SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 2002 >> [2002] BWCA 5

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Botswana Building Society v Seemule (Civil Appeal No. 30 of 201) [2002] BWCA 5; [2002] 1 B.L.R. 34 (CA) (2 January 2002)

PDF of original document.PDF of original document

.RTF of original document

IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Civil Application No. 30 of 2001 Industrial Court Case No. 1C 24 of 2000
In the matter between:
BOTSWANA BUILDING SOCIETY        Applicant
and
ANNAH SEEMULE    Respondent
Mr. V. Moupo for the Applicant Mr. M. Kadye for the Respondent
JUDGMENT
CORAM: TEBBUTT Ag. PRESIDENT N.W. ZIETSMAN JA SIR JOHN BLOFELD JA
BLOFELD ]A:
Annah Seemule, the Respondent in this appeal, commenced her employment with the Applicant, the Botswana Building Society, on 18th May 1989. At all material times she was working for them as a security guard. The Applicant suspected her of colluding in a theft of cloths from the premises where she was working. On 28 January 1998 the Applicant sent persons round to her house who accused her of colluding in theft and alleged that she was in possession of stolen cloths. She denied the allegations and invited them to search her house. They declined to do so. On

2
the same day she received a letter signed by Mr. Tumagole, the Property Manager
for the Applicant, telling her that it had been established that she had colluded in
theft and describing her as "untrustworthy as a security officer and an unashamed
liar." The letter suspended her from work without pay. Sometime later she was
charged with the relevant criminal offence and tried at the local Customary Court.
She was acquitted. The matter was then reconsidered by the Customary Court of
Appeal, which also acquitted her. Both these acquittals took place prior to 14 May
1998. On that date certain employees of the Applicant collected her from her
house and took her to the Applicant's office. She was not told why she was
wanted. At the office she was seen by Mr. Tumagole who had other members of
staff with him. She was told that she had been called to talk about the cloths. She
was told that they knew that she had taken those things. She said nothing. They
then told her that in court a person could keep quiet but that she should not keep
quiet when they were talking to her. She said she was not willing to say anything
about the matter they were questioning her about. They told her that was "okay"
and that she could go away which she d!d. On 25 May 1998 Mr. Tumagole wrote
her a further letter dismissing her. That letter reads as follows:
"On 28 January 1998, you were suspended from work for colluding with and instigating Nchadi Bonang to steal household goods from Lot 5380 Gaborone where you were regularly posted to do guard duties. You subsequently denied any involvement in the theft after confessing in front of the Police that you were actively involved.

3
You were recently called to the office to assist us in a further internal hearing on your misconduct after further evidence was uncovered which points conclusively to your involvement. Instead of cooperating with us as a staff member, you decided to keep quiet throughout the hearing, thereby frustrating our efforts to conduct the necessary hearing. Please note that in terms of the Conditions of Service, the Society is entitled to conduct an internal hearing which in its opinion is necessary to assist in its investigations.
Your refusal to cooperate in the investigation clearly indicates that you have no intention to submit to the authority of the Society, your employer, and thus constitutes insubordination. You are accordingly dismissed from your employment with the Society with effect from the date of your suspension. Please note that any payment due to you will be withheld until all the stolen goods have been returned to the Society."
The Respondent was not prepared to accept this decision to dismiss her without contesting it. In due course the matter was referred to the Labour Office and the Commissioner of Labour. There was a hearing before the Commissioner and on 8 July 1999 his recommendations were conveyed to the parties. Broadly he found in favour of the Respondent. On 5 October 1999 the Commissioner issued a certificate in terms of Section 7 of the Trades Dispute Act Cap 48:02 notifying both parties that they may now reft/ the matter to the Industrial Court for determination.
I turn to the proceedings in the Industrial Court. When the hearing started the parties put in an agreed summary of admitted facts. That summary initially contained a sentence reading:

