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Selerio and Others v The Attorney General (Civil Appeal No. 38 of 1996) [1997] BWCA 29; [1997] B.L.R. 789 (CA) (25 July 1997)
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IN THE COURT OF APPEAL OF BOTSWANA
HELD IN LOBATSE
Civil Appeal No. 38 of 1996 High Court Misc. A. 313 of 1995
In the matter of:
SENIOR EDUCATION OFFICERS per
1st Appellant 2nd Appellant 3rd Appellant 4th Appellant Appellants
LEBORO SELERIO
MODISAOTSILE HULELA
HANISO MOTLHABANE
TINY MASOLOKO
and TWENTY SIX OTHERS
and
THE ATTORNEY GENERAL
Respondent
Mr. T. Joina for the Appellant Mrs. 0. Sekgoma for the Respondent
JUDGMENT
Coram: A.N.E. Amissah, J.P. J.H. Steyn, J.A. W.I.S. Allanbridge, J.A.
ALLANBRIDGE, J.A.:
This case commenced on 7 July 1995 by Notice of Motion on behalf of the Appellants in which they sought relief by way of declaration
inter alia that the Government "ought to grade and remunerate them at a level above the headmasters whom they supervise."
The matter was heard in the High Court at Lobatse on 26 September 1996 and on that date the Judge a quo dismissed the application
with costs to the Respondent. It is against that Ruling that the Appellants came to this Court on appeal and on 15 July 1997 the
appeal was heard.
This dispute between the parties has quite a long history. On 9 July 1992 His Excellency, the President, appointed a Commission on
the Review of Public Service Salaries and
2
Conditions of Services 1992. It was the sixth such representative Commission since independence. The last Salaries Commission was
in 1985 and its recommendations were implemented in 1986, as explained in the Introduction to this most recent Report which was presented
to the President on 16 October 1992. There are three important sub-paragraphs in that Report which relate to the present case and
read as follows:-"(b) Ministry of Education
18.7
The Commission received widespread representations regarding the relationship between Education Officers and Headteachers of primary
schools on the one hand, and Senior Education Officers, Regional Education Officers and Headmasters of secondary schools on the other.
In both cases the contention was that Education Officers have supervisory responsibility over Headmasters. However, it was brought
to the attention of the Commission that despite such supervisory responsibilities the Education Officers and the Headmasters were
lumped together on the same salary scale. For example, Headmasters of secondary schools (Groups 1 and 2) and Regional Education Officers
are on salary scales D.3 whilst Education Officers and the Headteachers of primary schools are on C.l salary scale.
18.8
Whilst it was submitted that Regional Education Officers and Education Officers for primary schools supervise Headteachers in their
regions, it was evident the Senior Education Officers for secondary schools were field staff who are subject specialists. (my underlining)
18.9
Evidence adduced in respect of the Education Officers and the Headteachers for primary schools supports the view that the Regional
Education Officers supervise Headmasters at secondary school level whilst Education Officers for primary schools supervise headteachers
in those schools. The
3
Commission recommends that Education Officers should be remunerated at a level above the Headmasters whom they supervise.
Among the representations referred to in the first line of
sub-paragraph 18.7 supra was a Submission by the Senior Education
Officer. Secondary Department, Ministry of Education. A copy
of this Submission was filed by the Appellants and is in the
Record as document F. It is undated but the main theme is
contained in the first recommendation at page 6, which reads:
"Senior Education Officers/School Inspectors (Secondary) shall be graded above all headmasters. They should be graded on D.3
starting a notch above that of headmasters on D.3 scale."
On 18 December 1992 the Directorate of Public Service
Management issued Directive No. 21 of 1992 making the following
amendment to said sub-paragraph 18.9 as follows:
"Recommendation reads
18.9 Education officers should be remunerated at a level above the headmasters whom they supervise.
Amended to read
Education officers should be remunerated at a grade above the headmasters whom they supervise."
On 19 January 1993, the representatives of the Senior
Education Officers, who included the first-named Appellant, held
a meeting in the office of the Permanent Secretary to the
Ministry of Education, with that Permanent Secretary and three
other Senior Education Officers. The Minutes of that Meeting are
in the Record as document L. They disclose that there was a
difference of opinion between those present as to whether said
recommendation 18.9 did or did not include Senior Education
4 Officers. Finally, after two savingrams had been sent on behalf of the Appellants to the Permanent Secretary to the President, that
Permanent Secretary sent a savingram to them, dated 5 July 1993. This is document M in the Record. It states that "this Office
is in complete agreement" with the current interpretation by the Director of Public Service Management as stated in his savingram
of 19 April 1993 to the Appellants. This interpretation was against the Appellants' contentions. The Permanent Secretary concluded
by stating that his Office holds to this interpretation as being the applicable rule based on the decision of Cabinet following its
consideration of the recommendations of the Salaries Review Commission Report.
