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Modongo v Lewis Stores (Botswana) (Civil Appeal No. 18 of 1996) [1997] BWCA 8; [1997] B.L.R. 35 (CA) (23 January 1997)
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1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO 18/96 INDUSTRIAL COURT CASE NO. IC 97/95
IN THE MATTER BETWEEN:
MILTON MODONGO
APPELLANT
AND
LEWIS STORES (BOTSWANA)
RESPONDENT
MR ATTORNEY T. JOINA FOR THE APPELLANT MR ATTORNEY KANJABANGA FOR THE RESPONDENT
JUDGMENT
CORAM: A.N.E. AMISSAH, J.P. J.H. STEYN.J.A P.H. TEBBUTT.J.A.
STEYN JA
In this matter Appellant challenged the fairness of his dismissal as an employee of the Respondent. The process as prescribed by the
Trade Disputes Act (Cap 48:02) was duly employed. The District Labour Officer reported pursuant to an enquiry held on the 23rd of
September 1995. She was of the view that Appellant's services had been fairly terminated. The matter was then referred to the Commissioner
of Labour. He too found that "the termination of Complainant's (Appellant's) Contract of employment to be fair." The Commissioner
then issued a certificate notifying both parties that they "may now refer the said trade dispute to the
2
Industrial Court for a hearing and a determination."
When the matter was called in the Industrial Court,
Respondent raised a point in limine. It submitted that as a
matter of law Appellant was non-suited. The contention
advanced was that Appellant should be deemed to have waived
the right to protest against the termination of his employment
by virtue of the fact that he had failed to exercise his right
to protest within 14 days "immediately after learning of the
termination or intended termination" of his contract of
employment. (See Section 5(1) of the Trade Disputes Act as
amended by the Trades Disputes Act 1992 - Botswana Statute Law
1992 Vol.76.) After reviewing the evidence and the law the
presiding Industrial Court Judge held as follows:
"1. The Respondent's point in limine is upheld, as this dispute is not properly before the Court.
2.
The Appellant is deemed to have waived his right to protest and therefore he has no claim against the Respondent, based on his dismissal.
3.
No order is made as to costs."
It is against this determination that Appellant has appealed to this Court.
The facts are the following. Appellant was appointed as a branch manager in the employ of Respondent on November 11 1990. In the employment
form which he completed appellant gave as his address P.O. Box 2491 Gaborone. He also stated that he had never been convicted of
a criminal offence. On the 2nd April 1991, some P21,000 in cash, which Appellant was supposed to have banked, "disappeared".
He was charged with theft and convicted in the Magistrate Court but appealled against his conviction. The facts which appear from
the
3 judgment on appeal to the High Court indicate that Appellant was the "person who was supposed to have banked this substantial
sum of money. He alleges that he did so in the "night-safe" at the Bank. This version was rejected at his trial in the
Magistrate Court that found him guilty. He admitted a number of previous convictions" and on August 20 1991 he was sentenced
to 6 years imprisonment, 2 years of which were conditionally suspended.
This appeal took nearly 4 years to be heard. However that may be, on the 17th of May 1995 his appeal was upheld and the conviction
and sentence were set aside.
In the meantime, shortly after the disappearance of the funds and on April 11 1991, Appellant's services with Respondent were suspended.
The letter of suspension reads as follows:
"Dear Sir
This letter serves to advise you that, with immediate effect, your service with the company has been suspended, pending the outcome
of an investigation into the disappearance of 21 278.34 Pula. The amount in question was the takings of the Branch for 2 April 1991,
which was handed to you in the presence of four witnesses, to be deposited with Barclays Bank.
Barclays have informed us that no Deposit was made and you presently cannot explain the circumstances of the loss. We therefore have
no alternative but to suspend your services until suitable answers can be obtained.
Yours faithfully,
L.A. DAVIES FINANCIAL DIRECTOR"
On the 21st May 1991 the following letter is alleged to
have been addressed to Appellant by Respondent.
4
"Mr M Modongo P.O.Box 2491 Gaborone
Dear Sir,
Re: EMPLOYMENT AT LEWIS STORES STATION BRANCH
After carefully considering the future position of our Branch, I came to the conclusion that I can no longer employ you, taking into
consideration the gross negligence that took place during your period as manager. However, after discussing your position with the
local labour department I agreed to pay your full salary until the end of June, at which date your services will be terminated.
Yours faithfully,
(Signed)
J. Snygans
REGIONAL CONTROLLER"
Although this letter is directed by Respondent to the address furnished by Appellant in his application for employment, in a signed
statement in the proceedings referred to above Appellant avers that he did not receive the letter. He alleged that this letter "is
another fake because Lewis (Appellant) cannot produce the original letter or a post office receipt to show that the letter was indeed
posted to me in May 1991." In its reaction to this statement Respondent denied "that the letter of termination is a fake.