4
"On the 28th January 1998 the Respondent (now Applicant) suspended the Applicant (now Respondent) from work for colluding with a certain Nchadi Bonang to steal from a house the Applicant (now Respondent) was assigned to guard."
This sentence was amended by the insertion of the word "allegedly" before the
word "colluding" by agreement of the parties. The summary, after briefly stating
the facts, posed three questions for the Industrial Court.
(a)    
Whether in view of clause 15.11 of the Respondent's (now Applicant's) conditions of service, which entitles the Respondent (the Applicant) to suspend any employee with or without lawful pay, the suspension of the Applicant (now Respondent) without pay was unlawful.
(b)    
Whether the Applicant's (now Respondent's) dismissal was procedurally and substantively fair?
(c)    
Whether the Applicant (now Respondent) is entitled to claim any compensation arising out of the termination of the contract of employment before the Industrial Court?
The first question was conceded by the Applicant in the court a quo to require an affirmative answer. The Court a quo found that the dismissal was both procedurally and substantively unfair. It also found that the Respondent was entitled to compensation. I shall deal with the individual heads of compensation that are now subject to an application to appeal when I deal with the individual submissions relating to them.

5
At the start of the hearing, but after the amendment had been made, the court a quo invited both parties to call or produce evidence as the statement of agreed facts did not contain evidence that the Respondent was guilty of the alleged collusion. That was a proper course for the court a quo to take and is not the subject of an application to appeal. As a result the Respondent gave evidence herself but called no further evidence and the Applicant called no evidence of any sort.
The court a quo made this finding about the evidence on page 14 of the judgment.
"The court is satisfied that the Applicant (the Respondent) has made a prima facie case which unless and until contradicted and overcome by other evidence should prevail. She did this by producing prima facie evidence or prima facie proof of the validity of her complaint that she was dismissed for no valid reason. That called for an answer by the Respondent (the Applicant)."
The court a quo cited the case of Ex parte The Minister of Justice; In Re Rex v lacobson and Levy 1931 AD 466 in support of their approach.
As no evidence was called by the Respondent (now Applicant) the court a quo accepted the evidence of the Applicant (now Respondent).
judgment in the Industrial Court was delivered on 14th December 2000. The Applicant sought to note an appeal by virtue of Section 18(4) of the Trades

6
Disputes Act Cap 48:02 against that judgment but was out time in doing so and also failed to lodge the notice of appeal with the Industrial Court as required by Section 18(4). There is now an application for leave to appeal to this Court by virtue of Section 18(4) of the Trades Disputes Act Cap 48:02.
I turn first to consider matters of delay and procedure. Rule 13( 1) of the Court of
Appeal Rules requires that:
"The Notice of Appeal shall be filed within six weeks of the date of the judgment appealed against".
Rule 20 of the Industrial Court Rules states:
"(i) An appeal in terms of Section 18(4) of the (Trades Disputes) Act shall be noted and prosecuted within Part III of the Court of Appeal Rules.
(ii) A copy of the notice of appeal shall simultaneously be filed with the Registrar of the Industrial Court."
Six weeks from 14 December 2000 expired on 25 ]anuary 2001. The Notice of Appeal was not filed until 9 February 2001. It was then not filed in the Court of Appeal as it should have been, but was filed in the High Court. Further, no copy of the Notice of Appeal was simultaneously filed with the Registrar of the Industrial Court. As leave to appeal the judgment of the Industrial Court had neither been sought nor obtained, leave to appeal had to be obtained from the Court of Appeal under Order 14. Order 14 also requires that the Notice of Motion set out shortly