On 7 July 1995 the Senior Education Officers held a meeting in Gaborone. The Minutes of that meeting, which is document A in the Record,
show that those present resolved to proceed against the Ministry of Education and that attorneys should be retained for that purpose.
As I have already indicated, the Attorney for the Appellants signed a Notice of Motion on 7 July 1995 and it was filed on 28 August
1995 and this case duly proceeded. The first-named Appellant filed a founding affidavit which fully detailed their contentions.
Having briefly outlined the background to this case I now turn to the arguments of Mr. Joina on behalf of the Appellants. He said
that in the first place, the Presidential Commission had made a recommendation to the Government regarding the Appellants which was
accepted by the Minister but nevertheless the Appellants had been excluded from certain payments at a higher level than headmasters
although they did supervise them. In the
5 second place he said that if the Appellants were excluded from the recommendation this was an unfair labour practice as they did
in fact supervise the headmasters.
At this stage it was suggested by the Court to Mr. Joina that the vital dispute as regards each of his arguments was whether the Appellants
did or did not supervise headmasters. Mr. Joina accepted this suggestion and agreed that there was such a dispute on fact and argued
that it could be readily resolved in favour of his clients. He then referred to Item 9 in the Index of the Record and the Note at
the end of the Index which stated that the Appellants' Attorney had objected to its inclusion. This item was a short two page affidavit
by a headmaster, Archibald S. Makgothi, which Mr. Joina said was produced after the closure of the pleadings. The Court intervened
to say that this affidavit was quite peripheral to the question of evidence in the case and Mr. Joina agreed and I will not refer
to it again in this Judgment.
Mr. Joina then submitted that as a matter of fact, all the Appellants supervise all the headmasters. He referred to the "Job
Identification" or Job Description of a Senior Education Officer, as set out in the Form produced and marked B in the Record.
Mr. Joina went through this form in some detail pointing out, for example, the use of the words "appraising" in paragraph
l.l and the words "Directs the headmaster on what immediate and long-term actions to take with reference to his findings,"
at paragraph 1.3. He pointed out that the word "supervises" is also used in paragraph 2 and the end of paragraph 2.7. Mr.
Joina relied very heavily on the Job Description and constantly
6
referred to it in the course of his submissions.
As regards paragraph 18.7, 18.8 and 18.9 of the Commission Report, Mr. Joina said the last line of 18.9 was important as it was also
apt to include the Appellants as Senior Education Officers who supervised Headmasters. He suggested that it should be noted that
when the recommendation in 18.9 was amended at page 16 of the Public Service Management Directive No. 21 of 1993, that not only was
the word "grade" substituted for the word "level" but that the description "Education Officers" was
no longer spelt with capital letters. This indicated another amendment and demonstrated that that description now includes the Appellants.
Mr. Joina was referred by the Court to the affidavit of the
Chief Education Officer, George Makunga, who produced the
Respondents' answering affidavit. It states on the first and
second pages:
(1)
I am an adult male employed as Chief Education Officer in the Ministry of Education and am directly responsible for the supervision of Secondary School Education officers. I am thus competent to make this affidavit.
(2)
The applicants in this matter are Subject Specialists (my underlining) and have a functional relationship with the headmasters of the various schools they deal with. This relationship
is distinguished from a line and staff relationship in that the former concentrates its recommendations in matters relating to their
subject Specialisation whereas the latter deal with the matters actually relating to the running of the school administration as
a whole. See annexure XI - X2.
7
The task of supervising the running of the schools administrative function is that of the Regional Education officer. It is in this
respect that he is held to supervise headteachers. Senior Education officers do not therefore supervise headteachers.
Their function is to make recommendations geared at improving the teaching methods of a particular subject."
In reply to these extracts from the Chief Education
Officer's affidavit, Mr. Joina said he was only the Chief
Education Officer and the duties of the Appellants could best be
found in their Job Description. He then referred to an
Inspection Report, compiled by some 14 Senior Education Officers,
reproduced in full in the Record as document C, as supporting his
argument that the Appellants supervised headmasters. However,
as pointed out in paragraph 9 of the Chief Education Officer's
affidavit, this is merely an inspection report, the
implementation of which is subject to confirmation by the Chief
Education Officer. It has nothing to do with the supervision of
headmasters. Mr. Joina completed his arguments with a final
reference to the Appellants' Job Description.
