Botswana: Court of Appeal

                  Court of Appeal Civil Appeal No. 034 of 2005

High Court Case No. MISCA (F)10 of 2004

In the matter between

DEFENCE FORCE                                        1^ST APPELLANT

THE ATTORNEY-GENERAL                       2^ND APPELLANT

DIPABALELO MAEKE                                    RESPONDENT

Lobatse 19 and 27 January 2006

RAMODIBEDI JA

[1]      The paramount question which arises for determination in this appeal is a very important one in so far as the disciplinary machinery of Botswana Defence Force is concerned. Crisply put, the question becomes: does the Defence Act (Cap 21:05), more specifically Regulation …… exclude the right to a fair hearing in disciplinary matters? The appellant contends that it does so while the respondent on the other hand advances a contrary view.

[2]      This case started as an application on notice of motion in the High Court. The respondent sought relief against the appellants in the following terms:

“(a)      Reviewing and setting aside the decision of the first respondent in discharging the applicant from the Army in terms of Regulation 2(6) (c) of the Defence Force Regulation (sic) as being unfair, unjust and a violation of the notion of a fair hearing.

(c)      Ordering the first and second respondents to pay the costs of this application.

         (d)      Ordering any further and or alternative relief.”

[3]      After hearing submissions, the High Court granted the application and set aside the first appellant’s decision discharging the respondent from Botswana Defence Force. The court also made a special order couched in the following terms:

                  “I order as follows:

Applicant be reinstated in the employ of Botswana Defence Force with immediate effect.
(b)     

Applicant be paid all his salary arrears from the date of his discharge from the army to date.

(c)     

1^st respondent shall pay applicant’s costs on the party and party scale.”

[4]      The factual background to this case can be briefly summarized in this way. In March 2000, the respondent, a member of the first appellant’s organization, was allowed by his supervisors to grow a beard apparently due to the fact that he was having “problems with shaving.” In brief, it is not disputed that he was allergic to shaving. Nor is it in dispute that the respondent’s excuse from shaving was duly made on the recommendation of a Dermatologist.

[5]      On 5 March 2003, however, one Major Nkomo (“Nkomo”) in the first appellant’s organization called the respondent to his office and “castigated” him for leaving his beard to grow “like that of a church priest.” It is not disputed that Nkomo thereupon lambasted the respondent for having no respect “for those officers who go to persuade doctors to write them fake reports so that they can avoid shaving.” These remarks, as I observe, are no doubt in reference to a savingram annexure “DMB” dated 31 March 2000 and addressed to Nkomo by the Commanding Officer, Medical Corps. The savingram reads in part as follows:

                  “SHAVING: NO. 97898 PRIVATE MAEKE D.

(1)      The above named was referred to a Dermatologist for his beard problems.

(2)      The Dermatologist, Dr. Ljustinah, has recommended that he be allowed to grow beard, as there is no cure for his illness. Growing beard will alleviate the problem.

(3)     

It is thus suggested that he be excused from shaving his beard indefinitely to avoid recurrence of the illness.”

[6]      It is the respondent’s case that Nkomo then ordered him to go to the clinic and see the doctor “again.” The respondent produced his latest health cards as proof that he had already seen the doctor. He duly explained that all that remained was for him to be “admitted” for further observation.

[7]      Although Nkomo denies ordering the respondent to go back to the clinic and see the doctor again, he significantly says that the order in question was made by one Warrant Officer Dithole. But surely if that was the case, one would have expected the Warrant Officer to file a supporting affidavit. He did not. In these circumstances, the court a quo was fully justified in regarding Nkomo’s allegation on this issue as no more than hearsay.

[8]      Similarly, Nkomo makes a bare denial to the respondent’s material allegation that he (Nkomo) “did not bother to listen” to respondent’s explanation set out in paragraph [6] above. According to respondent’s version, Nkomo “immediately instructed the warrant officer to open charges of disobeying a lawful order” against him. Not only that, but he also ordered that the respondent be arrested and detained immediately. This, he did in terms of annexure “DMB” which he admittedly addressed to the Officer Commanding Military Police, Francistown. This annexure is dated 5 March 2003. It reads in part as follows:

                  “Re: DETENTION NO. 97898 PVT MAEKE D.

Kindly please your office is requested to detain No. 97898 Pvt Maeke D. Reason: He is (sic) refused to obey the orders when he is ordered to go to the BDF Clinic, after he made agreement with the Doctors for review. 24 hours detention.”

[9]      Furthermore, it is not disputed that on 12 March 2003, Nkomo once again ordered that the respondent be detained for 45 days and that this order was carried into effect. In this connection Nkomo’s savingram “DMB” dated 12 March 2003 and addressed to the Officer Commanding Military Police Francistown reads:

                  “DETENTION NO. 97898 PVT MAEKE D.

This serves to request your office to detain No. 97898 PVT MAEKE D 45 days detention for disobedience to particulars orders charge, charge 11/3/03 to 25/04/03.

2.      

Your co-operation is always anticipated.”

[10]     Thereafter, the respondent’s version of the events leading up to the application in the court a quo is fully set out in paragraphs 19-24 of his founding affidavit. Because of the serious nature of the allegations contained in these paragraphs it is convenient to reproduce them in full. I do so even at the risk of overburdening this judgment. These paragraphs read as follows:

“19.      After the 45 days’ detention that Major Nkomo ordered as per his letter dated the 12^th March, 2003, I was arraigned before him.

20.     

He then presided over my case although it was clear that if there was any case at all, Major Nkomo was a witness in that he was the person who charged me, was the witness in that he was the one who was the complainant and was also the prosecutor in that he is the one who gave orders to W/O I Dithole V. B. to prepare charges against me.