7
the reasons why the application has been made and requires it to be supported by an affidavit disposing to all the relevant facts. The affidavit in this case was sworn to by Ms. Chipo Manwa of the firm Moupo, Motswagole and Dingake, the Applicant's attorneys. There is no affidavit from the Applicant. The Respondent has made submissions criticising both the contents of the Notice of Appeal and the affidavit.
As far as the Notice of Appeal is concerned, it made no mention of the fact that it was the Applicant's case that the Respondent had been dismissed for insubordination and that the Court a quo had misdirected itself in finding that she had been dismissed for theft. Further, the affidavit contained no explanation for the delay from 25 January to 9th February 2001 as it should have done; nor did it deal adequately with some of the later delay relating to the filing of the Notice of Appeal in the Court of Appeal in July 2001. It is accepted that the affidavit did set out that the Court of Appeal Registrar informed the Applicant's attorneys in May 2001 that they had filed their Notice of Appeal in the wrong court, and that thereafter the affidavit set out the aciion the Applicant had taken. But it is submitted that insufficient explanation was given for the failure to file the Notice of Appeal in this Court before the 11 July 2001. It is also submitted that it was wholly inappropriate for the affidavit to be made by the Applicant's attorney as much of the delay was caused by the Applicants themselves, and in any event, the courts have consistently required that a supporting affidavit should be made by the

8
Applicant. A further submission was made that the Applicant made no application
to this Court for condonation when it sat in July 2001 as they should have done.
There are further criticisms of the contents of this affidavit. At paragraph 2, it
states:
"I am entitled to make this affidavit as I am personally dealing with the above matter upon instructions from the appellant. (Applicant)"
But the affidavit does not exhibit any Power of Attorney or Resolution by the
Applicant authorising the Applicant's attorneys to appeal the decision of the court
a quo in accordance with the proper practice. See Thipe and Thipe vs Mogwe and
Mackenzie Civ App 7 of 1995 where Steyn, J.A. says at page 9:
"It is manifestly improper for an attorney to proceed with an appeal and incur the costs thereof without his client's unequivocal written authorisation to do so."
Mr. Moupo for the Applicant conceded there were procedural errors and delay for
the periods from 25 January 2001 to 9th February 2001 and further delay before
the appropriate papers were filed in the Court on 11 July 2001. The Respondent
submitted that the court should find these delays excessive and the explanation for
these delays insufficient and the procedure to be fatally flawed. 1 am of the view
that each and every submission by the Respondent succeeds. Cumulatively, these
errors are very serious. They have resulted in substantial delay for which
no or inadequate explanation has been given. If the matter had been dealt with in

9 accordance with appropriate procedures, this Court in turn would have been in a position to decide whether or not to grant leave to appeal at the beginning of the July 2001 session. If leave had been granted, this Court would have been able to hear the appeal during that session. As it is, this matter has been delayed till January 2002.
It is settled law that when considering whether or not to grant leave out of time, the court should consider, among other matters, the length of the delay, the explanation for the delay, the merits of the Applicant's case and the desirability of litigation being brought to finality. See Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa 4* ed. at page 853.
Having set out the matters of delay and procedure, I now turn to consider the merits of the Applicant's case. I start by giving consideration to the course this case has taken. The letter of 25 May 1998 purports to dismiss the Respondent for insubordination in respect of her failure to co-operate at the meeting of 14th May 1998. That letter dismisses her with effect from the original date of her suspension for theft, namely 28 January 1998. Mr. Moupo concedes that that is an error as there was no insubordination till 14* May and therefore it was inappropriate to backdate the dismissal to January. The issue of insubordination was not advanced by the Applicant before the Commissioner of Labour. I turn to

10
the proceedings before the court a quo. The agreed summary of admitted facts
contains no reference to insubordination. Mr. Moupo conceded that in the court a
quo it escaped the notice of counsel that the dismissal was based on
insubordination. The court a quo at page 21 of its judgment said:
"The Court will not pursue another possible ground for the Applicant's (now Respondent's) dismissal as stated in the letter of dismissal, namely, insubordination. Counsel for the Respondent (now Applicant) did not submit any argument to justify insubordination as the ground for the Applicant's (now Respondent's) dismissal. The other reason is that the Respondent (now Applicant) having asserted the presence of conclusive evidence of the Applicant's (now Respondent's) collusion in the theft, and having failed to place that evidence before the Applicant (now Respondent), it should not be allowed to change horses mid-stream and use insubordination as the reason for dismissal."
The Notice of Appeal did not allege that the court a quo came to its decision on a
false basis. There is no mention of the word "insubordination" in those grounds. It
was not until Mr. Moupo's Heads of Argument were filed on 21 January 2002
that this matter was first raised. There, he stated at paragraph 5:
"5.1 The learned judge a quo fundamentally erred in concluding in his judgment that the Respondent was dismissed for colluding with one Nchadi Bonang to steal from the house she was assigned to guard or for stealing from the house.
5.2 In fact it is clear from the evidence on record that the Respondent was dismissed for not co-operating at the enquiry for insubordination."

