Botswana Unified Local Government Service Association v The Attorney General (Civilv Appeal No. 09 of 205) [2005] BWCA 15; [2005] 2 B.L.R. 230 (CA) (27 July 2005)

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Botswana Unified Local Government Service Association v The Attorney General (Civilv Appeal No. 09 of 205) [2005] BWCA 15; [2005] 2 B.L.R. 230 (CA) (27 July 2005)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE

COURT OF APPEAL CIVIL APPEAL NO. 009 OF 2005 MISCELLANEOUS CIVIL APPLICATION NO. 303 OF 2004

In the matter between:
BOTSWANA UNIFIED LOCAL GOVERNMENT
SERVICE ASSOCIATION APPELLANT
and
THE ATTORNEY GENERAL RESPONDENT
Mr. V. Moupo for the Appellant Mr. M. Chamme for the Respondent
CORAM: K.R.A. KORSAH J.A
F.H. GROSSKOPF J.A. S.A. MOORE J.A.
JUDGMENT
MOORE J.A.
This matter began by Notice of Motion in which the Appellant prayed for the following orders:

" 1. Declaring that the Job Evaluation exercise undertaken by the Government for the Local Government Service following an order of this Honourable Court dated the 20^th October 1999 in Civil Case No. CC 1825 of 1995 was conducted in violation of the said Court Order.

Directing the Establishment Secretary to exercise his powers in terms of Section 5(2) of Cap 40:06 forthwith and in particular to determine the gradings and salaries and/or allowances of the staff of the Unified Local Government Service in accordance with the order of this Honourable Court in Case CC 1825/1995.

Declaring that the Applicant is entitled to be meaningfully consulted by the Respondent about the effective date of the implementation of the said gradings and salaries and/or allowances after the determination referred to in paragraph 2 above.

That Local Service Management Directive No. 3 of 2003 issued by the Establishment Secretary in pursuance of the said Job Evaluation exercise is declared null and void and accordingly set aside.

That the Respondent pays the costs of this application.

Granting the Applicant such further and/or alternative relief as to the Honourable Court deems fit (sic)."

The Notice of motion was supported by a founding affidavit to which the Respondent filed its own answering affidavit. The appellant then responded with an affidavit in reply. The matter was heard by the learned Chief Justice who gave a full judgment dealing with the issues. This Court is grateful to him for establishing the background to the existing controversy by carefully tracing the history of the events leading up to it. The appellant was dissatisfied with the judgment of the learned

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Chief Justice and so it filed a Notice of Appeal and set out the grounds upon which it based the appeal in the following manner:

"4.1 The court a quo erred in fact in finding that the Appellant was represented by its two highest ranking officials in the Lower Panel of the Job Evaluation exercise, when that is not correct.

4.2 The court a quo erred in finding that the Secretary did not abandon his powers to determine the Grades of Local Government Officers to the Upper Panel of the Job Evaluation whereas he was in fact co-opted by the Panel, in determining the grades.

4.3

The Court a quo erred in failing to find that the role of the Directorate of Public Service Management in the Upper Panel was clearly contrary to paragraph 3 and paragraph 6 of the 1999 Court Order, in that it is the Upper Panel which effectively determined the grades and the Director participated in that exercise.

4.4

The Court a quo failed to realize that from the conduct of the Respondent in the Job Evaluation exercise, and from its explanations in Court, it had no intention to comply with the 1999 Court Order."

THE PRESIDENTIAL DIRECTIVE

If one refrains from delving into pre-history, the genesis of the dispute may be said to lie in a directive emanating from the Office of the President. Presidential Directive CAB 2/84 reflected that His Excellency the President had made the decisions set out in the directive as a result

of advice tendered to him at the 2^nd meeting of the Cabinet held on Wednesday 25^th January, 1984. The decision of the President, in whom the executive powers of Botswana is vested, was made in the lawful exercise of his powers under sections 47 and 50 of the Constitution.

The extrapolation of salary scales was expressly excluded (see decision iv). Decision viii permitted the estimation of O & M and job evaluation as at present. Decision ix provided that the two assessment panels should be set up under the chairmanship of the Permanent Secretary to the President (Upper panel) and the Director of Personnel (Lower panel) to deal with gradings of superscale and below superscale jobs respectively. Decision x provided that the job evaluation programme should convene with some increased professional resources and with additional resources on a self-help basis.

THE CONSENT ORDER DATED 20™ OCTOBER 1999

The appellant has for many years harboured in its breasts feelings that its members were being treated like foster children whereas employees of the central government were being preferred as favourite sons. The learned Chief Justice says at page 10 of his judgment that "it was this perception which eventually led it to institute proceedings in case 1825/95 resulting in the grant of 1999 Order."

