Rakhudu v Botswana Book Centre Trust and Others (Civil Appeal No. 25 of 204) [2005] BWCA 19; [2005] 2 B.L.R. 283 (CA) (27 July 2005)

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Rakhudu v Botswana Book Centre Trust and Others (Civil Appeal No. 25 of 204) [2005] BWCA 19; [2005] 2 B.L.R. 283 (CA) (27 July 2005)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Civil Appeal No. 25/2004 High Court Miscellaneous Application No. 435/2002

In the Matter between:
KELETSO RAKHUDU
And
BOTSWANA BOOK CENTRE TRUST
ROSE TATEDI
L. S. MOAPE
H. O. BAKWENA
P. L. D. MODISENYANA
S. BAHUMA
J. SONO
S. S. METI
Mr. K. Kgafela for the Appellant Advocate. B. E. Leech and Mr. V. Vergeer For the Respondents
Appellant

1^st Respondent 2^nd Respondent 3^rd Respondent 4^th Respondent 5^th Respondent 6^th Respondent 7^th Respondent 8^th Respondent

JUDGMENT
CORAM: KORSAH JA AKIWUMI JA GROSSKOPF JA
GROSSKOPF JA:

The appellant was appointed general manager of the Botswana Book Centre on 5 October 2000. His appointment was for a period of three years but subject to a probation period of three months. On 7 December

2000, and before the expiry of the probation period, the trustees of the Botswana Book Centre Trust ("the first respondent") terminated his services. The appellant thereafter took his time before launching an application on 6 September 2002 against the first respondent and seven of its trustees as further respondents. The appellant in his notice of motion asked for an order declaring his dismissal unfair and unlawful and for an order setting it aside. He further claimed payment of substantial sums of money in respect of salary, gratuity as well as car and cellphone allowances .

On 5 November 2003 the court a quo, by consent, ordered that the
matter be referred to trial and that the affidavits filed should stand as
pleadings. At the commencement of the hearing in the court a quo
counsel for the respondents raised the preliminary point that no case
had been made out in law on the papers as they stood. After hearing
argument the court a quo held that the application does not disclose a
cause of action and that the preliminary point must succeed. The court a
quo further concluded as follows:

"Although the legal point taken is [dispositive] of the application as presently framed I am not inclined to dismiss the application without giving the applicant an opportunity to reconsider his position and to act as best as he might be advised."

The appellant noted an appeal, inter alia on the ground that the court a
quo, on an incorrect finding of fact, held that the appellant's contract of
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employment was governed by the first respondent's Deed of Trust. The relief which the appellant sought was inter alia that the Court of Appeal should hear the point in limine de novo in the context of the first respondent's Conditions of Service Booklet.

The appellant noted his appeal as provided for in section 10(a) of the Court of Appeal Act [Cap 04:01], namely an appeal to the Court of Appeal as of right since it was from a final decision in proceedings before the High Court sitting at first instance.

At the hearing of the appeal counsel for the respondents once again
raised a preliminary point, namely that the court a quo did not make any
finding which was susceptible of being appealed against. Counsel argued
that the ruling of the court a quo was neither a final decision nor an
order in the sense of being an interlocutory order. Counsel submitted in
the alternative that the decision of the court a quo was certainly not a
"final decision" as meant in section 10(a) of the Act and that the
appellant was therefore not entitled to appeal to this court as of right.
The respondent submitted that at best for the appellant he was obliged to
seek leave to appeal in terms of the provisions of section 11 of the Act,
which reads as follows:
"Subject to section 10, an appeal shall lie from any decision of the High Court to the Court of Appeal with the leave of the
3

High Court, or, if such leave has been refused, with the leave of the Court of Appeal, in the following cases -
(a)     from any interlocutory order;
(b)     from any order relating to costs only;
(c)     from any order made with the consent of the parties;

(d)

from any decision in any civil or criminal proceedings given on appeal from any other court to the High Court;

(e)

In any case where express provision for such appeal is made in any written law."

It is common cause that the appellant did not seek leave of the High Court.

