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Attorney General v Kgomo and Others (CACLB03907) [2008] BWCA 15 (30 January 2008)

.RTF of original document

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

                                                                                 CACLB 039-07
                                                               High Court Misca 103 of 2005
In the matter of:

ATTORNEY GENERAL                                                     Appellant

vs.

SHADRACK GERALD KGOMO & 20 OTHERS                          Respondents

Mr. K. N. Sebotho with Mr. J. B. Mpundisi for the
 Appellant
Mr. D. G. Boko for the Respondent



J U D G M E N T


P. H. Tebbutt, J.P.:
F. H. Grosskopf, J.A.:
Dr. Seth Twum, J.A.:


TEBBUTT, J.P.:

1.      
The terms of office and conditions of service of the Respondents, who are all officers employed under and holding divers posts in the Directorate on Corruption and Economic Crime (DCEC) are what is concerned in this appeal.

2.      
In 1994, the DCEC was established pursuant to the Corruption and Economic Crime Act (Cap 08:05) the aim of which was to make comprehensive provision for the prevention of corruption and to confer power on the DCEC to investigate suspected cases of corruption and economic crime. At the time of its establishment, there was no approved scheme of service governing entry into DCEC nor were the academic qualifications required for the various posts and grades of its officers laid down.

3.      
In terms of Section 5(2)(j) of the Public Service Act (Cap 26:01) the responsibility for approving and administering service schemes for public officers lies with the Director of Public Service Management (DPSM). This would include those in the DCEC.

4.      
The newly formed DCEC was, and still is, headed by a Director and a Deputy Director. Prior to its establishment, some twenty police officers from the rank of constable to senior superintendent, who were all serving officers in the Botswana Police Force, were seconded to the DCEC. The first Respondent (to whom for convenience I shall refer herein as “Kgomo”) was one of them. He was a Detective Assistant Superintendent in the Diamond and Narcotic Squad at the time. Some of the other Respondents were also senior detectives. In 1996 Kgomo was promoted to Superintendent.

5.      
Upon his secondment, Kgomo was designated an Acting Senior

Investigator as was another of the Respondents and others were designated Investigators or given divers other designations in the DCEC. On 31 October 1997, Kgomo was promoted to the position of Principal Investigator on grade D4 level.

6.      
Although there was no scheme of service which would guide the progression and/or advancement of officers in the DCEC, there came into existence in 1995/96 an Establishment Register which categorized the posts of Senior Investigator, Investigator and Assistant Investigator, to which Kgomo and other of the Respondents had been seconded, as professional posts.

7.      
It is apposite at this stage to set out, as a brief background as to how this appeal has come before this Court – I shall go into more detail in regard to it later herein – that in 2002 a new or revised Scheme of Service was approved by the Director DPSM. In terms of this Scheme some posts in the DCEC were categorized as falling within a professional model, to which certain salary grades and opportunities for promotion and advancement to the top posts in the DCEC were applicable, while others were categorized as falling within technical and artisan models. Lower salary grades and more limited opportunities for promotion and advancement to those in the professional model applied to posts in these models.

8.      
The criterion as to whether an officer’s post fell into the professional or into the technical or artisan models was, in terms of the Scheme, the academic qualification possessed by the officer, it being necessary that he should have a university degree to qualify for the professional model. Not having a degree disqualified him from falling into the professional model and he would then fall either into the technical or into the artisan model.

9.      
The Director DCEC implemented the new Scheme. In so doing, Kgomo and other Respondents who had been in the professional model prior to the new scheme but who were not holders of degrees were transferred out of the professional model and placed in the technical model, although at the same salaries they were earning prior to their re-designation.

10.     
In consequence, Kgomo and 20 other applicants on 22 February 2004 brought an application by way of notice of motion in the High Court against the Director DCEC and the Director DPSM, both represented by the Attorney General for an order declaring the implementation of the revised Scheme of 2002, inter alia, to be ultra vires and unlawful and the redesignation of the Applicants without affording them an opportunity to be heard to be unlawful and an infringement of their legitimate expectations. I shall refer to the full relief claimed later herein.

11.     
On 30 May 2007, despite strenuous opposition by the Attorney General on behalf of the two Directors, Lesetedi, J. in a written judgment, granted the application and the entire relief sought. It is against that judgment that the Appellant, the Attorney General, now appeals to this Court.

12.     
I return now to a more detailed narrative of the events leading up to the introduction of the Scheme of Service in 2002. That Scheme is attached by Kgomo to his founding affidavit and is marked “SGK35A”. It will be convenient to refer to it as “SGK35A” herein.

13.     
In addition to the Establishment Register of 1995/6 referred to above, in 1997 a Scheme of Service for the DCEC was approved by the Director DPSM. In this Scheme, too, the posts held by Kgomo and one of the other Respondents, Kelennetse Moloko, was placed in the professional category. There was in this Scheme no barrier or ceiling to how far persons in that category could advance or progress and could thus progress, provided normal promotional eligibility criteria such as competence and performance were met, through the ranks right up to the post of Director.

14.     
It would appear that as a result of the adoption at about this time of a Performance Management System, a culture of consultation emerged between top management in the DCEC and staff. This occurred largely by way of meetings. Concerns were expressed at some of those meetings about matters including the remuneration of top professional staff and it was felt that there was a need for the Scheme of Service then in place to be urgently reviewed. In consequence, the Director DCEC constituted an eight-member committee, including Kgomo, to review that scheme. The committee in due course finalized a draft revised Scheme of Service. The committee recommended a change of nomenclature of all posts on various salary grade levels. All those previously designated as “Investigators,” from Principal Investigators down to Assistant Investigators should, it recommended, henceforth to be known as “Anti-Corruption Officers”. Principal Investigators, such as Kgomo, were to become Principal Anti-Corruption Officers (Grade II). It also recommended the up-grading of the various posts. For example, Kgomo’s post, it recommended, should be upgraded from salary scale D4 to D2.