The Order of Wednesday 20^th October 1999 is a consent order. The parties are to be commended for working it out. Such orders are usually the result of efforts of parties and their legal advisors to settle their differences without the resort to further litigation. But sadly, as in the instant case, further difficulties may arise about the meaning of the order itself, or as to the manner in which the agreement is to be, or is being, implemented. Unhappily, as here, some parties find themselves impaled upon the hazard which they sought to avoid, the hazard of a trial.

The order, which has caused so much grief to the parties, was not crafted in language of the greatest precision and exactitude. The learned Chief Justice expressed this view when he said at page 35 of his judgment:

"The language of the order agreed by the parties and presented for confirmation by the presiding judge without any discussion in court was not exactly precise and is apt, as it has done, to cause a difference of opinion."

The first four paragraphs of the Order appear to have caused the greatest difficulty of interpretation and implementation. They read:

"1. The Lower Panel constituted in terms of
paragraph (ix) of Presidential Directive No.
CAB 2/84 dated 26^th January 1984 ought
to include meaningfully the

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representatives of the Plaintiff and the Establishment Secretary.

The Panel aforesaid, reconstituted as above provided, commence within a reasonable time the re-assessment of grades to be identified under the Unified Local Government Service following the submission of revised job descriptions. The aforesaid grades shall be identified by the Local Government Joint Staff Consultative Council.

Following such re-assessment, and taking due cognizance of the same, the Establishment Secretary is to expeditiously determine the grades concerned in terms of the powers and functions given by Section 5 (2) of the Unified Local Government Service Act Cap 40:06.

Professionals under the Unified Local Government Service should progress to the same grade as their counterparts in Central Government, provided that no professionals under the Unified Local Government Service shall progress, at any given time, to the same or a grade higher than that occupied by his or her supervisor in the Service."

THE ESTABLISHMENT SECRETARY

The Establishment Secretary is a creature of statute. That office was created by Section 5(1) of the Unified Local Government Service Act Cap. 04:06 intituled "An Act to provide for the establishment of a Unified Local Government Service which shall be the sole employer of certain Local Government employees and for matters connected therewith and

incidental thereto." Under section 2 of the Act "Establishment Secretary" means the Establishment Secretary appointed under section 2. Under section 2(2):

"The Establishment Secretary shall have vested in him the administration of the local government service and without prejudice to the generality of the foregoing shall be responsible for-
(a)

conditions of appointment and terms of service;
(b)     recruitment, transfer and promotion of officers;
(c)     staff complements and gradings;
(d)     administration, structure and assessment of salaries;
(e)     local authority service training policy;
(f)     discipline, staff training and welfare;
(g)     localization and staff development and methods;
(h) staff inspections and organization and methods;
(i) allowances and the policy with regard to gratuities."
The Establishment Secretary's further powers, duties and responsibilities are to be found in sections 6, 15, 16-22 and 24.

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THE AFFIDAVIT

The affidavits filed in this case, taken as a whole, appear to have been sworn in blissful unawareness of the provisions of Order 13 of the Rules of the High Court which ought to be well known to all legal practitioners who prepare affidavits. It is to be hoped that in future, all draftspersons of affidavits remember and apply Order 13 Rule 3(1) and (2):

"Every affidavit shall contain only statements of facts and circumstances to which the witness deposes, either from his own personal knowledge or from information which he believes to be true stating the sources and grounds thereof."

"An affidavit shall not contain extraneous matter by way of objection, prayer, legal argument or conclusion." (emphasis added)

THE APPELLANT'S CASE

In its heads of argument the appellant saw the sole issue as being whether the Respondent had complied with the terms of the Order of the High Court of the 20^th October 1999. It identified three key areas of implementation of the Court Order in which it claimed that the job evaluation exercise violated the Court Order namely:

1. in the meaningful representation of the Appellant in the reconstituted Lower Panel.

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2. in the failure and/or abdication by the Establishment Secretary to determine the grades.
3. in the usurpation of the Upper Panel of the Establishment Secretary's functions of determining the grades.

The appellant accepted that the learned Chief Justice had properly summarised the law on the subject and did not want to challenge his statement of the law. However, the submission is that the court a quo erred in its findings of as to facts.

MEANINGFUL REPRESENTATION OF THE APPELLANT

The complaint as I understand it under this head is that, as set out in paragraph 27 of its founding affidavit:

"The panel included two (2) members of staff namely Mr. Losika Mosarwa and Mr. Collins Modiegi Tombale who happened to be members of the Applicant. They were representing staff not the Applicant."

