IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE Court of Appeal Civil Appeal No. 33/02 High Court Civil Case No. F 386/1997 In the matter between: THE ATTORNEY GENERALAppellant And PATRICK DICHABENG AND OTHERSRespondents Mr. M. Lubinda for the Appellant Mr. G. Komboni for the Respondent
JUDGMENT
CORAM: TEBBUTT JP ZIETSMAN JA GROSSKOPF JA GROSSKOPF JA:
Patrick Dichabeng and 40 others claimed payment of arrear "commuted subsistence allowance" from the Attorney General in
his official capacity as legal representative of the Government in terms of the State Proceedings Act (Cap 10:01). The total sum
allegedly due to them by the Government amounted to PI 083 015.00.
The respondents (plaintiffs in the court a quo) were all Industrial Class Employees who were employed by the Department of Animal Health and Production, falling under the Ministry of Agriculture. The payment of commuted subsistence allowance to Industrial Class Employees was governed by the provisions of the Regulations for Industrial Employees (R.I.E.) issued in July 1975 and revised in February 1988. Paragraph 3.13 of the R.I.E. provides for two categories of workers:
Category I being "employees engaged for duty at an established depot, base or permanent camp. These employees can expect to return
to such places, or their houses nightly".
Category II being "employees who carry out work of any itinerant nature some distance from their establishment bases, depots
or camps or places of recruitment and cannot return to these places, or their houses nightly, but have to live in temporary camps
and work irregular hours".
Paragraph 3.16 of the R.I.E. provides for the payment of commuted subsistence allowance to category II employees in certain circumstances.
The paragraph reads as follows:
"In certain cases an employee is required to spend considerable time away from his duty station as part of his normal duties.
These absences on duty are consistent throughout the year, or throughout a particular season of the year, and are not occasional
absences. In such cases, and provided the absences are not less than fifteen days a month on average,
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a commuted rate of subsistence allowance is payable...."
The respondents were all stationed at Ngwasha camp. This camp was located in a remote area in the bush and far from any villages or
shops. It was approximately 250 kilometres from Francistown and 72 kilometres from Nata, the nearest village. The workers who stayed
at Ngwasha did not have their own water supply but had to rely on water transported from Francistown or obtained from a neighbouring
wildlife camp in case of an emergency.
Mr. Malebogo Tshotlego (PWl) was the only witness who testified on behalf of the respondents. He was a gatekeeper who worked near
the camp at the Ngwasha gate. The gate was part of a veterinary fence erected and maintained to control animal movement and the spreading
of animal diseases such as foot and mouth disease. The respondents were accommodated at Ngwasha camp in tents and shacks made of
corrugated iron sheets or asbestos sheets. They were each allocated one shelter of limited size. Some of the respondents built themselves
additional mud huts. The shelters which were provided were too small to accommodate the respondents' families. The ablution facilities
were inadequate and the respondents were generally living under harsh conditions. The main issue in this case was whether the respondents'
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camp at Ngwasha was their permanent or base camp as opposed to a temporary camp. I shall return to this aspect in due course.
It was admitted by the appellant in the plea and at the pretrial conference that up to 31 March 1994 all the respondents were being
paid commuted subsistence allowance. The respondents alleged that they were being paid this commuted subsistence allowance prior
to 1 April 1994 regardless of whether they ever left the camp on duty or not. It is their case that they were receiving commuted
subsistence allowance simply because they were being accommodated temporarily at Ngwasha camp as part of their normal duties, and
therefore spending all their time away from Francistown, their alleged designated duty station. They allege that they were accordingly
entitled to payment in terms of paragraph 3.16 of the R.I.E. quoted above. I should mention in passing that there is no substance
in the allegation by the witness PW1 that the commuted subsistence allowance was paid to them because of the poor accommodation provided
at Ngwasha camp. Inadequate housing only became a relevant consideration after December 1996.
The appellant on the other hand denied that the commuted subsistence allowance which the respondents had received prior to 1 April
1994 had been paid to them because their accommodation at Ngawsha camp had been temporary. It is the appellant's case that the respondents
qualified
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for such commuted subsistence allowance prior to 1 April 1994 because there had been an outbreak of foot and mouth disease which required
them to spend considerable time away from their camp as part of their normal duties. Once the disease was brought under control the
Department stopped the payment of commuted subsistence allowance altogether. This was done by means of a circular dated 28 February
1994 from the Director of Animal Health and it reads as follows:
"COMMUTED SUBSISTENCE ALLOWANCE
We have discussed this issue in several meetings and from your reports. It seems it is no longer necessary to continue paying commuted
subsistence allowance.
I have therefore decided that with effect from 1st April 1994 no commuted [subsistence] allowance will be paid to any staff of this department. This includes both Permanent and Pensionable
staff and Industrial Class staff.
Officers who feel that their staff work under conditions which require them to draw commuted subsistence allowance should notify this
office before 31st March 1994".
It is common cause that employees who qualified were still entitled to claim ordinary subsistence allowance in appropriate circumstances
after 1 April 1994. Payment of commuted subsistence allowance was however only resumed in January 1997. It was then paid to compensate
those
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employees who were living in field camps without being provided with adequate housing.
