Moupo v The Attorney General (Civil Appeal No. 48 of 1996) [1997] BWCA 31; [1997] B.L.R. 810 (CA) (28 July 1997)

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Moupo v The Attorney General (Civil Appeal No. 48 of 1996) [1997] BWCA 31; [1997] B.L.R. 810 (CA) (28 July 1997)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 48 OF 1996 [HIGH COURT CIVIL CASE NO. 902/93]
In the matter between:
LEKOKO MOUPO Appellant
and
THE ATTORNEY GENERAL Respondent
Mr. L.O. Tlhowe for the Appellant Mr. M. Chamme for the Respondent
JUDGMENT
CORAM: A.N.E. AMISSAH, P. J.H. STEYN, J.A. P.H. TEBBUTT, J. A.
THE COURT:

The appellant was employed in the Public Service of the Government of Botswana from June 1977. On 7 September 1990 he was dismissed from the Service. The ground for his dismissal, as set out in a letter of that date, was stated to be his misconduct in being absent from duty without authority. On 7 June 1993 he issued a combined summons against the respondent, the Attorney General, acting as the legal representative of the Government of Botswana and, in particular, cf the Director of Public Service Management [DPSM].

In his declaration the appellant made five claims which he numbered A to E. The total amount of these was P820 560,35 which he claimed together with interest and costs.

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Claim A was that he had been dismissed without being "given a fair hearing or adequate notice of termination of his contract." He alleged that, as a result, his dismissal "was rendered unfair and therefore wrongful and unlawful." He accordingly claimed that he was entitled to reinstatement or, alternatively, to damages, being less of earnings, in the sum of P484 479,60. Of the other four claims, claim E was settled out of Court. Claims B,C and D related to a year of study for an LLB degree at the University of Botswana from April 1988 to July 1989 which the appellant alleged he had pursued with the approval of the DPSM. Except for claim E, all the other claims were opposed by respondent who denied that appellant had been wrongfully dismissed as averred by him in claim A. He also denied that appellant had embarked upon his year of study at the university with the approval of the DPSM and that the latter was liable to appellant in respect of claims B,C and D. In regard to these three claims and claim A the respondent also filed certain special pleas, including pleas that the claims had become prescribed.

Following a trial in the High Court, Levy Aa J. , in a written judgment delivered on 18 September 1996, dismissed all the claims. He did so en the facts adduced during the trial and not on the special pleas. As to costs, he ordered that appellant was entitled to one-fifth of the costs as at 27 September 1994 when claim E was settled but that appellant had to bear all the other costs, save for those involved in the special pleas.

Appellant now appeals to this Court against that judgment.

Although the notice of appeal sets out that the whole of the judgment is appealed against, the grounds of appeal refer only to the claim for wrongful dismissal i.e. claim A. Mr Tlhowe who appeared in forma pauperis for the appellant also stated that appellant only wished to appeal against the dismissal of claim A. Nothing more need therefore be said in regard to claims B,C and D.

The grounds of appeal read as follows:

The learned judge erred in law when he held that Appellant's dismissal was fair justifiable and lawful because he failed to consider the following:

3.1.1

that although appellant's employer was seised with power in terms of Regulation 28 [1] of the Public Service Act, to summarily dismissed the appellant the employer is bound to act in accordance with the principles of natural justice.

3.1.2

that the appropriate procedure was not commenced and no preliminary investigation as required in terms of part IV [namely Regulation 10,11,12, and 15] of the Public Service Regulations was held.

[Judgment page 33]
3.2

The learned judge misdirected himself in law when he held that the appellant had not sought reinstatement.[judgment page 3].

The learned trial judge erred in law when he failed to consider appellant's tender of services and or reinstatement or any alternative relief for the appellant.

The salient facts are the following. After his year of
study, appellant returned to work on 7 August 1989 in the
Ministry of Local Government and Lands. Ms Ikaiafeng Mckgosi was

4 _
his supervisor. On 12 February 1990 she wrote the following letter to him:-
!
RE - YOUR ABSENCE FROM DUTY
This is to record that you were on leave from the i
27th December, 1989, to 19th January, 1990. 4

Ycu reported for duty on the 22nd January, 1990. Or. the same date you asked for permission to go to the doctor as ycu were not well then. Indeed permission was granted to you.

Since then you never reported for duty. You have not taken any leave neither have you been granted sick leave by the doctor. You only reported for duty on 8th February, 1990, and you gave no satisfactory explanation for absenting yourself from duty without lawful authority. When you reported on the 8th February, 1990, you were under the influence of liquor.

