Matlhare v The Attorney General (Civil Appeal No. 7 of 202) [2003] BWCA 17 (31 January 2003)

[Home] [Databases] [WorldLII] [Search] [Feedback]
Botswana: Court of Appeal

You are here: SAFLII >> Databases >> Botswana: Court of Appeal >> 2003 >> [2003] BWCA 17

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

Matlhare v The Attorney General (Civil Appeal No. 7 of 202) [2003] BWCA 17 (31 January 2003)

.PDF of original document

.RTF of original document

IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No. 7/2002 High Court Civil Case No. 1697/1999
In the matter between:
LEORNARD MATLHARE Appellant
and
ATTORNEY GENERAL Respondent
Mr. V. Moupo for the Plaintiff
Miss G. Taunyane for the Respondent
JUDGMENT
CORAM: TEBBUTT, J.P. ZIETSMAN, J.A AKIWUMI, J.A.
AKIWUMI J.A.

The appellant was employed by Unified Local Government Service on permanent and pensionable terms and by 1996, had been promoted to the rank of Principal Remote Area Development Officer. The appellant received a letter from the Establishment Secretary of the Unified Local Government Service dated 16^th February, 1999, informing him that his retirement in terms of Section 12 (3) of the Unified Local Government Service Act (hereinafter referred to as "the Act") was being considered. This section

grants the "appointing authority" the discretion to retire in the interests of the service, a local government officer who has attained the age of 45 years, from the local government service.

The appointing authority at the time was the then Establishment Secretary, Mrs Rathedi, who could under the following provisions of Section 6 (1) of the Act retire the appellant:

"6.(1) The power to appoint officers in the local

government service, to exercise disciplinary control over and to remove from office in the local government service shall rest in the Establishment Secretary in accordance with this Act and any regulations made thereunder:

Provided that in respect of senior officers such powers shall only be exercised with the consent of the Minister."

I will now set out in full the letter of 16^th February, 1999, which the Establishment Secretary, in compliance with Regulation 9 of the Unified Local Government Service Regulations (hereinafter referred to as "the Regulations"), conveyed to the appellant, her intention to retire him from the service :

Dear Sir
YOUR LOCAL GOVERNMENT SERVICE

After careful consideration of your career record, I wish to inform you that your retirement in the interest of the service in terms of Section 12 (3) of the Unified Local Government Service is under consideration.

The reason for this is that your performance and attitude in the Remote Area Developments Programme over the years has been poor.

Your performance as the Co-ordinator of Kaudwane Settlement Programme particularly left much to be desired and confirmed that you were not making any effort to improve your previous record of inefficiency.

When the Ministers visited Kaudwane settlement in 1997, the progress report which you presented on the resettlement of the Remote Area Dweller at Kaudwane reflected poor performance, poor co-ordination and a weak implementation of the programme. Your report demeaned the Council as it was your responsibility as the Coordinator of the programme to ensure that the resettlement went on as smoothly as possible. Notwithstanding the poor standard of your report, you appeared not concerned or conscious about higher authority and accountability on your part.

Unfortunately your performance continues to be characterized by laxity even when assigned other responsibilities. I wish to remind you that all Public Officers must perform to their expected levels to honour and implement Government decisions.

You are given up to the 5 March 1999 to make representation of a personal nature on the matter if you so wish.

Yours faithfully
K D Rathedi ESTABLISHMENT SECRETARY"

It is important to note that the crux of this letter was that the retirement of the appellant was being considered because of his poor performance as the Co-ordinator of the Kaudwane Settlement Programme".

The provisions of Regulation 9 of the Regulations are now worth considering. These are:
"9. (1) If it appears to the Establishment Secretary

that there is reason why an officer who may be called upon to retire under the provisions of section 12 (3) of the Act should be called upon to retire, the Establishment Secretary

shall advise the officer that his compulsory representation of a personal nature on the matter.