The Court did not find it necessary to call upon Mr. Sekgoma
to reply on behalf of Respondent. It was quite clear there was
no sufficient evidence to be found in the documents in the case
and the affidavits to support Mr. Joina's argument. It was, in
my opinion, quite clear that the Appellants as Senior Education
Officers did not supervise Headmasters but were field staff who
were subject specialists. This matter was fully canvased before
the Presidential Commission as stated at paragraphs 18.7, 18.8
and 18.9. The Commission's Report was explicit in these
paragraphs that, on the evidence before them, the Regional
8 Education Officers supervised Headmasters at secondary school level whilst Education Officers for primary schools supervised headteachers.
The Appellants did not accept these clear findings on fact by the Commission and continued to argue that they also supervised headmasters.
The last sentence of paragraph 18.9 was taken completely out of a context which included the first sentence of paragraph 18.9. Mr.
Joina was driven to suggest that deleting the capital letters of "Education Officers" in the later Directive's amendment
to paragraph 18.9 was intended to indicate that the Appellants were to be included in a new broad description. This was a hopeless
argument. The stance taken by Mr. Joina became even more extreme when he suggested that although Regional Education Officers might
supervise headmasters in schools within their region, nevertheless the Appellants who functioned throughout the country could then
overrule any instructions given by the Regional Officers. There could thus be a situation where a headmaster of a secondary school
could have two supervisors, namely, his Regional Education Officer and any Senior Education Officer who chose to exercise control
over him. Such a result would lead to chaos in school administration and only has to be stated to demonstrate its absurdity.
The only faint support that could be advanced in support of Mr. Joina's argument is to be found in the Job Description for Senior
Education Officers where the term "supervises" is used. However a close reading of the Job Description demonstrated that
where the word is used it does not mean supervision of a headmaster. In Duty 2 it is supervision of education officers
9
of his subject. In Duty 2.1 it is supervision of the
implementation of the curriculum. In Duty 8.3 it is supervision
of the marking of examination papers in a specified subject.
These three Duties emphasise the Commission's conclusion, in
paragraph 18.8 of their Report, that the Senior Education
Officers for secondary schools were field staff who are subject
specialists.
Mr. Joina in his submissions to this Court never referred
to the Job Description for Regional Education Officers. This was
no doubt because it does not assist his argument. However, it
makes it clear that it is such officers who supervise secondary
school headmasters. Such a Job Description, as contained at in
document Y in the Record, states in paragraph 2 that a Regional
Education Officer is inter alia directly responsible to the
Director of Secondary Education and directly responsible for "ALL
SECONDARY DEPARTMENT STAFF IN THE REGION, SENIOR EDUCATION
OFFICERS, HEADS, SCHOOL MANAGEMENT ADVISERS, BOARDS OF
GOVERNORS" . Such wording indicates that not only do the Regional
Education Officers have direct control over the Headmasters but
also the Appellants themselves. Be that as it may, the first
Duty of such an Officer in paragraph 4 is:
:4 DUTIES
1. Supervises and provides support for Heads (my underlining) in his or her region and acts as the first contact point for all matters concerning the Ministry of Education."
Thus the lynch pin of Mr. Joina's argument, based on his
clients' Job Description, is fatally flawed when it is closely
examined and also compared with the Job Description of Regional
10
Education Officers.
~~
I can find no other evidence in this case which supports the Appellants' claim, apart from their own continued protestations, originally
before the Presidential Commission and then thereafter when their Report was published. The Commission had reached a clear conclusion
on the evidence before them on this matter. As a matter of fact I am quite satisfied that the Appellants do not supervise headmasters
and therefore cannot fall within the ambit of Recommendation 18.9 as later amended.
In these circumstances I am completely satisfied that the Appellants cannot succeed in this appeal against the decision of the Judge
a quo and the Appellants' application should be dismissed. This appeal is accordingly dismissed with costs to the Respondent.
DELIVERED IN OPEN COURT AT LOBATSE THIS 25th DAY OF JULY 1997
W.I.S. ALLANBRIDGE Judge of Appeal
I agree
A.N.E. AMISSAH
President of the Court of Appeal
I agree
J.H. STEYN Judge of Appeal
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