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Patle and Another v Botswana Civil Service Association (Civil Appeal No. 24 of 202) [2003] BWCA 4 (1 January 2003)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No. 24 of 2002 High Court Misc. Application No. 305 of 2001
In the matter between:
OAITSE PATLE     First Appellant
GODFREY DINTWA   Second Appellant
and
BOTSWANA CIVIL SERVICE ASSOCIATION Respondent
Mr. Y. D. Petkar for the Appellants Mr. B. Maripe the Respondent
JUDGMENT
CORAM: TEBBUTTJ.P.
LORD SUTHERLAND J.A. GROSSKOPF J.A.
GROSSKOPF, J.A.
This matter concerns the validity of certain acting appointments made by the respondent's Central Executive Committee in January 2001, the respondent being an association of civil servants established interms of its constitution.

Article 12 (c) of the respondent's constitution makes provision for
a Central Executive Committee (CEC) consisting of the following
nine office-bearers:
President, Vice-President, Secretary-General, Assistant Secretary-General, Treasurer, Publicity Secretary, Recording Secretary and two additional members.
These nine office-bearers were duly elected on 8 December 2000 at the Annual General Conference of the respondent. Thereafter and during January 2001 the Vice-President of the CEC tendered his resignation thus creating a vacancy within the CEC The CEC then decided that its Secretary-General should act as Vice-President.
The appointment of the Secretary-General as acting Vice-President had a domino effect in that the Assistant Secretary-General was then appointed acting Secretary-General while an additional member of the CEC was appointed as acting Assistant Secretary-General. The CEC gave notice in writing of these acting appointments to all the respondent's branches on 16 January 2001. The appellants, who were members of the respondent, accepted that the resignation of the Vice-President caused a vacancy, but contended that the members of the CEC
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created the other vacancies by promoting themselves to higher positions.
The appellants eventually launched their application in August 2001 against the respondent. In addition to seeking other relief, which is not relevant to this appeal, the appellants applied for an order declaring the acting appointments by the CEC to be contrary to the respondent's constitution and therefore invalid. The Court a quo granted the appellants certain other relief but held that the CEC acted within its powers in making the acting appointments. The appellants appealed against that part of the order which declared the acting appointments valid.
It is common cause that the CEC has the power in terms of
article 12 (d) of the respondent's constitution to fill a vacancy by
appointing a member of the CEC, or by co-opting a member of
the respondent association, to act in that vacant position. Article
12 (d) reads as follows:
"In the event of a vacancy or vacancies in any of the above positions before the expiration of the period of office, the Central Executive Committee shall have the power to cause acting appointments from either among themselves or by co-opting a member or members of the Association to fill such office or offices until the next Annual General Conference when the appointments shall either be confirmed or revoked by
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the Conference, except that if the vacancy or vacancies occur when the Conference is still sitting it may fill such a vacancy or vacancies during that session of the Conference."
Mr Petkar, who appeared for the appellants, accepted that the CEC could make acting appointments, provided that there were vacancies to be filled. He submitted that there was only one vacancy when the CEC decided on the acting appointments in January 2001, namely that of Vice-President. Counsel maintained that the Secretary-General retained his position as Secretary-General when he accepted the post of acting Vice-President and that the office of Secretary-General therefore never became vacant. The Secretary-General did indeed not resign as Secretary-General, but the vacancy was for an acting Secretary-General. The respondent's constitution sets out in detail the duties of the various office-bearers of the CEC Article 13 (d) of the constitution provides that the Assistant Secretary-General shall act as Secretary-General in the absence of the Secretary-General. The CEC therefore acted in the spirit of the constitution when they appointed the Assistant Secretary-General to act as Secretary-General.
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Counsel for the appellants further submitted that there was no reason why one person could not perform the duties of both Vice-President and Secretary-General at the same time, but the constitution in my view specifically provides for the separation of duties. Article 13 (b) for instance provides that the Vice-President shall discharge the duties of the President during his absence. On counsel's argument this would mean that one person would have to perform the all-important duties of both Vice-President (and even President) and Secretary-General. It would further mean that the number of office-bearers would be reduced to eight. In my view that could never have been the intention when the duties of each office-bearer were set out in detail in article 13 of the constitution.
The President of the CEC is entitled in terms of article 13 (a) to countersign respondent's cheques in conjunction with either the Treasurer or the Secretary-General. The Vice-President shall, in terms of article 13 (b), discharge the duties of the President during his absence. On counsel's argument the acting Vice-President would therefore be entitled, in the absence of the President, to countersign cheques which he himself had signed as Secretary-General. That would surely not accord with the
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spirit of the constitution on which counsel for the appellants seeks to rely.
For the reasons set out above I do not agree with counsel's submission that there were no vacancies for the acting appointments other than the vacancy for a Vice-President. I therefore do not agree that the CEC did not act within its powers, as set forth in the constitution, when it made the acting appointments.
It was further argued on behalf of the appellants that the CEC was in effect promoting some of its members illegally. It is common cause that the resignation of the Vice-President created a vacancy and that the Secretary-General was appointed acting Vice-President. It does not appear from the papers on what grounds this acting appointment was alleged to have been an unlawful promotion. I have already observed that the CEC was actually complying with the spirit of the constitution when the Assistant Secretary-General was appointed to act as Secretary-General. It should further be borne in mind that these officebearers were merely acting in their new positions until the next Annual General Conference when their appointments could either
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be confirmed or revoked by the Conference. They were in fact confirmed. I should also point out that article 12 (d) of the Constitution specifically enjoin that acting appointments be made in the first instance from among the CECs own members. This was in fact done. And there is no evidence to show that the members of the CEC acted in their own interest and not in furtherance of the respondent's interests.
For the reasons set out above I therefore reject the argument that the members of the CEC were actually promoting themselves contrary to the spirit of the constitution.
I am accordingly of the view that the acting appointments made by the CEC in January 2001 were validly made.
In the result the appeal is dismissed with costs.
DELIVERED IN OPEN COURT AT LOBATSE ON THE .... DAY OF JANUARY 2003.
F. H. GROSSKOPF JUDGE OF APPEAL
I agree,        
P. H. TEBBUTT JUDGE PRESIDENT
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I agree,
LORD R. I. SUTHERLAND JUDGE OF APPEAL

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