11
I am satisfied that it is now too late for the Applicant to rely upon the issue of
insubordination. They have had three years from January 1998 to make it clear
what their case was. They have run the case before the Commissioner of Labour
and before the court a quo on the basis of collusion in theft. I agree with the
finding of the court a quo that they cannot now change horses in mid-stream.
Nevertheless, I go on to consider the issue of insubordination in more detail. The
only evidence of what happened at the meeting of 14 May 1998 came from the
Respondent. She had been brought to the Applicant's office alone, having been
suspended from work without pay for 3 xk months. She was not told why she was
being brought there until she arrived at the office. There she was confronted by
Mr. Tumagole who had written to her on 28 January 1998 suspending her from
work without pay and telling her that:
"You have proved to be untrustworthy as a Security Officer and an unashamed liar."
She was also told that the meeting was about stealing cloths. She declined to
comment.
These facts show that objectively this meeting purported to be a disciplinary enquiry which might result in her immediate dismissal. The Applicant had to proceed in accordance with her Conditions of Service. Condition 15.3 reads as follows: "Charges of any offence which involves disciplinary

12
action with the exception of an offence for which the penalty is a verbal warning - shall be made in writing, clearly stating the nature of the offence, and inviting the employee to reply to the charges as stated. Disciplinary action will be taken in respect of an offence for which an employee has been charged."
At the time of this meeting, the Respondent had received no charge in writing
clearly stating the nature of the offence. The Conditions of Service also require that
an employee in the position that this Respondent was, entitled to be accompanied
by a trade union official, if he or she is a member of a union recognised by the
Applicant, or by a fellow employee. (See Condition 15.6.) This condition was
also breached.
Further, the Conditions of Service set out three types of offences headed, "minor offences," "serious offences," and "dismissible offences." Insubordination is listed as a "serious offence." Theft is listed as a "dismissible offence." (See Condition 15.10.) Condition 15.9 gives guidelines about "disciplinary penalties." It states that termination without notice is considered appropriate for "repetition of serious offences." The conditions make it clear that as theft is a dismissible offence, there can then be termination without notice. Dismissal for insubordination without notice for insubordination would be a breach of the conditions.

13
I am of the view that the Applicant's behaviour in dismissing the Respondent was fatally flawed procedurally, whether it was for insubordination or theft. Further, the proceedings should not have been conducted by Mr. Tumagole who had already shown himself to be biased against the Respondent. This was a breach of natural justice as was found by the court a quo.
I am satisfied that the Applicant has failed to prove insubordination by the Respondent. I am of the view that the Respondent, in all the circumstances of this case, was justified in deciding to remain silent at that meeting. The nature of the enquiry was never properly explained to the Respondent. It was conducted by a biased member of staff and the Applicant never informed the Respondent of their evidence to indicate that she had colluded in theft. I regard this proposed ground of appeal as hopeless. I therefore hold that the Industrial Court was correct in finding that the Respondent was unfairly dismissed.
The Respondent was awarded compensation under a number of heads. The Notice
of Appeal contains grounds relating to severance benefit and Pension Contributions
and compensation for leave. I set out the relevant orders relating to compensation
made by the Court a quo.
"3. The Respondent (now Applicant) is hereby
ordered to pay to the Applicant (now Respondent)
all wages withheld during the period of suspension in the