You are therefore, given 7 days to give reasons why disciplinary action should not be taken against you.

Yours faithfully,
I. Mokgosi for/PERMANENT SECRETARY"
No response was received to this letter, appellant testifying at the trial that he had never received it.
On 7 September 1990 the DPSM wrote to him as follows [the
letter is quoted in extenso]:-
"Mr. lekokc Moupc
u. f.s . Permanent Secretary, Ministry of Local Government and Lands
Dear Sir,

The Permanent Secretary Local Government and Lands has reported to me that you were absent from duty without authority on the following occasions:-

5
a; 23rd to 31st January, 1990
b) 1st to "7th February, 1990

On the 12th February, 1990 you were charged for this misconduct and requested to give the reasons in writing why disciplinary action should not be taken against you. You neither replied to the charges nor gave any reasonable grounds for your unbecoming behaviour. This suggest to me that you are a person of indifferent attitude and you have no respect to someone placed on authority over you.

I have noted with concern that previously you were charged and warned of similar acts cf misconduct but you seem to have not taken heed of those warnings.

On the 14th February, 1983 you were reduced in rank to GA.3 salary scale consequent to your misconduct of absence from duty without authority and for misuse of a government vehicle. On the 11th April, 1984 the period of your demotion was extended by three months because you had not improved your general conduct. On the 23rd June, 1987 you were also charged for similar acts of misconduct of absence from duty without authority. On the 8th July of the same year you were again charged for misconduct of absence from duty without authority.

Given all these records of misconduct and the warnings, I am satisfied that you were accorded every assistance and the opportunity to adjust your behaviour. I am not left with no choice [sic] but to dismiss you from the Public Service with immediate effect.

Yours faithfully
M. Modi si
DIRECTOR OF PUBLIC SERVICE MANAGEMENT
cc. Accountant General Auditor General"

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6
It is common cause that appellant's service in the Public
Service was governed by the Regulations to the Public Service Act
[Cap 26:01]. Two of those Regulations are germane to the present
case. They are Regulations 11 and 28 [1]. Regulation 11 reads
as follows:

"11. [1] Where a Permanent Secretary becomes aware of allegations of misconduct against an officer he shall, if he is of the opinion that disciplinary proceedings may be necessary, instruct some other officer of a rank not less senior than the officer against whom the allegations of misconduct have been made to hold a preliminary investigation into those allegations.

[2] If, following the preliminary investigation, the Permanent Secretary is of the opinion that there is a prima facie case against the officer concerned, he shall prepare a list of charges against the officer in such form as may be prescribed in General Orders, with such modifications as may be necessary in any particular case.

[3] The list of charges shall be sent to the officer against whom they are made and he shall be informed that he has such period, being not less than 14 days, as appears reasonable in all the circumstances to the Permanent Secretary to reply in explanation of the charges against him."

Although they are not strictly relevant to the present
appeal it should be noted that Regulation 12 provides that if the
officer does not reply to the charges made against him under
Regulation "within the time specified, or if he fails to
exculpate himself to the charges to the satisfaction of the
Permanent Secretary", the latter must report the case the
responsible officer and Regulations 13 to 16 lay down the
procedures that thereafter have to be followed by the latter in
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regard to establishing if the charges have been proved and, if
so, the punishment in respect of them as laid down in Regulation
24. ["Responsible officer" is defined in the Act as the public
officer, in relation to another public officer, designated, or
to whom the necessary power is delegated under this Act, to
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exercise disciplinary control over and to remove from office that
other public officer". i|
Regulation 28 [1] reads as follows:-

"28. [1] Without prejudice to the taking of any other disciplinary proceedings, a public officer who has been absent without leave or reasonable excuse may be summarily dismissed by a responsible officer without any further disciplinary proceedings being taken."

Two issues arise for determination: [I] Whether Regulation 11 is applicable in the case of a public officer who has been absent without leave or reasonable excuse and;

[ii] Whether the appellant was given adequate notice of the charge against him and sufficient opportunity to contest the allegations of absence or to explain such absence, so as to warrant his summary dismissal in terms of Regulation 28 [lj.

It is convenient to deal with the second of these issues first.

In his heads of argument, Mr. Chamme, who appeared for the Attorney General conceded, quite correctly, that before a public servant is dismissed under Regulation 28 [1] he is entitled to

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be given a hearing and generally to be treated fairly.