(2) The principal officer shall forward such
representations, if any, together with his own observations, to the Establishment Secretary who will decide whether such officer should be called upon to retire."
It is clear from these provisions that the appellant had to be informed of the
reason why his early retirement was being considered (as was done in the
Establishment Secretary's letter of 11^th February, 1991) and given the
opportunity to make representations. The principal officer shall then
forward these representations to the Establishment Secretary " with his own
observations." The Establishment Secretary will then decide after
considering the appellant's representation and the principal officer's
observations, whether the appellant should be retired prematurely.
Although these do not amount to disciplinary proceedings, there is no doubt
that the Establishment Secretary in making her decision must act in a quasi
judicial manner. Not only should the Establishment Secretary weigh
carefully the evidence before her, including the representation of the
appellant, but should also give the appellant "fair opportunity to correct or
controvert any relevant statement brought forward to his prejudice". In
other words the appellant should be given the opportunity (which was not
done) to make his comments on the observations of the principal officer.
Makgoena v Attorney General (1987) BLR 518.
In his letter of 5^th March, 1999, in reply to that of the Establishment Secretary, the appellant in a detailed, lengthy letter specifically denied the
4

allegation of alleged poor performance as the Co-ordinator of the Kaudwane Settlement Programme. He made the important submission that it was "erroneous to accuse" him "of failing as a Co-odinator since I was never given that portfolio in the Kaudwane relocation exercise", and averred, significantly, that "I clearly disagree to submit being reprimanded for failing to perform a task which I was never assigned." The appellant then described his role only as head of a department responsible for the implementation of projects of Kaudwane and detailed the problems that affected the implementation of the projects. The appellant also asserted, and this was not denied, that none of his supervisors had ever reprimanded him for "laxity, inefficiency and poor performance". Clearly the Establishment Secretary had to consider carefully the appellants' representations and to give him a fair opportunity to controvert any relevant prejudicial statements made by the principal officer before making her final decision. The Establishment Secretary's final decision which is contained in her letter of 8^th April, 1999, to the appellant is as follow:

"Mr Leornard T Matlhare Kweneng District Council Private Bag 5 MOLEPOLOLE
ufs Acting Council Secretary

Please refer to your letter dated 5^th March 1999 which was in response to my US 2586 II (25) dated 16^thFebruary 1999.

I have considered your representation, but despite that I have decided to go ahead and retire you in the interest of the service in terms of Section 12 (3) of the Unified Local Government Service Act - Cap 40:06.

You will serve retirement notice from 1^st May 1999 to 31^stJuly 1999. Your retirement will therefore take effect from 1^st August 1999.

We wish you luck in your future endeavours. Yours faithfully
K D Rathedi Establishment Secretary
cc: Permanent Secretary - MLGL & H"
It appears from this letter that the Establishment Secretary considered only
the representations of the appellant in his letter of 5^th March, 1999, which
as I have observed, were related to several issues which required further
investigation by the Establishment Secretary before she could come to a
reasonable, rational and sensible decision. But no mention of that
whatsoever is referred to in her letter. Indeed, the Establishment Secretary's
assertion in her letter that:

"I have considered your representation; but despite that I have decided to go ahead and retire you in the interest of the service...",

supports the inference that the Establishment Secretary had taken her
decision to retire the appellant without caring to find out whether the
6

appellant's representations constituted a reasonable defence to the allegation of poor performance as the Co-ordinator of the Kaudwane Settlement Programme, which designation the Establishment Secretary had not even bothered to employ, in any of her letters to the appellant. It also appears that the Establishment Secretary did not take into consideration the observations of the principal officer, which Regulation 9.(2) obviously also requires the Establishment Secretary to consider before making her decision and which, if they contained any matters adverse to the appellant, the Establishment Secretary in the exercise of her quasi judicial role, was bound to give the appellant the opportunity to answer. Nothing like this was ever done.