The original was posted to Applicant at Applicant's present/current post office box number which he still continues to use ..."
We return to May 1995. After his acquittal on appeal on May 17, 1995 and on the 18th May Appellant reported for duty. In a statement
annexed to his Statement of Case in terms of
5
Rule 4(3) of the Industrial Court Rules, Appellant avers the
following:
My view is that my services was never been terminated (sic), until May 18, 1995 when I reported for duty after acquitted (sic) from
the offence which formed the basis for (sic) my suspension. This was done so in order to avoid paying my salary as assured by the
company when suspending me.
I therefore apply for payment of my salary commencing April 1991, including leave pay, and 2 months salary in lieu of notice, as Lewis
is not in a position to reinstate me."
It is common cause that Appellant only protested against his dismissal on the 7th of July 1995. As can be seen from the above cited
provisions of Section 5(1) of the Trade Disputes Act an aggrieved party is obliged to protest within 14 days after hearing of the
termination or intended termination of his contract.
However, as in the case of the letter of termination allegedly despatched to him in May 1991, Appellant explains the statement by
a recital of certain events which he alleges occurred on the 18th of May and the days following. On that day he says in his statement,
referred to above, that he reported for duty. There he met Mr Combrick ( I assume the name is Combrink) who told him to telephone
Cape Town as "he did not have authority to take me".
He goes on to say.
"I phoned Cape Town, but no one had any answer to my problem. However someone in Cape Town asked me to phone Mr Snaygans at van
der Byl Park. I phoned but never spoke to Mr Snaygans as I was always told he was not there."
I should interpose to say that the statement cited above
in which Appellant states that his services were never
6 terminated until May 1995 is part of the same statement in which he relates the occurrences of 18 May and the period following.
In view of the fact that he received no response to his queries he consulted his attorneys. On the 5th of June 1995 they wrote the following letter to the District Labour Officer.
"Dear sir
RE: SUSPENSION FROM WORK : MILTON MUDONGO / LEWIS STORES
1.
We refer to the above matter and advise that we act for Milton Mudongo.
2.
We are instructed as follows:
2.1
That client was under the employment of Lewis Stores, a furniture shop operating in Gaborone, since October 1990 to April 1991.
2.2
In April 1991 he was suspended due to a criminal charge that was levelled against him by the State.
2.3
Due to the delays of the State, and the Justice administration in particular the case dragged on for sometime and only came to finality
on the 17th May 1995 (find enclosed herewith for your perusal a copy of the Court Order).
2.4
At the finality client was acquitted and discharged.
3.
In the meantime client has not been paid his salary. The suspension was pending the finalisation of the matter.
4.
In the premises we are hereby formally reporting this matter to enable your office to adjudicate the dispute in terms of the Employment
Act.
Yours faithfully
T. JOINA
JOINA & ASSOCIATES
cc Lewis Stores
7
P.O. Box 78 GABORONE"
Respondent"s reply to Appellant's Attorneys letter is
brief and to the point. On the 12th of June 1995 they wrote
to say:
"It would seem that you were unaware that Mr Mudongo's services with the Company were terminated at the end of June 1991, a copy
of our letter is attached." (This is the letter appellant avers he never received)
The matter was then channelled through the machinery provided by the Trade Disputes Act. That process was initiated after Appellant's
Attorneys wrote to Respondent's legal advisors on the 11th of July 1995 in the following terms:
"Dear Sir,
re: MILTON MODONGO vs LEWIS STORES
1.
We acknowledge receipt of your fax to the Labour Office dated 7th July 1995 and the subsequent telephonic conversation between Achiume
/ Duncan / Ghartey-Tagoe.
2.
As already canvassed to your clients, our client was suspended on 9th April 1991 pending criminal proceedings of which he was subsequently
acquitted on 17th May 1995. In reaction to our letter of demand dated 5th June 1995 your clients, by letter dated 12 June 1995 enclosed
a copy of a letter of 21 May 1991 which purported to dismiss our client due to "the gross negligence that took place during
your period as manager." Our instructions are that this dismissal letter was never received nor acknowledged by our client.
3.
It is in these circumstances that we maintain that our client was unlawfully dismissed, if at all this is what happened, such dismissal
being clearly against rules of natural justice and accepted procedures for termination. At no time was he ever confronted with the
allegations of "gross negligence" nor was he given an opportunity to be heard. He therefore claims that he be reinstated
and paid all his salary arrears to-date.