14
amount of Pula, Three thousand, six hundred and ninety-six (P3,696.00).
4.       The Respondent (now Applicant) is ordered to pay to the
Applicant (now Respondent) severance benefit for the
period of 108 months worked, calculated as follows:-
(i) 60 months at the rate of one day basic pay per month (60 x P46.20) = P2,772.00;
(ii) 48 months at the rate of two days basic pay per month (48 x P92.40) = P4,435.20.
5.       The Respondent (now Applicant) is ordered in terms
of Section 19(2)(d) of the Trade Disputes Act, to
produce and place before the Commissioner of
Labour the Applicant's (now Respondent's) leave
record so that the Commissioner may calculate the
Applicant's (now Respondent's) monetary entitlement,
and, for the purpose of determining this issue, the
matter of leave is remitted to the Parties and the Labour
Commissioner, in terms of Section 20(2) of the said Act so
that the Commissioner can mediate on the matter in the
light of the record of the Applicant's (now Respondent's)
leave as submitted by the Respondent (now Applicant).
Should the Commissioner's mediation effort fail the matter
may be referred back to this Court following the prevailing
procedure.
6.       The Respondent (now Applicant) is ordered to pay to the
Applicant (now Respondent), compensation for substantive
and procedural unfairness, in the amount of Pula, three
thousand, six hundred and ninety-six (3,696.00) (P924 x 4)
equal to four month's monetary wages at the time of the
Applicant's (now Respondent's) dismissal.
7.       The Respondent (now Applicant) is ordered to procure the
refund of the Applicant's pension contributions in the amount
of Pula Five thousand, eight hundred and twenty-one, and
Thebe, Twenty (P5,821.20), and any interest that may have
Accrued, being contributions made over a period of 108 months at the rate of P53.90 per month.

15
8. All the payments referred to under paragraphs (3), (4) and (6) should be paid through the office of the Registrar of this Court on or before January 31, 2001.
9.       The submission of leave records to the Commissioner of
Labour ordered under paragraph 5 should be effected on or before January 15, 2001 and the mediation should commence as soon thereafter as may be practicable.
10.      The refund referred to under paragraph 7 above should
be made through the office of the Registrar of this Court
on or before March 30, 2001."
There is no application to appeal against the computation of any of the heads
relating to compensation. The principal submission by the Applicant is that the
court a quo should not have awarded compensation to the Respondent for both
severance pay and pension fund contributions.
Under Section 28 of the Employment Act Cap 47:01, an employer who is unfairly
dismissed is entitled to severance benefit, but that section was amended by Section
7(1 )(c) of the Employment Amendment Act of 1992 by substituting for proviso
(ii) of that section a new proviso which reads:
"Where, upon the date of payment of any severance benefit, the employee, or his dependent or beneficiary, is at that date or some future date entitled to the payment of a gratuity or pension or both a gratuity and pension in respect of the period of employment under the contract, no severance benefit which would otherwise be payable in terms of this section to the employee or his dependent or his beneficiary shall be payable."
The court a quo at page 38 of its judgment said:

16
"The purpose of proviso (ii) to Section 28 is to prevent employees from claiming both severance pay and pension."
The question is whether the Respondent was entitled to both payments. She
belonged to the Applicant's pension fund. Regular monthly deductions from the
Respondent's remunerations had been paid into that fund throughout her
employment and further contributions had been made by the Applicant.
The Conditions of Service at 19.4.1 stated:
"An employee whose contract of employment is terminated without notice shall be paid in respect of any outstanding leave due which has accrued during the period of service with the Society, and any reduced benefits which may be due in terms of the Rules of the Staff Pension Fund."
Rule 9 of the Pension Fund Rules states:
"If a Member terminates his service with the Employer before the Normal Retiremtnt Date and is not entitled to any other benefits under the Fund, he shall be entitled to a refund of his own contributions to the Fund, including any contributions transferred on his behalf from the Old Fund together with 5% simple interest thereon; provided that the employer may, at his absolute discretion, determine whether to pay to such withdrawing member a part or the whole of the employer's contribution in respect of such member."
This indicates that the Respondent is entitled to be paid a refund of her contributions to the Fund together with 5% simple interest. The Applicant submits