21.     

In all fairness he was disqualified from presiding over any disciplinary hearing of any sort because of his major interest in the case.

22.     

He was further disqualified to preside over the case because if there was any disobedience of an order, that may have occurred following his instructions, that order would have been an order from him and here is a man who claims that his order has been disobeyed then decides to preside over such violation of the rules himself.

23.     

Major Nkomo who took part in all the steps that led to my incarceration for 45 days and the follow up disciplinary hearing, notwithstanding that there were over a dozen officers of Major rank within the 12^th Infantry Battalion, he decided that he was going to hear my case in order to fix me.

24.     

He presided over the hearing and at the end of the day found me guilty and recommended that I be dismissed from the Army.”

[11]     In paragraph 17 of his Answering affidavit, Nkomo once again makes a bare denial to respondent’s allegations. He simply does not meet these allegations in point of substance. All he says is the following:

                  “17.      AD PARAGRAPHS 20-24.

The contents therein are denied, Major Nkomo presided over the hearing in his capacity as Commanding Officer of the Applicant’s Unit as per the Botswana Defence Force Act [Cap. 21:05].

17.2    

The said Commanding Officer was not a witness at the hearing and the Applicant’s disobedience, which led to the Disciplinary Hearing, was to an order given by Warrant Officer Dithole. The Commanding Officer was neither present nor associated in any way with the incident.

17.3    

The Commanding Officer was the authority charged with the responsibility to deal with the case and was empowered by the provisions of the Botswana Defence Force Act [Cap 21:05], the case could not have been dealt with by any other officer.

Applicant is however put to strict proof of his allegations of ill will, bias or personal interest by the Commanding Officer.”

[12]     Perhaps the central thrust of the respondent’s case is contained in paragraph 26.7 of his founding affidavit wherein he says the following:

“26.7     In all, the Major was a Presiding Officer, a Judge, Prosecutor, and witness at the same time. That trial therefore was held under circumstances which are not only unfair but under circumstances which are completely outside the known procedure of conducting disciplinary hearings in the Botswana Defence Force. It was therefore a mistrial.”

[13]     Now, it is pertinent to observe that after reading the affidavits filed of record including the annexures referred to in paragraphs [8] and [9] above, the court a quo correctly, in my view, came to the conclusion that Nkomo “played the double role of accuser and judge.” Significantly this finding is not challenged on appeal. Nor could it be. In this regard, it is of fundamental importance to bear in mind that in an application for final relief, such as the instant matter is, a court is fully entitled to assume the correctness of averments by an applicant which are admitted or not challenged by respondent. Authorities for this proposition are legion. See for example, Plascon-Evans Paints v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

[14]     Indeed, as I understand the respondent’s case, it is not seriously disputed that Nkomo played a double role as alleged. This is more so when one has regard to his averments in paragraph 32 of his answering affidavit. Therein he says the following:

“32.1     … Major Nkomo as the Applicant’s supervisor should be concerned with everything going on in the unit and could not therefore avoid getting involved.

32.2.1  

Further, as the Commanding Officer he was empowered to investigate and try the case as per the provisions of the Act.”

[15]     Before proceeding further, it is no doubt appropriate to record at this stage that Nkomo’s actions as fully set out in the preceding paragraphs had devastating effects on the respondent. Consequent upon his conviction by Nkomo, the respondent was discharged from the Army on 11 June 2003. Hence his application for review referred to in paragraph [2] above.

[16]     That, then is the background to the instant appeal. In a nutshell, the nub of the case advanced by the respondent, both in the court a quo and in this Court, was first, that he was not given a fair hearing because Nkomo acted both as the respondent’s accuser and judge at the same time. The respondent thus relies on a fundamental principle of natural justice that no man may be a judge in his own cause. Secondly, the respondent complains in paragraphs 35-37 of his founding affidavit that the first appellant failed to apply his mind to the material issues nor did he weigh all the facts properly before reaching a decision to discharge him. In any event, it is the respondent’s case that his discharge was not even done by the first respondent. Instead, it was done by a senior officer at Botswana Defence Force Headquarters “who wished to appease Major Nkomo.” The respondent avers that the senior officer in question was not empowered to dismiss him. Typically, these serious allegations are met with no more than a bare denial save to say that section 102 of the Act confers power on the first respondent to delegate his powers. Accordingly, I have not the slightest doubt that this bare denial did raise a genuine dispute of fact in these circumstances. It follows, in my view, that the court a quo was justified in accepting the respondent’s version and proceeding on the basis of the correctness thereof.

[17]     But, because the appellants rely on the provisions of Botswana Defence Force Act (“the Act”) read with Regulation … for the proposition that Nkomo was empowered under the Act to do what he did, it is now necessary to refer to these provisions. But before doing so, one pertinent observation requires to be made at this stage. It is that the appellants have made a global reference to the Act in the answering affidavit of Nkomo. They have not singled out any section of the Act or Regulations upon which they seek to rely. Understandably, this has prompted respondent’s counsel to make a submission that the case which the appellants are now arguing on appeal was not the case as pleaded and canvassed in the court below. In my view, counsel is right in this contention. Indeed it has been stressed often enough that it is in particular wrong to direct the attention of the other party to one issue and then attempt to canvas another. See for example, Imprefet (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107-108.

[18]     Section … provides as follows:
                  “…………………………………………”

[19]     On the other hand, Regulation …..in turn read as follows:
                  “…………………………”

[20]     In order to understand the true import of the Act in so far as the right to a fair hearing is concerned, it is no doubt important to consider, as a starting point, the position at common law. In this connection I should like to state at the outset that at common law