Yours faithfully
8
(Signed) M.K ACHIUME JOINA AND ASSOCIATES
CC: THE DISTRICT LABOUR OFFICE (Ms Mookodi) P 0 BOX 20567 GABORONE"
I have indicated above how the matter was dealt with by the District Labour Officer and by the Commissioner of Labour. The latter
certified that the trade dispute was ripe for determination by the Industrial Court. I have also set out how the proceedings before
the Industrial Court terminated in a ruling on what was referred to as a point in limine; i.e. that Appellant had waived his rights to protest by allowing a period of more than 14 days to elapse after learning of his dismissal
and before noting his protest.
When the matter was called before us, the President of the Court of Appeal raised two issues with Counsel for the Respondent. These
were:
1.
Was the matter raised a point in limine which could be adjudicated upon undisputed facts and if not, was it procedurally appropriate to dispose of the matter in this way?
2.
Was it lawful for the Industrial Court Judge to have heard the matter sitting alone? Was the matter before the Court "a matter
of law arising for decision at a sitting of the Court". (See section 18(2) of the Trade Disputes Act referred to above)
If it were not a matter of law or a "question as to whether a matter for decision is a matter of law or a matter
9 of fact" the Court must in terms of Section 17(6) of the Act be constituted by a Judge who "shall sit with two nominated
members, one of whom shall be selected by him from among six persons nominated by . ..." organisations representing employer
and employee organisations respectively.
A determination of these two issues requires a close examination of the facts and of the reasons for judgment of the Industrial Court
(the Court). These two matters are inter-linked and can conveniently be considered together when dealing with the two questions posed
by the President of the Court of Appeal.
It is clear that Appellant disputed that he ever received the letter Respondent sent him on the 21st of May 1991. The Appellant in
this respect pointed to the fact that no receipt could be produced to prove either that the letter had been sent or had been received.
It also seems clear that despite the averment in Appellant's statement referred to above that his services had never been terminated
until 18 May 1995 when he reported for duty, he did not intend to make an admission that he had been informed on this date that such
termination had in fact been communicated to him. I say this because of what is contained earlier in the same statement as recorded
above in this judgment. The recital of these facts appears to be inconsistent with a view that Appellant intended to admit that he
had in fact been informed of his dismissal on this date. Indeed, the version as deposed to and read as a whole in my view, according
it the most favourable construction for the
10 Respondent, is at least equivocal.
Whilst there are other factors that could be put in the scale to determine whether or not Appellant knew of his dismissal - or knew
that his employer intended to dismiss him - prior to his admitted protest dated 7th July 1995, none of them are of such significance
as to render the issue capable of being regarded as "undisputed."
It seems to me that the Court had to ask itself whether:
1.
It could dispose of the matter by adjudicating on the point in limine without having to enter into an evaluation of the probabilities of genuinely disputed facts;
2.
it was seized with the making of a decision on a "matter of law" or whether the determination of the matter of law involved
the resolution of one or more factual disputes.
An analysis of the evidential material placed before the Court as well as its reasons for judgment leaves me in no doubt that both
questions posed above should be answered in the negative. It is true that a Court properly instructed and constituted may well after
weighing the evidence have come to the same conclusions as the learned Judge did. However, no Court could on the crucial issue as
to when Appellant learnt of his dismissal hold that there was no dispute of fact in respect of this issue. Moreover, whilst prima facie, the probabilities concerning this dispute may well have favoured the Respondent, it cannot be said that the disputes raised by Appellant
were not genuine and did not require the making of
11
findings of fact.
I say "not genuine" because clearly the mere fact that a party alleges the existence of a dispute of fact does not mean
that it exists. Spurious allegations of the existence of factual disputes will be readily discernable and unmasked as such by a Court.
However, the mere fact that the probabilities may lie one way or the other, even significantly so, does not entitle a Court to rule
that no such dispute exists.
In this regard it is instructive to note the approach
adopted by a Court in disputes brought before it on affidavit.
In dealing with the issue as to whether in this context a
dispute of fact exists, Erasmus; Superior Court Practice says
the following at p.Bl - 48:
"In every case the court must examine an alleged dispute of fact and see whether in truth there is a real dispute of fact which
cannot be satisfactorily determined without the aid of oral evidence,- if this is not done a respondent might be able to raise fictitious
issues of fact and thus delay the hearing of the matter to the prejudice of the applicant."