He submitted, however, that these conditions had been met by what was contained in the letter of 12 February 1990/ viz an allegation that he had been absent from duty without lawful authority from 23 January tc 8 February 1990, coupled with an invitation co him tc give his reasons within seven days why disciplinary action should not be taken against him; i.e. to furnish reasons for his absence without leave.

As stated above appellant said at the trial that he never

received that letter. Ms. Mokgosi said he did. She had called

him into her office and given it to him personally. The learned

trial Judge dealt with this conflict as follows:-

"I accept the evidence given by Ikalafeng Mokgosi that she handed the letter tc him personally. He did admit in his replication that a "Government Officer" had spoken to him about his absence. His denial that he had not received the letter of 12 February 1990 is a deliberate untruth."

It is well settled in England, South Africa and Botswana
that a Court of Appeal will not disturb the findings of fact of
a trial Court unless it is satisfied that that finding is clearly
wrong [see e.g. Mechanical and General Inventions Co Ltd and
Lehwess v Austin and Austin Motor Co Ltd [1935] AC 346 at 358,
375; Bocock v Enfield Rolling Mills Ltd 1954 [3] All.E.R. 94;
Kunz v Swart 1924 AT' 618 at 635; R v Dhulmayo 1948 [2] S.A. 677;
CF Industries TPtyl Ltd v Attorney General Civil Appeal 25/96
{unreported}]. Mr. Tihcwe urged this Court to find that the
trial Judge was wrong in accepting the evidence of Ms. Mokgosi
and rejecting that of the appellant. His criticism of the
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finding is based on a statement in her evidence by Ms. Mokgosi that she handed the letter to appellant on 8 February 1990, i.e. four days before she wrote the letter. This was clearly an error on her part. When the trial Court pointed out to her that the letter is dated 12 February 1990 she immediately said "I gave him the letter the same day which I wrote the letter." Her evidence, so Mr. Tlhowe submitted, was "confused". On a reading of the record of her evidence, we can find no justification for this submission.

As regards the trial Court's finding in regard to the appellant's evidence, it was, in our view, and also for the reasons set out below, completely warranted. The appellant was obviously not telling the truth about the receipt of the letter. He said the letter was first "made known to him" and the first time he had seen it was shortly before the trial in 1996. He was, however, told explicitly in the letter of dismissal of 7 September 1990 that he had been charged on 12 September 1990 with being absent without leave. He was also requested to give his reasons in writing for his alleged misconduct. His evidence that he only became aware of the letter of 12 February 1990 shortly before the trial in 1996 is therefore an obvious untruth. In any event one would have expected appellant, who is undoubtedly an intelligent man and who has a B.A. degree in Political Science and Political Administration and had successfully completed a number of courses in legal subjects including the law of contract and constitutional and administrative law, to have immediately

I
10 |
asked for a copy of the letter of 12 February 1990 on receipt of
the letter of 7 September 199G.

The probability is, therefore, overwhelming that he did not if

do so because he had, as Ms. Mokgcsi testified, received the '%

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letter on 12 February 1990.      |
The manner in which he dealt with the matter in replying to      1
questions by the trial Judge is also highly illuminating. In     i|
respondent's plea it is averred that "on the 12th February the   ;|
plaintiff was invited in writing to explain his absence from duty        ii|
and failed to avail himself of the opportunity." In reply to     i|
this averment the following appears in appellant's replication:-
"Plaintiff denies that he was ever invited in    M
writing but states that a Government Officer did         i|
call to seek explanation on plaintiff's alleged
absence from work and a full and satisfactory
explanation was given to the said officer."      ;|
On the evidence that "Government Officer" could only have        ^:1
been Ms. Mokgosi. In preparing the replication appellant's legal         ;|
advisor could only have been given that information by appellant.        i|
How did the appellant deal with this in his evidence? We cite    J;
from the record-
"Court: In your pleadings you say somebody from ;|
the Public Service Commission came to see you?   i|
Witness: I do not recall saying so.      if
Court: [Court read the applicable portion] Do you        ;|
not recall than?
Witness: I do not recall.
Mr. Chamme: Let me tell you that the person who i|
came to see you is Ms. Mokgosi? ; ;
Witness: I cannot recall that.   _;|

'^^^^^^^^^^^^m'mm^^^^i^mm^m.

