SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 2005 >> [2005] BWCA 6

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Ditshewene and Another v Attorney General (Civil Appeal No. 2 of 204) [2005] BWCA 6 (28 January 2005)

PDF of original document.PDF of original document

.RTF of original document

IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal 2/04 High Court Misca No. 187/2003
In the matter between:
MOREKWE DITSHWENE        l*t Appellant
BOKANG M. NAKEDI         2nd Appellant
(duly herein assisted by Mr. Nakedi)
and
THE ATTORNEY GENERAL     Respondent
(Representing the Administration of Justice of the Republic of Botswana)
Mr. B. D. Leburu for the Appellants Mr. Kamwendo for the Respondents
JUDGMENT
CORAM: ZIETSMAN JA
LORD SUTHERLAND JA GROSSKOPF JA
ZIETSMAN JA:
The appellants are members of staff of the Lobatse High Court and are employed as court reporters. In March 2000 they were selected and sent to undergo a study program at Virginia School of Technology in the

United States of America. The program was initially planned to last for a period of 27 months beginning in April 2000 and ending in June 2002. The appellants' attendance at the school of technology was sponsored by an institution known as the Academy for Educational Development ("AED") with offices in Gaborone and in Washington. The program officer from AED referred to in the papers was Mrs. Orapeleng.
The appellants entered for the study program and their instructor and academic advisor at the Virginia School of Technology was Carol Campbell.
In order to successfully complete the program the appellants had inter alia, to achieve a speedbuilding type standard of 140 words per minute. This was considered to be the most difficult part of the program and it is common cause that both of the appellants failed to reach the required standard.
On 17 January 2002, when it became clear to the appellants that they would not be able to reach the required speedbuilding standard by the end of June, they wrote a letter to the Registrar of the High Court in Lobatse requesting an extension of their study period at the school for a further year i.e. until the end of June 2003. Their instructor and
2

academic advisor, Carol Campbell, supported their application and referred to them as being "excellent students".
During March 2002 Mrs. Orapeleng, of AED, submitted academic reports in respect of the two appellants to the training coordinator at the High Court in Lobatse.
The appellants continued with their studies at the school, and on 15 October 2002 their academic advisor, Carol Campbell, wrote to the AED representative in Washington advising her that both of the appellants had been unable to advance their type speed beyond 120 words per minute. She stated, however that in her opinion they would be able in time to improve their speed satisfactorily.
The registrar of the High Court in Lobatse considered the appellant's
request for an extension of their period of study until the end of June
2003. He however decided that an extension only until the end of March
2003 should be granted. This was confirmed by letter dated 6 November
2002 written by the registrar to AED in Gaborone. In the letter the
registrar wrote:
".... The period of training for (the two appellants) has been extended to 31 March 2003. It should be noted that programme will not be extended beyond March 2003."
3

It is common cause that this decision was communicated to the two appellants and that the necessary departure packets to enable the appellants to leave the U.S.A. at the end of March 2003 were given to them.
The appellants were however not happy with the decision to extend their study period only to the end of March 2003. They wanted the period to be extended to the end of June 2003. Various telephonic communications between the appellants and the registrar of the High Court in Lobatse took place and it is common cause that in February 2003 the registrar told the appellants that he would solve the problem "once and for all."
There does not appear to have been any further written communication relevant to this matter until April 2003.
On 4 April 2003 the secretary for the department of the Administration of Justice in Lobatse telephoned the appellants and told them that the registrar required them to put their request for a further extension of their study period in writing, stating the reasons why they wanted a further extension.
On 8 April 2003 Carol Campbell wrote to the representative of AED in Washington advising her that the two appellants had failed to reach the
4

required speed. The first appellant had reached the 120 per minute time speed on 28 October 2002 and the second appellant had reached the 120 word per minute standard on 9 November 2002. There had apparently been no further progress by either of them.
Carol Campbell stated in the same letter that both appellants were then enrolled for the 140 per minute speedbuilding classes but had so far not been able to reach the required speed.
On 10 April 2003 the AED representative in Washington advised the registrar of the High Court in Lobatse by E-mail that the two appellants were not making satisfactory progress and she recommended that the appellants return home. She stated that the appellants had passed a type speed of 120 words per minute only. She confirmed further that the appellants had been informed in November 2002 by AED that their study program had been extended only to the end of March 2003.
On 11 April 2003 the registrar wrote a letter to AED in Gaborone requesting AED to advise the appellants that they should report for duty in Lobatse on 22 April 2003.
On 15 April 2003 the appellants launched an urgent application in the High Court in Lobatse in which they claimed an order against the Botswana Government compelling the government to provide them with
5