The argument before us proceeded on the respondent's alternative argument, namely that the appellant required the leave of the High Court to appeal since the decision of the court a quo was not a final decision as provided for in section 10(a) of the Act.

The appellant submitted that the preliminary point taken by the respondent in the court a quo amounted to an exception and that by upholding this point the court a quo in effect upheld an exception that the application does not disclose a cause of action. This, the appellant submitted, amounted to a final order.

The appellant relied in this regard on the case of Commissioner of Customs v Airton Timber Co. Ltd 1926 AD 1 at 4 in support of his argument. The learned Chief Justice remarked in that case that the court has frequently laid down that an order upholding an exception is a final and not an interlocutory order. He did however add that regard must be had to the terms of the order in deciding whether it is final or interlocutory. In that case the court, in allowing paragraph (a) of the exception, destroyed the whole of the appellant's first cause of action as the particular proclamation on which the appellant relied was held to be ultra vires, and it was impossible to frame a new declaration in the face of the order. It was probably for that reason that the learned Chief Justice remarked that it was irrelevant whether leave was granted to amend. No amendment could have rectified the position in that case. The order of the provincial division in that case allowed the exception and directed that the particular paragraphs of the declaration be expunged. That order was held to be a final order.

The order as framed by the court a quo in the present case can however clearly be distinguished from the order that was made in the case of the Commissioner of Customs. One must have regard, as was held by the learned Chief Justice in that case, to the terms of the order of the court in deciding whether it is final or interlocutory. In the case before us the court a quo granted no final relief apart from a cost order. The learned

judge in the court a quo specifically held that he was not dismissing the appellant's application "without giving the [appellant] an opportunity to reconsider his position and to act as best as he might be advised". The respondent submitted that this was not a final order since the appellant could, for instance, still seek to supplement the papers to make out a proper case.

This Court held in the case of Letsema Moahi v Tswelelo (Pty) Ltd and Deputy Sheriff Seboko. Court of Appeal Civil Appeal No. 27 of 1998,

that in so far as a court order does not dispose of the issue in contention
between the parties it is of an interlocutory nature. Reference was also
made to the case of De Beers Botswana (Ptvl Ltd v Diphoko 1993 BLR
237 (CA) at 242 H - 243 F where the following passage from Zweni v
Minister of Law and Order 1993 (1) SA 523 (A) at 532 J - 533 B was
quoted with approval:

"A 'judgment or order' is a decision which, as a general principle, has three attributes, first the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and, third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings... The second is the same as the oft-stated requirement that a decision, in order to qualify as a judgment or order, must grant definite and distinct relief."

In my judgment the decision of the court a quo is clearly not a final
decision which has the effect of disposing of at least a substantial portion
of the relief claimed by the appellant. The appellant was therefore not
6

entitled to appeal to this Court as of right in terms of section 10 (a) of the Act. He first had to obtain the leave of the High Court.

The respondent asked that if the preliminary point be upheld that the appeal be struck from the roll, but we feel that it may be more sensible to allow the appeal to stand over while the necessary leave to appeal is sought in the High Court or, if unsuccessful there, on application to this Court for such leave.

In a similar matter where leave to appeal had not been applied for and granted by the court a quo this Court has allowed the appeal to stand over pending an application for such leave. (First National Bank t/a Wesbank v Desmond M. Masilonyane, Court of Appeal Civil Appeal No. 39 of 2004; following the South African Appeal Court case of Oliff v Minnie 1952 (4) SA 369 (A) at 376).

The following order is therefore made:

The appeal is postponed to the next session of this Court in July 2005.

The appellant is given leave to apply within 21 days of this order to the High Court for leave to appeal to this Court, or failing such leave, to apply to this Court for leave to appeal to it.

The costs of the present proceedings in this Court are to be borne by the appellant.