17
that a refund of her contributions to the Fund equates with a pension. The court a quo found that there was a distinction to be made between a refund of Fund contributions and a pension because the Respondent does not and will not in future ever qualify for pension because of the premature termination of her employment. The words used in Section 28(H) are "gratuity or pension". Neither word is, in my view, apt to cover a refund of pension contributions by an employee. I also have regard to the fact that the Conditions of Service at 19.4.1 refers to "any reduced benefits which may be due in terms of the Rules of the Staff Pension Fund". The return of contributions is a benefit to the Respondent but that benefit is neither a "gratuity nor a pension". I consider that the court a quo came to the correct decision on this issue. In these circumstances, Section 28(H) does not apply and the Respondent is entitled to compensation for her pension contributions and for severance benefit. But before concluding this matter, I turn to consider a further submission by the Applicant. They submit that the Pension Fund is run by Botswana Insurance Company (B.I.C) and that B.I.C is a separate legal entity. They submit that as B.I.C. was not made a party to the proceedings brought by the Respondent in the court a quo, there was no power for the court a quo to have ordered the Respondent to procure the refund of pension contributions.
I observe that the Applicant confirmed that the Pension Rules were binding on them. This is set out at the beginning of the Pension Rules. I also note that the

18
Conditions of Service at 19.4.1 state that the employee shall be paid any reduced
benefit which may be due in terms of the Rules of the Staff Pension Fund. As the
contract of employment was between the Applicant and the Respondent, 1 interpret
this condition to mean that the employee shall be paid by the Applicant, who is the
employer. I also bear in mind that the agreed summary of admitted facts that was
placed before the court a quo states:
"The Applicant (Respondent) was a member of the Pension Fund administered by the Respondent (the Applicant)."
Taking all these circumstances into account, I am satisfied that the court a quo had
overwhelming evidence on which to order the Applicant, to procure the repayment
of the pension contributions to the Respondent. I can find no arguable ground of
appeal on this head.
The Applicant's next submission is that the Respondent was not entitled to
compensation in respect of leave as she had failed to prove her entitlement. It is
true that she produced no evidence as to the number of days leave outstanding
when she gave evidence before the court a quo and the court a quo made that
finding, but that is not an end of the matter. I turn to consider the Trade Disputes
Act as amended. Section 17 of that Act reads:
"There is hereby established an Industrial Court, herein referred to as "the Court", with all the powers and rights set out in this Act or any other written law, for the purpose settling trade disputes and the furtherance, securing and

19
maintenance of good industrial relations in Botswana."
Section 19 reads:
"(1) The Court shall not be bound by the Rules of Evidence or procedure in civil or criminal proceedings and may disregard any technical irregularity which does not and is not likely to result in a miscarriage of justice.
(2) For the purpose of dealing with any matter before it, the Court may order any person to -
(a) furnish, in writing or otherwise, such particulars in relation to the matter as it may require."
These sections were considered in the case of Moeti St Others vs Botswana Meat
Commission Civil Appeal 37/98. Amissah, P at page 13 stated:
"It is significant that section 17(1) states the purpose of the Industrial Court as "settling trade disputes" and not "deciding trade disputes." It seems to me that settling a dispute is a wider power than deciding the dispute. The former implips an arbitral or mediatory rather than an adjudicatory role for the tribunal on which jurisdiction is conferred. It is not performing the task of a court, such as the High Court, in a civil case. The expression also means that the tribunal is empowered to settle disputes and has the power to take things into its own hands, and not sit back just to observe one party best the other. This is confirmed by section 19 recited above which frees the Industrial Court from being bound by the rules of evidence or procedure in civil or criminal proceedings, and gives power to the Court to disregard technical irregularities of justice. Further under section 19 (2), the Industrial Court is given power to order any person to furnish material required by it for the purpose of dealing with any matter before it; ordering persons to attend or to give evidence on oath or otherwise or to give evidence.