It is not therefore surprising that the appellant challenged in the High Court his retirement by the Establishment Secretary and in which he sought the following relief:

"(a) Declaring the purported retirement unlawful and of no
force and effect and setting aside the letter dated 8^th April 1999 which purported to compulsorily retire Plaintiff;
(b) An order directing re-instatement of Plaintiff to his
employment upon the same terms and conditions
that were applicable before termination of employment.
( c ) Cost of suit to be borne by Defendant."
In his evidence before the court a quo, the appellant gave important
evidence which was not challenged. Indeed, the respondent chose not to
cross-examine the appellant. The relevant parts of his evidence are as
follows:
7

"MOUPO: Now, the letter says (sic), from the Establishment Secretary, says you performed very poorly with respect to that project and you gave a very poor report. Can you tell this court whether you agreed with the Establishment Secretary's assessment of your performance?

PW1:     That is not correct.
MOUPO: And what is the true position?
PW1:     The District Commissioner who was a Coordinator for that
project was the person who was to give a report.
MOUPO: Yes proceed
PW1:     That project was done by all the departments of the government.

He was the Coordinator and he was the task force for the district. All the departments will compile the report then he will consolidate the report and made the report.

COURT: They are talking about a report which you made, paragraph 3,
the Establishment Secretary is talking about the report which
you made in your capacity as the Principal Remote Development
W Officer.

PW1: I was not to do a single report on my own alone and present it to

these people.

COURT: Let me understand this properly. This is what they say When the Ministers visited Kaudwane settlement in 1997, the progress report which you presented on the resettlement of the Remote Area Dweller at Kaudwane reflected poor performance, poor coordination and a weak implementation of the programme. Your report demeaned the Council as it was your responsibility as the

Co-coordinator of the programme to ensure that the resettlement went on as smoothly as possible. Notwithstanding the poor standard of your report, you appeared not concerned or conscious about higher authority and accountability on your part."

That as I read the letter of the 16^th is the main complaint against you.

MOUPO: Do you understand? Have you understood?

PW1:
I understand.

COURT: Yes. They say when Ministers were there you gave a report which reflected very poor performance. This is what they are saying and they say you were the Co-coordinator of the programme and I think what counsel was asking you was whether (sic) were your responses to this allegation?

PW1:
It is not correct because I never made any report.

COURT: Are you saying you were not the Co-ordinator? You say it was the District Commissioner?

PW1:
MOUPO:
The District Commissioner was the Co-ordinator. I was a head
for my department. There were many departments in this
project.
Mind you, you were the Principal Remote Development Officer,
are you saying that, it was not one of your duties to co-ordinate
this project, this Kaudwane settlement?

PW1: I was not a Co-ordinator for the development of this Kaudwane I
was only the head of a department. I was only looking at my department.
MOUPO: So the accusation that you were the Co-ordinator and you failed to give a proper report, is it true or false?
PW 1: No, it is not true."
This evidence denied the allegation of the appellant's poor performance as the Co-ordinator of the Kaudwane Settlement Programme. This was not challenged in cross examination. The inevitable conclusion is that the appellant's evidence, and which the respondent must be deemed to have admitted, and which is also what was stated in his letter of 5^th March, 1999, to the Establishment Secretary, represented the true state of affairs. On that basis alone, the Establishment Secretary's retirement of the appellant was contrary to the relevant provisions of the Act and the Regulations.
The appellant also produced his last annual Staff Performance Appraisal report for the year 1998, which he said had been made by his supervisor, Louis Sebeo, the Deputy Council Secretary. This evaluation report which was also not challenged in cross-examination, showed that the appellant's performance was above average. It was only when Sebeo was giving evidence for the respondent that he denied that he had made the appellants' Staff Performance Appraisal report. At no stage in his evidence did Sebeo assert that the appellant was the Co-coordinator of the Kaudwane Settlement Programme. He, however, stated that the appellant's performance as Principal Remote Area Development Office was poor.