DELIVERED IN OPEN COURT AT LOBATSE THIS....28^th DAY OF
JANUARY 2005.
F. H. GROSSKOPF JUDGE OF APPEAL

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

I agree
A. M. AKIWUMI JUDGE OF APPEAL

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

COURT OF APPEAL CIVIL APPEAL NO. 25 OF 2004 MISCELLANEOUS CIVIL APPLICATION NO. 435 OF 2002

In the matter between:
KELETSO RAKHUDU APPELLANT
and
BOTSWANA BOOK CENTRE TRUST       1^ST RESPONDENT
ROSE TATEDI      2^ND RESPONDENT
L.S. MOAPE       3^RD RESPONDENT
H.O. BAKWENA     4^TH RESPONDENT
P.L.D. MODISENYANA       5^TH RESPONDENT
S. BAHUMA        6^TH RESPONDENT
J. SONO 7™ RESPONDENT
S.S. METI        8^TH RESPONDENT
Mr. P. Collins (with him Mr. K. Kgafela) for the Appellant Mr. B.E. Leech (with him Mr. V. Vergeer) for the Respondents
CORAM: N.W. ZIETSMAN J.A. S.A. MOORE J.A. N.J. McNALLY J.A.
JUDGMENT
McNALLY J.A.

This is a dispute over the termination of the employment of the appellant as General Manager of the first respondent's Book Centre. The other respondent's are the Trustees of the Book Centre. I shall refer to the parties as "the appellant" and "the respondents".

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The history of the matter was adequately summed up in the judgment of the late Chatikobo J. in the following words:

"He first entered the employment of the first respondent in July 2000 as the latter's marketing manager. In this position he was required to serve a probationary period of three months. At the time of his initial appointment and throughout the entire duration of his employment he was also a Councillor of the City of Gaborone.

The applicant commenced duty as marketing manager on the 1^st July 2000. Two months later, prior to the expiration of his probation period, the appellant was appointed acting General Manager. This appointment was to last until further notice. On the 5^th of October 2000 he was appointed General Manager. This appointment was for a period of three years, but it was subject to the applicant serving three months probation. The applicant remained in this position until 7^th December 2000."

On that date his services were abruptly terminated. He was given 14 days notice of termination from 8^th December 2000 so that he finished work on 24^th December 2000.

He objected to this treatment but his employers were unmoved. He accordingly approached the High Court for relief in the form of a declaratory order, alleging breach of contract and claiming damages.

On 2^nd September 2004 the late Chatikobo J. handed down his judgment in the matter. The judgment turned on what his Lordship described as a preliminary point taken by the two respondents. It has subsequently been described as an exception. The point was taken informally, in the sense that no notice of exception was given. There was no objection raised by the applicant's counsel to the procedure that was followed. The court was simply advised that the respondents wished to submit that the application did not reveal a cause of action.

It seemed to the court, understandably, that "the whole case would ultimately turn on the legal point taken." Accordingly, as Chatikobo J. said "I decided to deal with the preliminary point and render a decision thereon without delving into the contested factual dispute." He proceeded to do so, and came to the conclusion that the respondents were right. In terms of the contract they were entitled to terminate the employment of the applicant on 14 days notice without either giving reasons or allowing him a hearing.

Unfortunately, at this stage, the learned judge faltered. Possibly he was thinking of making the kind of order that is made when an exception is upheld but the respondent is given leave to amend and "failing amendment within 14 days the application is dismissed."

4
What he wrote however was -

"For the reasons set out in this judgment the preliminary point taken must succeed. Although the legal point taken is dispositive of the application as presently framed I am not inclined to dismiss the application without giving the applicant an opportunity to reconsider his position and to act as best as he might be advised."

Then, having discussed the question of costs, he proceeded -

"In the result the preliminary point taken by the respondents is upheld, and it is held that the application does not disclose a cause of action. The applicant is to bear the costs with the exception of the costs occasioned by the postponement on 20^th January 2003 which are to be borne by the respondents."

That was all he said, and, predictably, when an appeal was lodged with this Court (his judgment having been signed, after his death, by the Chief Justice) the finding was -

"The decision of the court a quo is not a final decision which has the effect of disposing of at least a substantial portion of the relief claimed by the appellant. The appellant was therefore not entitled to appeal to this court as of right in terms of s. 10(2) of the (Court of Appeal) Act. He first had to obtain the leave of the High Court."

