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Letlhogile v Central Coffins Botswana (Pty) Ltd (Civil Appeal No. 27 of 204) [2005] BWCA 4; [2005] 1 B.L.R. 21 (CA) (19 January 2005)
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.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No. 27 of 2004 (High Court Civil Case No. F. 19 of 2004)
In the matter between:
GOBOTSWANG LETLHOGILE
Appellant
and
CENTRAL COFFINS BOTSWANA (PTY) LTD.
Respondent
Mr. B. Sechele for the Appellant
Mr. G. G. Komboni for the Respondent
JUD GMENT
CORAM: P. H. TEBBUTT, J.P. S. A. MOORE, J.A. N. J. McNALLY, J.A.
McNALLY. J.A.:
In the High Court at Francistown on 19 March 2004 summary judgment was granted against the appellant in the amount of P246 583.40
with interest at 10% from date of service of summons, and costs. She has appealed to this court. On 19 January 2005 we dismissed
the appeal with costs, without calling on the respondent's legal representative.
These are our reasons:
The appellant was employed by the respondent for a number of years at its various branches. From January 1999 to November 2002 she
worked at the Mahalapye branch. On 6 October 2002 she was confronted by a Mrs. Kerebotswe, one of the Directors of Respondent, and
accused of misappropriating a total of P248 913.40 over a period of time.
The appellant wrote a letter, in her own hand, and in Setswana, to her employers on 5 November 2002. That letter, and an English translation
were annexed to the summons and the English version reads as follows:
"Central Coffins Box 718 SEROWE
To: Madam/Sir
I, Gobotswamang Lethogile started for CCB on 14th January 1999 as a leader in Mahalapye Central Coffins.
In my job, I was selling coffins, shrouds, tomb frames, services, etc. It so happened that when I was in the course of my work, I
used company money for my own purposes without any agreement with my employers.
Starting from July 2001 to October 2002, I used the amount of P153 788.10 which were sales which I had receipted but thereafter took
the money. I deposited some of the sale and kept some of the same sales. The other amount I took amounted to P95 125.30 which relates
to sales that I had made but did not issue receipts for the same sales. The total amount taken is P248 913.40.
I am GOBOTSWAMANG LETHOGILE, Box 31935, Serowe." The appellant opposed the application for summary judgment, alleging
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(and I summarise) that:
1.
She was not the only one who worked as a cashier; sometimes when she was away the work was done by someone else and generally they
shared the work.
2.
The account books were never audited.
3.
She was never aware of any problems until she was confronted with an allegation that there were serious shortages in the books of
account for the Mahalapye branch on 6 October 2002.
4.
She was suspended for a month while the books were checked by the Director's wife, Mrs. Kerebotswe and one Theresa Papiso, the manager
of the Serowe branch.
5.
It was never said over what period the shortage occurred. There was never a link shown between her and the shortages; and some of
the relevant books were missing.
6.
She did not steal the money.
7.
On the 9th November 2002 she was informed that she had a shortage of P153 788.10 in respect of sales receipted but not accounted for, and P95
125.30 in respect of sales made but not receipted. (Note: this date must be wrong, since she wrote her letter on the 5th November.)
8.
It was only because of insults and threats that she wrote the letter.
9.
The matter was reported to the Police but since the books were never produced to the police, the matter has not been followed up.
10.
She has not been found in possession of any substantial sums, nor has her life style indicated any sudden new wealth.
11.
The letter she wrote and the figures she confessed to were dictated by Mrs. Kerebotswe, and she has no knowledge of them otherwise.
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12. She was in fear of her life when she wrote the letter.
The principles governing the grant or refusal of summary judgment have been set out so many times that it is unnecessary to repeat
them. I content myself with referring to two leading cases in this jurisdiction -Du Setto & Ors. V. Financial Services Co. (Pty) Ltd. 1994 BLR 274 CA and PGM Building Construction (Pty) Ltd. & Ano. v. Barclays Bank of Botswana Ltd. CA 18/2000.
In general terms, a defence such as that put up by the appellant could succeed. But it has been said time and again that Order 34
Rule 3(b) demands a detailed and candid disclosure of facts -
"If the statement of facts are equivocal or ambiguous or contradictory or fail to canvass matters essential to the defence raised,
then the affidavit does not comply with the rule." (du Setto, supra, at 287 c-d)
There are two aspects of the claim against the appellant in respect of which she has remained silent and where we would have expected
her to put forward an explanation.
In the first place, it was alleged in the particulars of claim that she, together with her parents, undertook to repay the amount
in instalments from November 2002. She has not done so. More importantly, she has
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not disputed that this undertaking was given. She has not explained why it was given, though it must have been given after the alleged
immediate threat of harm had been avoided. She has not filed affidavits from her parents to explain why they were willing to help
her pay sums of money which she did not owe.
Secondly, it is apparent that she allowed the terminal benefits due to her upon her dismissal to be set off against the amount allegedly
owing. That is why the claim is lower than the amount allegedly stolen by P2 330.00. Why did she do that? Once she was away from
the immediate threat of harm at the premises of the respondent, why did she not repudiate her admission, and demand payment of her
terminal benefits? She could have complained to the Labour authorities. Indeed she could have alleged unfair dismissal. But she did
none of that, and has not told us why.
It was for these reasons that the court a quo rejected her defence. We think, with respect, that it was justified in doing so.
Mr. Sechele sought to raise a technical point concerning the description of his client in the summons as "an adult female of
full legal capacity." To describe a female person in this way was criticised in Joina & Associates v. Bakwena Modikwa Civil Appeal No. 8 of 1998.
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We were not prepared to hear Mr. Sechele on this point, because although it was referred to in his client's affidavit, he did not
mention it in his Heads of Argument in the court a quo nor in his Notice and Grounds of Appeal to this Court.
In any event the default was cured by the appellant herself, who in her affidavit stated that she was "a single adult female
of full legal capacity." There may also be some virtue in Mr. Komboni's opposing submission that since the passing of the Abolition
of Marital Power Act No. 34 of 2004, the point is now academic, but we have not pursued it.
The appeal is dismissed with costs.
DELIVERED IN OPEN COURT AT THE COURT OF APPEAL, LOBATSE, this 19th day of JANUARY 2005.
J. J. McNALLY JUDGE OF APPEAL.
I agree,
P. H. TEBBUTT JUDGE PRESIDENT.
I agree,
S. A. MOORE JUDGE OF APPEAL
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