their "stipend" and the necessary requirements to enable them to continue their studies at the Virginia School of Technology until the end of June 2003. A rule nisi was granted on 17 April returnable on 2 May 2003. An opposing affidavit was filed by the registrar of the High Court in Lobatse dated 30 April 2003. The matter was postponed several times. Judgment was finally given on 27 January 2004 dismissing the rule nisi. An appeal was noted by the appellants on 9 March 2004 and according to their Notice of Appeal they now seek an order in terms of prayers 1 and 2 of their initial application namely an order :
1.     
that the respondent be "directed to pay the applicants (present appellants) the stipend until the end of June 2003."
2.     
that the respondent "be ordered and directed to continue to provide the services that they hitherto provided until the end of June 2003 wherein the applicants (appellants) shall return back home to Botswana."
 3.     
that the respondent be ordered to pay the costs.
Due to the lapse of time the orders now sought by the appellants would be largely meaningless. The essence of the appeal, however, is to determine whether the rule nisi was correctly discharged by the court a quo. The determination of that question will affect the costs of the application and of course the costs of the appeal.
6

In their affidavits the appellants allege that during October 2002 they were advised that they would have to discontinue their studies and return to Lobatse at the end of May 2003. They allege that a new quarter at the school, referred to as the spring quarter, was from 7 April until the end of June 2003. This being the case it would make little sense for them to terminate their studies at the end May, halfway through the quarter.
There are no documents in the record indicating that the appellants were told that they could continue with their studies until the end of May. The appellants allege that they were advised by AED also in January 2003 that their scholarship would end in May. They allege that this was communicated to them by their "course director". Presumably they mean Carol Campbell, their instructor and academic advisor. Their allegation that they were advised that they could continue with their studies until the end of May is denied by the respondent. No affidavit was obtained from Carol Campbell to support the appellants' allegations. The correspondence entered into with her, and attached to the affidavits, makes no reference to May. An affidavit by Thandi Molefe of AED was filed by the respondent. In this affidavit reference is made to the extension of the appellants' study period to the end of March 2003. No mention is made of May.
7

On the affidavits it must accordingly be accepted that the appellants' study period was extended to the end of March 2003 and that the dispute between the parties refers to the period from April to the end of June. The allegation that they were told that they could continue until the end of May is disputed and must, on the papers, be rejected. There is no indication in the papers that the respondent ever agreed to an extension of the appellants' study period to the end of June 2003. The only concession made by the respondent was to extend the period to the end of March.
It is common cause that the appellants endeavoured to have the period extended to the end of June, and that they had several discussions with the registrar of the High Court in Lobatse in this connection. It is also common cause that in February 2003 the registrar indicated to them that he would resolve the problem. They apparently had no further communication with the registrar until April when they were told to return to Lobatse. By that time the registrar had received further information and was apparently satisfied that the appellants were not going to benefit any further from their studies and he instructed them to return and to report for duty in Lobatse on 23 April 2003.
The appellants allege that there was in the circumstances uncertainty regarding the extension of their study period beyond March 2003. They
8

allege that the principles of natural justice required that they be consulted further before the final decision was taken refusing their requested extension to the end of June 2003. They allege further that because of the registrar's delay in making a final decision they had a legitimate expectation that no final decision would be made without giving then an opportunity to present their case more fully to the registrar.
What must be borne in mind is the fact that the appellants were seeking an indulgence. They had been told in November 2002 that their study period would not be extended beyond March 2003. They had been sent their departure packets to enable them to make the necessary arrangements for their departure. They elected not to make use of their departure packets but to endeavour to have their study period further extended. They were not at any time told that the period would or might be extended. Their request was considered and rejected.
In the circumstances it cannot be said that natural justice demanded that they be given a further opportunity to advance their request, or that they had a legitimate expectation that no final decision would be taken until such further opportunity was given to them.
9

The order they sought was an order that their study period be extended to the end of June 2003. They failed to make out a case justifying such an order.
In the circumstances the appeals of both appellants are dismissed with costs.
DELIVERED IN OPEN COURT AT LOBATSE THIS...<r ...DAY OF JANUARY 2005.
N. W. ZIETSMAN JUDGE OF APPEAL

I agree
LORD R.I. SUTHERLAND JUDGE OF APPEAL


I agree
F. H. GROSSKOPF JUDGE OF APPEAL

10

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/2005/6.html