In consequence of this ruling the appellant duly approached the High Court for leave to appeal. He made it clear that he did not wish to avail himself of the opportunity granted him to amend or supplement his papers. He contended, and the first respondent, who was represented by counsel, did not dispute this, that by adopting this attitude he was in effect converting the ruling of the late Chatikobo J. into a final decision. On that basis he sought leave to appeal and, on 22^nd April 2005, that leave was granted, with the costs of the application stood over for determination in the appeal.

The issue is now squarely before us. In order to come to a conclusion we have to consider three separate documents. The first is the Book Centre's "Conditions of Service", a document of general application to employees. The second is the appellant's letter of appointment of the 5^thOctober 2000. The third is the Employment Act, Cap 47:01 of the Laws of Botswana.

The Conditions of Service

It is open to considerable doubt whether the general Conditions of Service applied to the appellant. Paragraph 1.1 of the Conditions reads, in relevant part:-

"These conditions of service apply to all permanent employees of the Book Centre ...."

6
Paragraph 1.2 reads:-

"These conditions of service form part of the employees' Contract of Employment, and upon entering employment with the Book Centre, the employee undertakes and agrees to comply with the Conditions of Service as amended from time to time ...."

The appellant was not a permanent employee. Moreover it is noticeable that in his original 2 year contract as Marketing Manager there was a specific provision that "... your employment will also be governed by the general Conditions of Service of the Book Centre." In his letter of appointment as general manager there is no such provision. The omission must be taken to be deliberate.

Paragraphs 2.1 and 2.3 state:-

"2.1 The General Manager, and senior managers of the Book Centre, shall be appointed by the Board of Trustees.

2.3 The Book Centre may appoint employees on a temporary basis, or on the basis of a fixed term contract, on such conditions as the General Manager may determine."

Paragraph 3 of the General Conditions deals with probation. I set it out in full, as follows:-

7
"3.0 PROBATION

3.1

All employees, other than temporary or contract employees, are required to serve a probationary period not exceeding six months.

3.2

During the probationary period, if the General Manager, after consultation with departmental managers, feels the employee is unsuitable for permanent employment, the Book Centre reserves the right to terminate the Contract of Employment, and there shall be no appeal against such termination, in accordance with the provisions of the Employment Act, 1982, as amended from time to time.
3.3

Where a contract of employment is terminated during the probationary period, the period of notice shall be 14 calendar days, or salary in lieu of notice."

Quite apart from the doubt I have already expressed as to the applicability of these conditions to the case of appellant, I find specific difficulty in relation to this paragraph. In the first place, it does not apply to contract employees (3.1), and secondly it is expressed so as to apply only to those below the rank of General Manager (3.2).

Subject to what I have said above there are two other paragraphs in the general Conditions of Service which might have a bearing on this case. I do not think that they do, but for the sake of completeness I set them out:-

8
"19.11 Employees whose appointment was

subject to the approval of the Board of Trustees shall have the right of appeal against the termination of employment to the Board of Trustees."

20.1 A contract of employment may be

terminated by either the Book Centre or an employee for whatever reason, provided that notice is given or payment made in lieu of notice. The periods of notice shall not apply in cases of summary dismissal for gross misconduct."

In my opinion these general Conditions of Service did not apply to the appellant in his capacity as General Manager on a three year contract.
His Contract of Appointment

The relevant provisions of the letter of 5^th October 2000, addressed to the appellant and headed "Appointment as General Manager" are the first two in the list of "terms and conditions of your employment." They are:-

"1. The duration of the contract would be three years.

2. You would be required to serve a probation period of three months and if you successfully complete that probation, would be confirmed into that position."

9
Thereafter were listed various provisions about salary and other benefits,
and finally a provision that:-

"Please note that you will be required to enter into a formal contract with the Botswana Book Centre that will outline the other details of your employment."

That never happened. Before the probation period was completed, the relationship was severed.