He had only verbally reprimanded the appellant. He had at the request of the Establishment Secretary written to her about the appellant's poor performance and the appellant allowing council trucks to be used to transport cattle belonging to private individuals. The contents of this letter which Sebeo had written to the Establishment Secretary in compliance with Regulation 9 (2), was as already observed, never brought to the attention of the appellant so as to give him the opportunity of responding to them. The Establishment Secretary, Mrs Rathedi, also gave evidence for the respondent . She reiterated what she had stated in her letter of 8^th April, 1999, to the appellant and said that after receiving the appellant's representations she sought comments on them from the Council and the Permanent Secretary who had said rather vaguely to the appellant's detailed representations merely that "Mr Matlhare's representations are not a true reflection of what was actually happening". Though the Establishment Secretary also did not, in her evidence, refer to the appellant specifically as the Co-ordinator of the Kaudwane Settlement Programme, she nevertheless stated and without giving any reasons for it, that it was reasonable for her to retire the appellant on the basis of the comments which she received from the Secretary of the Kweneng District Council and the Permanent Secretary of the Ministry of Local Government, who was her "boss". She did not bother to seek the appellant's responses to these comments. The Establishment Secretary also said that she had not accepted the appellant's representations because of his track record even though this was not alleged in her letter of 16 February, 1999, that the appellant had in the past when he was stationed at Ghanzi, inflicted
11

corporal punishment in Basarwa girls. The Establishment Secretary improperly took account of a matter which was irrelevant to the accusations contained in her letter of 16 February, 1999.

In his judgment, the judge a quo, reviewed the evidence given before him and referred to the fact, and this is important, that the evidence given by the appellant including his assertion that he was not in the first place, the Coordinator of the Kaudwane Settlement Project as alleged and whose performance as such was said to be poor, was not challenged in cross-examination. This alone undermines the credibility that can be attributed to the Establishment Secretary's letter of 16 February, 1999, which is the founding document in the process of the appellant's retirement. The judge a quo in his judgment in which he dismissed the appellant's action, however, made the following observation which supports my view that the appeal must succeed:

"Where a statute gives a public authority a discretion to exercise power in regard to another person, that public officer is required to exercise that power judicially and reasonably, in particular, the public authority is required to observe the rules of natural justice when exercising the discretion conferred upon him or her by a statute. In general, when a public authority has followed the right procedure in arriving at a decision to retire an officer, the Court will not interfere to reverse the decision taken by that authority even if in its own judgment it would have taken a different decision..."

But did the Establishment Secretary act judicially and observe the rules of
natural justice when exercising her discretion whether to retire the
appellant? I would say, not. Apart from the fact already adverted to, that
the appellant's evidence was not challenged thus lending credence to the
proposition that the allegations made against him in the Establishment
12

Secretary's letter of 16^th February, 1999, were unfounded, the Establishment Secretary failed to act judiciously in not making available to the appellant for his comments, the written unfavourable comments of the Kweneng District Council and the Permanent Secretary. Indeed, the fact that Regulation 9. (2) provides that the "principal officer" shall forward to the Establishment Secretary the appellant's representations together "with his own observations" puts it beyond doubt that such observations should be presented to appellant for his comments. The definition of "principal officer" in Section 2 of the Act excludes the Permanent Secretary of the Ministry of Local Government who is also an interested party in the matter. The Establishment Secretary was fatally wrong in even considering and relying on the observations of the Permanent Secretary who was not a principal officer and also without affording the appellant the opportunity of responding thereto. In so doing she ignored the rules of natural justice.

The appeal is accordingly allowed, with costs for the appellant, and an order is made in the following terms:

The purported retirement of the appellant is declared unlawful and the letter of 8^th April 1999 which purported to compulsorily retire the appellant is set aside.

The appellant is re-instated to his employment with effect from 8^thApril 1999 upon the same terms and conditions that were applicable before the termination of his employment.

That respondent is ordered to pay the appellant's costs in the proceedings before the High Court.
4. The respondent is ordered to pay the appellant's costs of this appeal.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 31^stDAY OF JANUARY 2003.

I agree,
A. M. AKIWUMI (JUDGE OF APPEAL)

P. H. TEBBUTT (JUDGE PRESIDENT)

I agree,
N. W. ZIETSMAN (JUDGE OF APPEAL)

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/2003/17.html