In paragraph 28, the complaint is that the appellant never received an invitation to submit names of representatives to the Lower Panel chaired by the Establishment Secretary. In paragraph 3 of his affidavit sworn on the 6^th day of June 2003 Mr. Losika Mosarwa described himself as a

member of the applicant's Executive Committee, and as an Assistant Secretary General thereof. Under the general terms of paragraph 4 he "confirms the truthfulness" of the appellant's founding affidavit "in so far as it relates to me or anything said to have been said or done by me". He makes no specific averment denying that he was representing the appellant, nor any positive averment that he was representing staff only, and not the appellant.

At any rate, as a member of the applicant's Executive Committee, and as an Assistant Secretary General thereof, Mr. Losika Mosarwa was a senior member of the appellant holding a post within its rank structure from which the appellant's representation would be normally chosen. The same observations apply in equal measure to the affidavit of Mr. Collins Modiegi Tombale sworn to on the 6^th day of June 2003. These two Affidavits are, in essence, identical in structure. Mr. Tombale for his part is a member of the applicant's Executive Committee, as a consultative member thereof.

As long ago as September 1995 the Appellant fired the first salvo in what has turned out to be a long running battle when it launched proceedings against the Attorney General in civil case No. CC 1825/ 1995 seeking the reliefs set out in paragraph 6 of the founding affidavit. It is significant that Mr. Gabatsoswe Lebitsa who swore the Founding Affidavit, clearly

understood that the appellant, being a legal entity and not a natural person, could only act through natural persons properly authorised to do so. Not surprisingly, in paragraph 3 he swore that he was authorised to depose this affidavit on behalf of the applicant by resolution of the Executive Committee of the applicant which was annexed to the affidavit. In paragraph 4.2, the deponent swore about his awareness of the distinction between the appellant itself and its constituent members. An entity such as the appellant in these circumstances which launched litigation in 1995 can hardly contend with any degree of credibility that it was unaware of its right to be represented by members or by non-members such as legal advisers of its own choosing in litigation or in any other sphere of its lawful activity.

In paragraph 14 of the founding affidavit, the deponent swore that "The applicant's representation was two members." This was at the first Consultative Council Meeting. The deponent does not say how the applicant's representation of two members was effected. Again in paragraph 17 the deponent says that the appellant was represented by two members without saying how those members were chosen. In the absence of any express statement on the matter, it must be assumed that the representatives referred to in paragraphs 14 and 17 were freely chosen by the appellant with full awareness of its right to choose its representatives.

In paragraph 20 the deponent swore that "The Applicant proposed equal representation in the group with Management." In paragraph 25 the deponent swore that "The Appellant had proposed that the grading panel be composed of two assessors from staff and two assessors from Management ...." At paragraph 26 he swore "The said panel was ultimately constituted, including two staff representatives who happened to be members of the applicant." He then referred to a letter to the Establishment Secretary raising concerns about the way the process was now unfolding. That letter dated 9^th October, 2002 speaks for itself. The second of four bulleted sub-paragraphs reads:

"To achieve 'meaningful representation' called for by the Court Order there should be BULGASA assessors. We differentiate an assessor from an observer and from someone in attendance."

With the matter of "meaningful representation" looming large in the mind of the deponent, when he signed that letter, there is, strangely no reference to the Appellant's right to nominate and choose its own representatives as one of the concerns which were troubling the appellant at the time.

In paragraph 27, the deponent, President of the appellant, complains that "The Lower Panel aforesaid, did not include representatives of the applicant as this honourable court had ordered. Then somewhat incongruously, he continued "the panel included two (2) members of the staff namely, Mr. Losika Mosarwa and Mr. Collins Modiegi Tombale who happened to be members of the Applicant. They were representing staff not the Applicant." Though confessing an awareness of the inclusion of Messrs. Mosarwa and Tombale upon the panel, neither the deponent, nor these two gentlemen in their supporting affidavits tells us how they came to be included upon the panel or why, when they heard of their inclusion, they did not immediately protest to the Establishment Secretary that these gentlemen were not of the appellant's choosing. In paragraph 28, the deponent bemoans the fact that the appellant never received an invitation to submit names of representatives to the Lower Panel. With full knowledge of the inclusion of the two appellant-member gentlemen upon the panel, there is no evidence that the appellant ever submitted other names as being the names of its chosen representatives to the Lower Panel.