Mr. Collins, for the appellant, has taken a bold line of argument. He has recognised, as I understand him, that if we were to be guided solely by the contract, he would have no case. The contract allows for termination during the probation period. It was terminated during the probation period. That is the end of the matter. But no, says Mr. Collins. The Employment Act does not permit an employer to insert a probation period into a fixed term contract of employment. The provision for a probation period is thus unlawful. It must be struck out - taken as pro non scripto.

Accordingly, we must turn to the third and last of our documents - the Employment Act itself.

10
The Employment Act, Cap 47:01
The Act, which was enacted in 1982, came into effect on 14 December 1984 and was extensively amended by Act 26 of 1992. Its long title reads:-

"An Act to repeal and replace the Employment Act in order to amend the law relating to employment, to make comprehensive provision therefor and to provide for matters incidental thereto and connected therewith."

Part III of the Act deals with contracts of employment, and from s.17 onwards, with the termination of contracts of employment.
S.17 is a statement of the obvious -
"17(1) A contract of employment for a ...

specified period of time shall, unless otherwise lawfully terminated, terminate when ... the period of time for which the contract was made expires."

(2) A contract of employment for an

unspecified period of time ... shall be deemed to run until lawfully terminated."

S.18 and 19 make provision for the termination of contracts of employment for unspecified periods of time. S.18 deals with the period

of notice that must be given, and s.19 provides for the payment of cash in lieu of notice. It must be emphasised however that neither of these sections applies in the present case because we are dealing with a fixed term contract of employment, not one "for an unspecified period of time."

S.20 has played a large part in the argument of this case because it talks about a probationary period. Yet nothing could be clearer than the fact that subss. (1) and (2) of s.20 deal with "a contract of employment for an unspecified period of time" and thus do not apply to the present matter. In the case of subs. (1) this is expressly stated. In the case of subs. (2) there is a reference back to ss.18 and 19 which in turn deal with contracts of employment for an unspecified period of time. So the sub section is limited to those contracts.

S.20(3) on the other hand is relevant to the present case because its application is not limited to contracts of employment for an unspecified period of time. It reads:-

"(3) Before entering into a contract of employment which is to provide for a probationary period, the prospective employer shall inform the prospective employee in writing of the length of the probationary period."

I pause to observe that in the present case the employer has complied with this provision.

Mr. Collins has sought to convince us, by reference to a judgment of De Villiers J. in the Industrial Court in Gaopotlake v. Dulux Botswana

(Pty) Ltd 2000[1] BLR 458, that s.20(l) prohibits the inclusion of a probationary period in any contract other than a contract of employment for an unspecified period of time. He relies for this contention on a statement by the learned judge at 461 D that:-

"A probationary period in terms of section 20 is only applicable to a contract of employment for an unspecified period of time. It does not apply to any other contract of employment."

I think, with respect, that Mr. Collins is misinterpreting what the learned judge said in what was, I should add, merely an obiter dictum. The subject of the verb "is applicable" in the first sentence is not the phrase "a probationary period" but the longer phrase "a probationary period in terms of s.20." All that the learned judge was saying is that s.20 deals with probationary periods only in the context of contracts of employment for an unspecified period of time. It does not deal with probationary periods in any other type of contract. I have no quarrel with that statement, but I do not regard it as authority for the proposition that

s.2o prohibits the inclusion of a probationary period in a fixed term contract of employment.

The facts of Gaopotlake v. Dulux Botswana (Pty) Ltd, and the issues they raised, were quite different from the facts and issues before us. The appellant was on probation in a contract of unspecified duration. He was dismissed summarily on an accusation of theft. The finding was that the only dismissal envisaged under s. 20(2) was dismissal on notice, not summary dismissal. Summary dismissal falls under s.26 and must be justified in the ordinary way.

In the same way I distinguish the other judgment relied upon by Mr. Collins, the case of Alphan Phiri v. Medoo Trading (Pty) Ltd, Case No. IC 160/04. The extract from that judgment cited by Mr. Collins makes it clear that, in a contract of employment for an unspecified period of time (which this is not) "non-compliance with any of the said requirements, set out in sub-sections 20(1), (2) and (3), will render the probationary period null and void. ...In such cases the contract of employment will be regarded as a contract without any probationary period." Again, that may be so, but the case does not advance Mr. Collins' argument.

