date that any delay must be calculated.
There is no doubt that the first complaint by the appellants of the 1989 decision took place in 1995. As the learned judge found, for six years they sat back and did nothing. Now Counsel for the appellants makes the submission to this Court for the first time that the decision brought up for review was not the 1989 decision but a 1994 decision. I think that is unacceptable. No 1994 decision was brought to the notice of the respondent or the Court a quo as the basis of this review.
The case of Sarah Mmoniemang Mothusi vs The Attorney General
(Civil Appeal No. 15/93) gave this an opportunity to consider the
question of delay with respect to judicial review cases.
Speaking for the Court, I then said:
"The point is clearly there made that from the nature of the rights and interests that

11
require protection by the intervention of the courts by judicial review, an application for that remedy must be promptly made. To add to the urgency that this type of proceedings demands, the English rule further states that in any event this time period should not exceed three months,
unless the court considers otherwise    
Now these United Kingdom statutory
provisions do not bind us in Botswana. But
they show that proceedings for judicial
review are of such a nature that they
require prompt actions from the time the
cause for complaint arises, if the applicant
is not to run the risk of losing his
entitlement to redress. That is the first
rule which we should observe in this country
on the time limit for the commencement of
proceedings for judicial review 
The manner in which our local case of Makgoeng vs Attorney General [1987]B.LR 518 was disposed of is illustrative of the need for urgency in dealing with these matters."
But the mere fact of delay does not necessarily conclude the
question whether an application for review should be allowed to
proceed. There may be reasons justifying the delay which may
persuade a court to condone it. Thus in the Mothusi Case, this
court said:
"As is usually the case, it is impossible to anticipate or to enumerate all the factors which a court must take into account in deciding whether or not to condone a delay in the application for a judicial review; and the factors, no doubt, would very from case to case. But generally, there must be some good reason for the court extending the time for the application. In determining such reason, of course, the conduct of the applicant is always important. It is also relevant if the matters raised by the application are of general importance, and no previous authority governing them exists. Further, even where the lapse of time is prolonged, the fact that the alleged unlawful act or policy is still in the course of implementation may save the applicants' request from rejection. On the other hand, prejudice which might be caused not only to the respondent but to other

12
persons or a detriment to good administration, would adversely affect the applicants' chances. All these are relevant factors, where they appear, and have to be weighed together, the outcome of the exercise depending on the preponderance of the applicable considerations in the particular case."
See also the South African case of Harnaker vs Minister of Inderior 1965 (1) S.A.L.R. 372.
The applicant who has delayed in bringing his application
must give good reasons for his delay. In this case, the learned
judge found that:
"There was no reasons whatsoever given for this inordinate delay and inaction on the part of the Applicant (sic) . I do not have any reason whatsoever to condone their unreasonable delay."
The justification for the delay argued before the High Court
was waiver or estoppel. In this Court, Counsel conceded that
estoppel did not apply. We need say no more about that. As to
waiver with respect to the objection in limine, this must mean
an express or implied abandonment of the right by the respondent
to raise the point of the applicants' delay in bringing the
review proceedings. As stated in Stroud Judicial Dictionary (5th
edition):
"Waiver is express, or implied; express, when the person entitled to anything expressly and in terms gives it up, in which case it nearly resembles a release (see Stackhouse v Bainston 10 Ves. 466); implied, when the person entitled to anything does or acquiesces (see ACQUIESCENCE) in something else which is inconsistent with that to which he is so entitled."
See also the South African cases of Laws v Rutherford 1924
AD 261 at page 263 and Hepner v Roodeport-Maraisburcr Town Council
1962(4) S.A.L.R. 772 at page 778.

13 What evidence is there that the respondent either expressly or impliedly waived his right to raise the point of undue delay in the applicants' launch of the review proceedings. At best the evidence of back payment of the commuted subsistence allowance in December 1994 to cover the period January to November 1994 may be an acknowledgement that the respondent owed the applicants some money for that period. It may even be an acknowledgement that he owes money over a longer period. But the payment is equivocal in this respect. The payment could be interpreted as ex gratia. No obligation lying on the respondent to pay any allowances prior to the resumption date in December 1994 was shown by the applicants. And the fact that the allowances paid were dated back for eleven months and not even for the twelve months for which the suspension notified in the letter of 29 October 1993 had lasted, is some indication that the respondent was paying those allowances, not by reference to any specific dates for which he accepted liability, but on an ex gratia the basis of what he thought he could afford to pay. Indeed, Counsel for the appellants conceded that if the resumption of the payment of subsistence allowance had been made only prospectively and no allowance had been paid retrospectively, the applicants would have made no complaint. What the payment cannot, to my thinking, be taken to signify, in the circumstances, however, is an abandonment by the respondent of a right to raise in 1995 an objection to review proceedings brought then with respect to a decision taken in 1989 on the ground of unreasonable delay. I am, therefore, satisfied, as indeed the learned judge in the Court a quo was, that the respondent had made no such waiver.

14 I think this appeal should be dismissed with costs
DELIVERED IN OPEN COURT AT LOBATSE THIS 25th DAY 0F JULY 1997
A.N.E. AMISSAH President of the Court of Appeal

I agree
W.H.R. SCHREINER Judge of Appeal


I agree
G.G. HOEXTER Judge of Appeal

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