Paragraphs 29 through 30 make it clear that the deponent, President of the appellant, was informed by the gentlemen panellists of the proceedings of the panel. The President deponent swore that he was informed that the chairman constantly reminded them that they were not

representing the appellant, but that they were representing staff. It is more than passing strange that the deponent president who wrote so fine a letters that of the 9^th October 2002 expressing his concerns, did not at once fire off a letter of complaint to the Establishment Secretary protesting the inclusion of Messrs. Mosarwa and Tombale upon the panel and simultaneously nominating other persons of the appellant's choice to replace them upon the panel. The appellant's failure to do this must therefore be regarded as acquiescence in the inclusion of these gentlemen upon the panel as representatives of the appellant.

This view receives support from the deponent's candid admission in paragraph 30 of the founding affidavit, that:

"Despite all these shortcomings, the Lower Panel did make the reassessment of the grades, and came up with recommendations nearly similar with the consultancy proposals."

Paragraph 31 begins with the telling sentence. "Then the process lost its way." This little six word sentence clearly means that the deponent accepted that up to the point when the Lower Panel came up with its recommendations, it had been proceeding along the straight and narrow, and that things had been done properly up to that point in time.

Alternatively, it accepted or acquiesced in the inclusion of Messrs. Mosarwa and Tombale as its de facto representatives. This view is reinforced by the admission of the appellant's President in paragraph 40 of the founding affidavit which attempts to explain the applicant's acquiescence or quiescence in refraining, if it really thought that it was not being represented on the Lower Panel by representatives of its own choosing, from making vigorous protestations to the Establishment Secretary, or advancing nominees other than Messrs. Mosarwa and Tombale as its representatives on the Lower Panel.

This is the explanation, for what it is worth, that the President deponent gives on behalf of the appellant at paragraph 40 of the founding affidavit:

"The Applicant didn't want to be seen as trying
to rock the boat and despite all these facts,
would have been happy if the end result was
satisfactory. In the final analysis the Lower
Panel's proposals represented some

improvement on the grades of most Local Government employees and the Applicant and its members would have been happy if they were the gradings to be implemented."

This telling passage allows for penetrating insight into the mind of the appellant. It says literally that "The Applicant and its members would have been happy if they (the Lower Panel's proposals) were the gradings to be implemented". The true source of the appellant's unhappiness was

the non implementation of the Lower Panel's proposals rather than any mischief stemming from the appellant's representation on the Lower Panel.

Counsel for the respondent in its Head of Argument draws attention to the appellant's complaint that it did not have the same numerical representation as Management. He submitted that numerical parity does not necessarily translate into meaningful representation by a simple process of counting heads. Rather it is the quality of the representation which matters. Messrs. Mosarwa and Tombale are both high level officers of the appellant. Their representation of the appellant on the Lower Panel was therefore both meaningful and competent. Paragraph 29 of the founding affidavit reveals that they were in meaningful contact with the appellant as the proceedings of the Lower Panel progressed. They reported what was happening to the appellant and one can hardly imagine that they did not take instructions and directions. Such an inference is compelling and inescapable.

The learned Chief Justice gave close attention to the appellant's complaints and to the arguments it advanced in support of those complaints. In approaching this question, he undoubtedly bore in mind paragraph 1 of the consent order. I set out the relevant words here again. They are:

"ought to include meaningfully the representatives of the Plaintiff and the Establishment Secretary."

The learned Chief Justice was fully justified in holding at page 34 of his judgment that:

"As regards representation of the applicant, the word used in the Order was 'meaningfully'. That was to be the level of representation to be achieved in the panel. Well, meaningful representation bears no precise meaning in terms of the numbers of representatives. It is a relative term importing that the representation should be significant and not illusory."

Reacting to the complaint that the appellant's representatives were reminded often that they do not represent the appellant but only the staff, Nganunu C.J. responded in this way at page 36:

"That may well be so but it hardly nullifies the fact that the applicant had two of its highest officials on the Lower Panel for the entire duration of the exercise. In fact the applicant still makes it clear that up to the point when the panel passed its work to the Secretary and him finalizing it they were happy with the process."

Counsel for the appellant has pointed out that in paragraph 12 of the respondent's answering affidavit the Establishment Secretary deposed that "Applicant was represented in the Reference Group by two senior members, being the President and Secretary General respectively." At paragraph 20, he says that "Two of Applicant's senior members constituted the Lower Panel of the grading system." We know from the founding affidavit that the two members of the Lower Panel who were members of the appellant were Messrs Mosarwa and Tombale. Neither of these gentlemen in their supporting affidavits describes himself as either the President or Secretary General of the appellant. It seems clear that the Reference Group and the Lower Panel are separate and distinct bodies.