20
With such powers, the Court a quo, in a case in which it needs some relevant evidence, documents or material in order to settle the dispute before it, should, in my view, itself call for such evidence, document or material, if available or likely to be available, instead of proceeding as if it is the obligation of one of the parties before it to adduce the evidence or fail."
I add that Section 20(2) of the Act reads:
"If in the opinion of the Court, the points in issue in any matter before it or to be brought before it are not clearly enough defined to allow the matter to be heard or determined, or if, in the opinion of the Court, the parties have not made sufficient attempt to reach agreement, the Court may remit the matter to the parties, or to the parties and the Labour Commissioner, with such directions or advice as it may deem appropriate."
Applying the principles set out in these sections and in the case of Moeti I conclude
that the Industrial Court has very wide powers which fully entitled them to make
the order that they did relating to leave set out as Order 5. I would go further and
say that the application to appeal this head of compensation is devoid of merit.
I have thus concluded that there is no chance of success in any of the Applicant's grounds of appeal. In these circumstances, taking into account the delay, the lack of full explanation for the delay, and the flagrant procedural errors by the Applicant, I am of the opinion that the Applicant should not be granted leave to appeal out of time.

21
The Respondent applied to this Court for an award of attorney and client costs.
In Nel v Waterberg Landbouwers Ko-Operatieve Vereeniging 1946 A.D. 597 at
607, Tindall, J.A set out the principles applicable to such an award. He said:
"The true explanation of awards of attorney and client costs not expressly authorised by Statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case considers it just, by means of such an order, to ensure more effectually than it can do by means of such a judgment for party and party costs that the successful party will not be out of pocket in respect of the expense caused to him by the litigation."
At page 605, Tindall, J.A. cited the case of United Printing 81 Publishing Co. v.
"John Haddon 6C Co. Ltd. (1916, A.D. 474) and continued:
"In giving judgment on the question of costs, Innes, CJ. (in that case) remarked that the question of when a litigant should be penalised by an order of costs as between attorney and client is not an easy one to make a pronouncement upon, and that the circumstances would have to be very special to justify such an order in appeal proceedings."
The Waterberg case was cited with approval by the Full Bench of this Court in Botswana Defence Force and the Attorney General v. Oagile Merafhe Court of Appeal Civ App 13/2000. So these principles should be applied in Botswana.

22
Mr. Moupo submits that the question of costs is a matter for the court to decide but by inference implies that he resists the making of an order for attorney and client costs.
In considering this application I have taken the following matters into consideration.
(i) the original notice of appeal was filed out of time;
(ii) the notice of appeal was filed in the wrong court;
(iii) the Applicant has provided no mandate to their attorneys to prosecute this appeal;
(iv) there is no explanation for the original failure in January/February to file within time, namely, by January 25, 2000;
(v) there is no adequate explanation of the delay from May till July 2000;
(vi) there was no application to the Court of Appeal for condonation in July 2000;
(vii) the Applicant's heads of argument of 21 January 2002 was the first document to allege that the sole ground of dismissal was insubordination;
(viii) the admitted breaches of their own Conditions of Service;
(ix) the lack of merit in the application in respect of substantive and procedural unfairness;
(x) the lack of merit in the applications relating to compensation.
This Applicant has demonstrated a high degree of incompetence whether by
themselves or by their attorneys. As a result, the Respondent has been deprived of

23
her compensation for over a year through no fault of her own. I also take into account the comparative position of the parties, and the conduct of the Applicant from the first letter of 28 January 1998. I find that a consideration of all these matters puts this case fairly and squarely within the principles already set out. I would therefore make an order for attorney and client costs.
1 turn finally to an administrative matter. I would alter the date in Order 8 of the court a quo from 31 January 2001 to 30 March 2002. I would alter the date in order 9 from 15 January 2001 to 28 February 2002. I would alter the date in order 10 from 30 March 2001 to 31 April 2002.
Given in open Court at Lobatse this 30th day of January 2002.

I agree
I agree
SIR JOHN BtOFELD Judge of Appeal
P. H. TEBBUTT Ag. Judge President
N. W. ZIETSMAN Judge of Appeal

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/2002/5.html