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11 1

p.
Court: Why should your Attorney put that in the ;p
pleadings? :g

I
Witness: Which date are you referring to? :|

Court: If you want to take it further, take it :p
further with Mr. Chamme. t

Mr. Chamme: What I am putting to you is that in ;|

February when you reported for your duty, Miss Mokgosi confronted you about your absence?
Witness: The contents of the letter are offensive, I did not reply.
Mr. Chamme: May be you did not reply because you did not have the defence.
Witness: That is not true."
₁

His convenient lapse of memory is highly revealing and his reply that "the contents of the letter are offensive, I did not reply" is a slip of the tongue on his part which shows that he did have knowledge of the contents of the letter.

The trial Judge was therefore clearly correct in rejecting appellant's evidence, accepting that of Ms. Mokgosi and finding that appellant had received the letter of 12 February 1990 and had not responded thereto. There is accordingly no basis on which this Court could disturb this critically important finding.

The matter must therefore be approached on the basis that appellant did receive the letter of 12 February 1990 and did not respond to it.

We come now to consider the question of the meaning and the applicability of the regulations cited above. Mr. Tlhowe contended that Regulation 28 [1] merely provided for the establishment of a right of summary dismissal. The procedure to

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12

be followed in a case falling squarely within the purview of Regulation 28, sc he submitted, was prescribed in Regulation 11. Such a construction in our view does violence to the language, structure and meaning of the regulations in question. We say this for the following reasons:-

Such an interpretation would compel one to ignore the use of the word "summary" in Regulation 28. The procedures prescribed in Regulation 11 and in the Regulations that follow are both cumbersome and time-consuming. They would defeat, in our view, the very objective the legislature had in mind, i.e. that in cases of unauthorised absences from work, which are easily established, a speedy disposition of this breach of duty was both possible and desirable.

The introductory words found in Regulation 28; i.e. "without prejudice to the taking of any other disciplinary proceedings", are also not readily reconcilable with the construction contended for by appellant's Counsel.

At the same time the legislature was conscious of the fact that summary dismissal was a radical and extreme remedy. It therefore provided for the protective provisions contained in Regulation 28

[2]. It reads as fellows:
"An officer who has been dismissed under subregulation [1] may within one month of the
1
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dismissal make representations to the responsible officer to review his case."
This provision enacts a procedural remedy for
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someone who has been summarily dismissed which il

differs fundamentally from the procedural ;|

requirements prescribed by the body of ^;|

regulations that aeal with disciplinary ;|

proceedings. if

4. The structure of the regulations, and i

particularly the self-standing nature of the :|

provisions of Regulation 28 [1] also confirms i|

that the legislator intended these provisions to 1

operate independently of the other regulatory if

constraints dealing with matters cf discipline if

and the procedures that govern disciplinary if

action. ;|

It was in our view, correctly conceded on behalf of the if

Attorney General as set out above that nevertheless, and despite j|

the right conferred by Regulation 28 [1] to secure a dismissal

summarily, the procedure adopted had to meet the requirements of 1

natural justice. The procedures employed should meet the ;|

criterion that the person who was subject to summary dismissal

was fairly treated. 1

Counsel for the appellant complained that he was not given '%.

a hearing. The truth of the matter is that on the evidence on if

record, appellant appeared not to have wanted to avail himself jl

of the opportunity the letter of 12 February 1990 afforded him ||

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to put his side of the case. By the time, some 7 months later, and when appellant is actually dismissed, he had not taken any steps to reply to or respond in other any way to the charges raised against him. Even after the letter of dismissal reached him, he made nc effort to avail himself of the rights conferred on him by Regulation 28 [2] . One would have thought that had he felt he had been unfairly treated, he would have taken some steps to attempt to remedy the situation. In the result, however, he waited nearly three years before instituting his action to have the alleged injustice addressed.

A study of the record has convinced us that the misfortunes that befell the appellant were entirely of his own making and that he has no legitimate complaint about the way in which his contract of employment was brought to an end or that there was, in fact, any unfairness in the manner in which this was done.

For these reasons the appeal is dismissed. As the appellant was given leave to prosecute his appeal in forma pauperis, there would be no purpose in ordering him to pay any costs of the appeal and accordingly no such order is made. The Court would, further, wish to express its appreciation and thanks to Mr. Tlhowe for the conscientious and thorough manner in which he prepared and argued the appeal on behalf of the appellant.

^
DELIVERED IN OPEN COURT AT LOBATSE THIS 25^th DAY OF JULY, 1997.

A.N.E. AMISSAH [PRESIDENT]
J.H. STEYN [JUDGE OF APPEAL]
P.H. TEBBUTT [JUDGE OF APPEAL]
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