I find therefore that there is nothing in s.20 of the Employment Act which either expressly or by necessary implication forbids the inclusion

of a probationary period in a contract of employment for a specified period of time. Indeed Mr. Leech, for the respondents, referred us to the decision in the High Court (unreported) of Bamalete Lutheran Hospital v. Peter Emodek, Civil Appeal No. 536/99, in which such a contract was upheld without question (although it would seem that s.20 (2) was wrongly regarded as applicable).

Mr. Collins next sought to rely on s.37 of the Act which provides:-

"When a contract of employment, whether made before or after the commencement of this Act, provides for conditions of employment less favourable to the employee than the conditions of employment prescribed by this Act, the contract shall be null and void to the extent that it so provides."

This submission again is predicated upon the assumption that the Act prohibits probationary periods in fixed term contracts. Once the assumption is rejected, the submission falls away.

One can only conclude from all this that the Act, despite purporting to make "comprehensive provision" for the law relating to employment, deals only cursorily with the termination of contracts of employment for a specified period of time. Section 17(1), 20(3) and 37 are the only ones

which need to be considered in the present case. They lay down three requirements:-
1.

Such a contract must be terminated lawfully. (S.17(1))
2. The employee must be advised in writing of the length of the probationary period. (s.20(3))
3. The conditions of employment must be not less favourable to the employee than those prescribed by the Act. (s.37)
I will deal with them in turn.
1. Lawful termination

Since the Act makes no specific provision as to the method of termination of a fixed term contract of employment, we must fall back on the common law, which clearly allows the termination of an employment contract (a fortiori during a probationary period) on reasonable notice without the giving of reasons or the right of appeal, unless there are terms, express or implied, to the contrary. The original court application was based on the common law and specifically on an allegation of breach of contract. See Nchabaleng v. Director of Education (Tvl) & Another 1954[1] S.A. 432 (T) at 440 A-B; Mustapha & Another v. Receiver of Revenue, Lichtenburg & Others 1958[3] S.A. 343 (A) at 357 A-C; van

Coller v. Administrator, Transvaal 1960[1] S.A. 110 (T) at 115 A; Grundling v. Beyers & Others 1967[2] S.A. 131 (W) at 141 D-E; Embling v. Headmaster, St. Andrews College, Grahamstown 1991 [4]

S.A. 458 at 476 J- 468 C; Lamprecht & Another v. McNeillie 1994[3] S.A. 665(A) at 668 C-H. Particularly in regard to the meaning of the term "probation" see Ndamase v. Fyfe-King, N.O. 1939 EDL 259 at 262-3, and the remark in Vol. 13 Part 1, (first re-issue) of LAWSA at para 101 that:

"An employee may be appointed initially on probation before being appointed permanently or for a fixed period." (my underlining)

2. Notice in writing

As I have already indicated, the appellant was given written notice of the length of the probationary period.

3. Conditions to be no less favourable than prescribed by the Act

No conditions are prescribed by the Act, but even if one were to proceed by way of analogy it is clear that the Act recognises probation (s.20(l)) and dismissal on not less than 14 days notice without the giving of reasons (s.20(2)) during the probationary period in the case of those employed for an unspecified period of time. The appellant's conditions were no less favourable. I note here that no point was taken that he

should have been given more than 14 days notice. Compare Gaopotlake's case (supra) at 462 A-G and Mosedame v. Institute of Development Management (1998) B.L.R. 72 (C.A.)

In the circumstances I conclude that the appellant's application was properly dismissed and the appeal must also be dismissed with costs, including the costs of the application for leave to appeal.

DELIVERED IN OPEN COURT AT LOBATSE THIS 27^TH DAY OF JULY, 2005.
N.J. Mc NALLY JUDGE OF APPEAL

I agree
N.W. ZIETSMAN JUDGE OF APPEAL

I agree
S.A MOORE JUDGE OF APPEAL

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