The learned author states in footnote 2 op. cit that:
"Other terms used include 'genuine' (Peterson v Cuthbert & Co Ltd 1945 AD 420 at 429; Khumalo v Director-General of Co-operation
and Development 1991 (1) SA 158 (A) at 168A); 'genuine' and not merely illusory' Parker v W G B Kinsey & Co (Pvt) Ltd 1988 (1)
SA 42 (ZS) at 51E); 'werklike of direkte' (Van der Merwe v Meyer 1971 (3) SA 22 (A) at 26G); 'bona fide' (Von Steen v Von Steen 1984
(2) SA 203 (T) at 205B) ."
Such dispute must, of course, also be material - i.e relevant for the purposes of the determination of the issues before Court. See
Peterson v. Cuthbert & Co. Ltd op cit.
The Court was, for the purposes of adjudicating upon the issue as to whether Appellant's protest was in or out of time,
12 obliged to make certain findings of fact. It is clear from Respondent's heads of argument that its legal advisors were also of
this view. In their heads of argument filed with this Court on the 13th of January 1997 Respondent submitted as follows:
"Therefore the main issue then is a question of fact relating to when did appellant know of his dismissal by-respondent? Was it at least at 18th May 1995 as found by the Court, or the 5th of July 1995 as alleged by Appellant." (Own emphasis)
Later under the heading Condonation. Respondent says in its heads that Appellant's appeal is "against the Court's finding of fact that he learnt of his dismissal on the 18th of May 1995." (My underlining.)
As to what are questions of law and what are questions of fact, see the instructive reasoning and the cases cited in the South Africa
Court of Appeal in Magmoed v Janse Van Rensbura and Others 1993 (1) SA 777 (A.)
It follows that:
1. The issue raised as a point in limine required an
adjudication of factual disputes and that the matter was not ripe for resolution by way of a decision on the preliminary objection.
Such objection could only legitimately have been determined if the facts were either agreed, were facts which were common cause between
the parties or upon an acceptance of the facts as deposed to by the contesting party.
13
2. The learned Judge erred in proceeding to determine factual disputes between the parties without summoning assessors to his assistance
as provided by-Section 17(6) read with Section 18 (2) and (3) of the Trade Disputes Act. In the case of Botswana Railways Organization v. J. Setsogo and others (Court of Appeal case No 51/95) this Court said the following:
"I would add two notes of caution. One is that the power to create specialist courts and man them - even pursuant to a recommendation
of the Judicial Services Commission -is a power which must always be exercised with great care. When the appointment of the presiding
officer is made by the Executive, acting without the benefit of the advice of the Judicial Services commission, such an appointee
- even thought he is appointed because of his expertise - walks a tightrope from the very moment of his assumption of office. I say
this because the area of resolution of industrial disputes is a minefield, in which fairness, objectivity and manifest independence
are pre-requisites for confidence and acceptance of decisions - more specifically as these impact upon emotive, volatile - indeed
explosive - issues. Great care must therefore be taken to ensure that in its composition and the procedures through which its deliberations are conducted,
the objectivity, representativeness and impartiality of the Court are beyond legitimate question."
This judgment was given after the judgment in the instant
case and was therefore not available to assist the Industrial
Court Judge in coming to a decision as to how to constitute
his Court. These comments nevertheless remain valid. The
Court would be well advised to exercise great care before
embarking upon a course of action that would defeat the
objective of the legislature in ensuring that trade disputes
involving matters of fact are adjudicated upon by a
representative Court. I believe such an approach will only
serve to enhance the acceptability of its decision in the
14 volatile market place of industrial relations. The maxim should be: when in any doubt, summon assessors to assist the Court in
its decision making.
There are two remaining issues. The question of whether the Court has any discretion to condone a non-compliance with the provisions
of the Act prescribing the period within protest should be made was raised as an after-thought by Counsel for the Respondent. The
matter was not argued before us, neither is it necessary or wise to determine it, especially in view of the fact that we have not
had the benefit of any submissions on it.
The second issue is one of costs. Mr Joina asked that he be awarded costs both in this Court and in the Court below. We disagree.
Appellant never raised the issues settled in this judgment on appeal. It may well be that his cause is ill- founded. Justice in our
view would be best served by making no order as to costs.
In the result, the appeal succeeds. The decision of the Industrial Court is set aside. The matter is referred back to the Industrial
Court to conduct a hearing and to determine the disputes between the parties via a Court properly constituted in compliance with
the provisions of Section 17 and 18 of the Trade Disputes Act. There will be no order as to costs.
J.H.STEYN
JUDGE OF APPEAL
15
I AGREE:
A.N.E. AMISSAH JUDGE PRESIDENT
I AGREE:
P.H. TEBBUTT JUDGE OF APPEAL
DELIVERED IN OPEN COURT AT LOBATSE THIS 23rd DAY OF JANUARY 1997
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