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Masoko v The Attorney-General (Civil Appeal No. 038 of 2005) [2006] BWCA 19 (27 January 2006)
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No. 038 of 2005
High Court case No. MISCA (F) 138 OF 2004
In the matter between
RODNEY ALLIE MASOKO
APPELLANT
AND
THE ATTORNEY-GENERAL
1ST RESPONDENT
BOTSWANA DEFENCE FORCE
2ND RESPONDENT
Lobatse 19 and 27 January 2006
Mr. L. T. Mothusi for the appellant
Mr. Y. Patson with him Mr. K. B. C. Thema for the respondent
J U D G M E N T
CORAM:
TEBBUTT JP
MOORE JA
McNALLY JA
McNALLY JA
1.
The appellant was a private soldier. By letter dated 11 July 2003 he was informed that the Botswana Defence Force intended to discharge
him on the grounds of a recent conviction for striking a superior officer in contravention of section 36(1) (a) of the Botswana Defence
Force Act, Cap 21:05. This action was proposed against a background of two other disciplinary charges in his career of 5 years 2
months in the Army.
2.
He was called upon to show cause within 14 days why he should not be discharged. He wrote a letter on 30 July 2003 in which he put
up some sort of defence against these charges and then asked for forgiveness. On 19 August 2003 he was informed that his submissions
had been considered but found to be insufficient. He was discharged with immediate effect in accordance with section 2 (6) (c) of
the Defence Force (Regular Force) (Discharge) Regulations.
3.
He then filed a Notice of Motion in the High Court, citing the present respondents, in which he claimed the setting aside of his dismissal,
re-instatement, costs and back pay. His supporting affidavit claimed that his dismissal had been unlawful because he was innocent
of the charges against him and in addition the third charge had been tainted by irregularity. He added a claim for P250 000 for false
detention and injuries received when his superior officer and others assaulted him.
4.
The court dismissed his application with costs on the grounds that it was vague and embarrassing, not only because of the variation
between the prayer and the affidavit, but also because “he must state clearly under what law he approaches the court and bring
himself within the purview of that law.”
5.
The appellant appealed on a number of grounds including a reference to the International Labour Convention No. 158 of 1982. However,
we drew counsel’s attention to section 132 of the Act, which provides:
“A person found guilty of a charge dealt with summarily under sections 74 and 75 may appeal to the Defence Council.”
The appellant had not done this, although his charge had clearly been dealt with summarily under section 74(3) (b).
6.
In the absence of an appeal to the Defence Council, the three convictions are res judicata, and we cannot look behind them at this stage. As a result the whole basis of the appellant’s application falls away. His dismissal
was in accordance with the regulations.
7.
Mr. Mothusi was unable to suggest any way around this obstacle to his client’s success, and therefore at the conclusion of the
hearing we dismissed the appeal with costs. We indicated that brief reasons would follow and these are they.
DELIVERED IN OPEN COURT AT LOBATSE ON 27 JANUARY 2006
___________________
N. J. McNALLY
JUDGE OF APPEAL
_____________________
I AGREE
P. H. TEBBUTT
JUDGE PRESIDENT
_____________________
I AGREE
S. A. MOORE
JUDGE OF APPEAL
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