The Appellant complained that the court a quo erred in finding that the appellant was represented in the Lower Panel by its President and Secretary, its two highest ranking officers, when that is clearly not the case. Even assuming that that was the case, there can be no doubt but that Messrs. Mosarwa and Tombale ably and meaningful represented the appellant on the Lower Panel with the full knowledge and concurrence of the appellant. I am in respectful agreement with the conclusions reached by the learned Chief Justice on the matter of "meaningful representation" and accordingly uphold them.

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FAILURE TO DETERMINE THE GRADES

At paragraphs 1.2.2 and 1.2.3 respectively the appellant complains that the Establishment Secretary failed and/or abdicated his responsibility to determine the grades and that the effect permitted the Upper Panel to usurp his functions in determining the grades. These two complaints may currently be taken together.

The Appellant argues strenuously that the Consent Order made no reference to the Upper Panel. That is undoubtedly true. But the note of the Upper Panel to deal with gradings of superscale jobs as mandated in Presidential Directive CAB 2/84 must be bone in mind. The question at issue is whether or not the Lower Panel has acted in compliance with the Court Order of 20^th October 1999. Counsel submitted that "The question that arises is whether the Establishment Secretary did determine the grades himself." (emphasis added)

Attention has already been drawn to the unhappy formulations of the Consent Order. But the Consent Order must be read against the background of Presidential Directive and interpreted in the light of that Directive ix, which limits the Lower Panel's mandate to jobs below the superscale. The Establishment Secretary did not abdicate his responsibility in respect of jobs in the superscale in respect of position of

D2 and above since he was not clothed with the Presidential authority in respect of superscale jobs. It follows therefore that if, as it has been alleged, the Establishment Secretary made no determination in relation to superscale jobs, he could not be said to have abdicated a responsibility which was not conferred upon him by His Excellency The President. In reaching this conclusion, I bear in mind that the Consent Order upon which much reliance is placed was not an Order of the judge in the Court a quo after she has considered evidence, heard reasoned argument and made an Order upon an exercise of her own deliberate judgment. It bears repeating that parties cannot "consent" to that which is erroneous or to that for which there is no basis or foundation in law. The presence of the Establishment Secretary upon the Upper Panel has in no way affected his competence or ability to discharge his responsibilities under paragraphs 3 of the Consent Order or under Section 5(2) of Unified Local Government Service Act Cap. 40:06.

Nganunu C.J.was undoubtedly correct when he wrote at page 33-34:

"I am of the view therefore that the open ended discretion granted the Secretary entitled him with the complex matter of job evaluation so as to produce comparability with posts in the public service, to interact with the Upper Panel and to agree with them where the posts in the lower panel would merge with those in the Upper Panel to provide consistency and comparability. The exercise was a wide governmental one initiated by Cabinet with general guidelines as to

how to get the exercise finalized and approved. This could have been for budgetary and or other purposes. It was right that the Secretary was engaged, with Cabinet to achieve effectivity in the exercise and secure political and financial support for it. The Secretary said that he had to defend his decisions before Cabinet. I do not think that in doing so he surrendered his mandate to get the job evaluation and grading exercise to Cabinet. There is no real proof of abandonment or usurpation by Cabinet of his functions. After a tough and lengthy exercise he came up with a result he embodied in the Management Directive No. 3. There is nothing objectionable in the manner he proceeded, having involved all his people including the applicant in the process from the beginning."

It was also open to him to say at page 35:

"Have already held that evaluating the jobs and assessing the grades under the section did not exclude interaction of the Secretary with other relevant parties to enable him to arrive at grades that would be effective and which he could approve. In my view, the Secretary substantially complied with this part of the Order as well as the provisions of the section."

This court is in full agreement with the views of the learned Chief Justice and accordingly find no merit in this appeal.

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The order of the Court therefore is that the appeal be and is hereby dismissed with costs to the Respondent.
DELIVERED IN OPEN COURT AT LOBATSE THIS 27^TH DAY OF JULY, 2005.
S.A. MOORE JUDGE OF APPEAL

I agree
K.R.A. KORSAH JUDGE OF APPEAL

I agree

F.H. GROSSKOPF JUDGE OF APPEAL

> r • ^
>.
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The order of the Court therefore is that the appeal be and is hereby dismissed with costs to the Respondent.

DELIVERED IN OPEN COURT AT LOBATSE THIS 27™ DAY OF JULY, 2005.
S.A.^MOORE JUDGE OF APPEAL

I agree
I agree
F.H. GROSSKOPF JUDGE OF APPEAL

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