The respondents claimed payment of commuted subsistence allowance from 1 April 1994 to 31 December 1996, that is for the period during
which the department had stopped all payments of commuted subsistence allowance. In order to succeed in terms of paragraph 3.16 the
respondents had to show, inter alia, that they were category II employees who were required to spend considerable time away from
their duty station as part of their normal duties and who were obliged to live in temporary camps.
The crucial question is whether Ngwasha camp was merely a temporary camp as alleged by the respondents. They claimed that Francistown
was their designated duty station and while they lived in Ngwasha camp they were spending all their time away from their duty station.
The Court a quo found that Ngwasha camp had all along been a temporary camp and therefore not a duty station, the duty station being Francistown.
The Court a quo further held that the respondents were required to live at Ngwasha camp away from their duty station and that they were therefore
entitled to commuted subsistence allowance. Judgment in the full amount claimed was granted in the respondents' favour.
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The Court a quo in my view erred in this respect. I do not agree that the respondents have proved that Ngwasha was merely a temporary camp or that
Francistown was the respondents' duty station.
This Court had occasion to consider the meaning of the phrase "duty station" in the case of Jansen and Others v The Attorney General 1996 BLR 847 and concluded as follows at 853 C - H:
"The present litigation is clearly a case where evidence of surrounding circumstances is admissible to ascertain the meaning
of the phrase "duty station". There is no "plain meaning" or "dictionary meaning" which will give it
a content which will enable one to decide under what circumstances commuted subsistence allowances are payable. It is thus necessary
to have regard to the circumstances which exist and against the background of which paragraph 3.16 was drafted and the phrase "duty
station" used....
The main objection to the acceptance of the submission that duty stations are confined to the three permanent camps where employees
are first engaged is its arbitrariness. There seems to be no practical reason for drawing a distinction in the payment of allowances
between the camp where the employee is taken on strength and a base camp where facilities exist which make a reasonable degree of
comfort available to the work force. Base camps, it would appear, are normally in existence at the same place for a period of more
than a year. The facilities, though not luxurious, are reasonable. It appears to be the case that a commuted subsistence allowance
is payable as some form of recompense for simple and hard living. It
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would, in my view, be appropriate to draw the line between camps which do not attract commuted subsistence allowance and those that
do at the point between base camps and forward or flying camps and not between permanent urban camps and base camps. This is straightforward
and practical and is not purely arbitrary as is a division at the point where the employee was engaged and other camps."
It appears that Ngwasha camp has been used for many years to accommodate the workers who erected and controlled the veterinary fence.
In my view it can hardly be described as a temporary camp when it has served as a camp for so many years. The respondents in fact
lived there permanently. The witness PW1, for instance, was first posted to Ngwasha in 1989 and he has lived there ever since. It
is true that the living conditions were spartan but each one of the respondents had at least been provided with his own accommodation.
The Chief Livestock Officer, Mr. Marumo, was witness DW1. According to his evidence Ngwasha was a base camp. He was stationed at
Francistown and he referred to Francistown as his duty station. In my view Ngwasha camp was more than a temporary camp. I would describe
it as a base camp.
I am further of the view that the respondents have failed to prove that Francistown was their "duty station". Mr. Marumo
confirmed under cross-examination that the recruitment of staff for the Ngwasha camp and eight other camps was done at the Francistown
office and that
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instructions emanated from there. The salaries of the workers at Ngwasha camp were also paid by the Francistown office. Yet according
to Mr. Marumo Francistown was not the duty station of Ngwasha and the other eight camps. The witness Dr. Chimbombi testified as DW2.
He was deputy director in the Ministry of Agriculture. He referred to the various camps, and not to Francistown, as the duty stations.
The abovementioned testimony of these two witnesses was not challenged in cross - examination. There seems to me to be no reason
in any event why Francistown and not Ngwasha should be regarded as the duty station of all the employees working and residing at
Ngwasha camp. I therefore find that the respondents failed to prove that Ngwasha was nothing more than a temporary camp and that
Francistown was their duty station. They accordingly also failed to prove that they were entitled to receive commuted subsistence
allowance in terms of paragraph 3.16.
It should however be borne in mind that the circular of 28 February 1994 stopped payment of commuted subsistence allowance altogether,
whether in terms of paragraph 3.16 or on any other ground whatsoever. Counsel for the respondents submitted that the circular stopping
payment of this allowance was unlawful for a number of reasons. I need not decide this point since the respondents have failed in
any event, as held above. The appeal should therefore be upheld. The following order is made:
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1.
The appellant's appeal is upheld with costs.
2.
The order of the Court a quo is set aside and the following order is substituted in its place:
"The plaintiffs' claim is dismissed with costs."
DELIVERED IN OPEN COURT AT LOBATSE THIS 30th DAY OF
JANUARY 2004.
F. H. GROSSKOPF JUDGE OF APPEAL
I agree
..
P. H. TEBBUTT
JUDGE PRESIDENT
I agree
N. W. ZIETSMAN JUDGE OF APPEAL
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