15.     
The draft revised Scheme was discussed between the committee and representatives of the DPSM who advanced certain criticisms of the Scheme. One was that there was an absence in the Scheme of certain progression models recognized in the civil service and that it was deficient in that it did not contain artisan and technical models. This generated intense discussion and the DPSM officials indicated that for completeness those models should be included but, according to Kgomo, they assured the DCEC committee that their introduction would not impact on serving officers or employees already in post. A compromise was reached in which a technical model would be added but not an artisan model. Following certain small corrections and amendments, the Director DPSM on 13 November 2002 gave official approval of the revised DCEC Scheme of Service, with commencement date of 1 November 2002. That is the Scheme SGK 35A. SKG35A superseded the former Scheme of Service of 1997 and now included a technical model.

16.     
The new Scheme of Service also now introduced the necessity for a degree qualification as a requisite for categorization of officers in the professional model.

17.     
It would further appear that SGK 35A, which had to be implemented and put into effect by the Director DCEC, after its approval by the Director DPSM, was only so implemented by him on 1 April 2003. The reason for this, it seems, was that the increases occasioned by the implementation of the Scheme had not been budgeted for in the 2002/2003 financial year but only at the start of the 2003/2004 financial year. These facts, as it will later be seen, will become important in considering the relief claimed by the Respondent.
18.     
On 22 May 2003, the DPSM issued Directive No. 13 of 2002 which amended the Scheme of Service by including in the Scheme an artisan model and by revising the nomenclature of the technician model. The introduction of the artisan model had followed meetings in regard thereto between representatives of the DPSM and the committee of the DCEC, including Kgomo, where the creation of an artisan model and its incorporation into SGK 35A had been agreed to. The amendment sets out the nomenclature of the posts in the artisan model, indicates that those qualifying for such posts did not have to have diploma or degree qualifications and sets out the salary grades for the various posts in the cadre ranging from B3 or B2 at the lowest level to C2 for the top post. In the technical model, which is described as being at “diploma level” i.e. necessitating that those in the posts in that cadre should have a diploma in law or adult education or their equivalent, the nomenclature was changed from “Anti-corruption Officers” to “Anti-Corruption Technical Officers” with the top rank in the cadre being known as “Anti-Corruption Coordinator”. The salary grades ranged from C4 or C3 to D4 for those who were Chief Anti-Corruption Technical Officers to D3 for Anti-Corruption Coordinators. The requirement for a degree as a qualification to be categorized in the professional model remained unaltered.

19.     
On 16 June 2003, Kgomo was, in accordance with SGK 35A, as amended, redesignated to the post of Chief Anti-Corruption Technical Officer on the D4 salary scale i.e. he continued to earn the same salary and be on the same notch in his grade. This was to be with effect from 1 April 2003 i.e. the date on which the scheme was implemented, as set out in paragraph (17) above.

20.     
Pursuant to the amendment of SGK 35A by Directive 13 of 2002, the Establishment Register of the DCEC was corrected to indicate the different models viz. the professional model, the technical model and the artisan model and the posts of those serving in them.

21.     
Following his redesignation, Kgomo on 17 June 2003 wrote to the Director DCEC referring to his redesignation which he said was a “post not established in the 2003/2004 Establishment Register issued in April 2003.” His letter continued:
“I would be grateful if you could give me reasons as to why I have been transferred from the professional model to the technician model when I had been in the professional model since November 1996, the date on which I joined the DCEC on transfer from the Police?”

         He further stated that –
“I note that a transfer to the technician model will limit my progression to Anti-Corruption Coordinator D3, whereas if I were to remain in the professional model my promotional opportunities would not be limited.”
        
22.     
Whether it was Kgomo’s letter of 17 June 2003 or other factors that prompted it, but on 18 June 2003 the Director DCEC wrote to the Director DPSM stating that “a number of technical problems have been encountered in our attempts to implement this Directorate’s new Scheme of Service, Directive 13 of 2002”. He mentioned a problem in regard to posts in the professional cadre and then said that –
“The other problem is that although the technical cadre is reflected in the same register (the Establishment Register 2003/2004) it does not depict the whole picture as far as the redesignation of posts in that cadre is concerned.”

He also pointed out that the recently introduced artisan cadre was not reflected in the Establishment Register at all. He therefore asked the DPSM to redesignate various posts in the different models to remedy the problems and to amend the Establishment Register accordingly. This was duly done.

23.     
On 30 June 2003, Kgomo was promoted by the Director DCEC to the post of Anti-Corruption Coordinator on the D3 salary scale with effect from 1 July 2003, a post he still held when he attested the founding affidavit to the Respondents’ application in the High Court. Kgomo on 8 July 2003 accepted his promotion but without prejudice to his receiving a response to his letter of 17 June 2003 and to a judicial review of the Director’s redesignation of posts in implementation of Directive 13 of 2002. Kgomo said he received no response to the latter letter.

24.     
Certain additional facts germane to this appeal require to be mentioned at this stage. They are the following. Kgomo stated in his founding affidavit that before accepting a secondment from the police to the DCEC he informed the Deputy Director DCEC that he could not transfer to the DCEC on terms less favourable than those he enjoyed in the police, particularly a 15% overtime allowance and a plain clothes allowance. He also raised the likelihood of his being disadvantaged and prejudiced were there to be an introduction at a future date of an academic qualification greater than he possessed, as a criterion for advancement to higher ranks. The Director DCEC who was at the time the Deputy Director, in his answering affidavit, stated that he assured Kgomo he would join on a comparable basis and would retain the overtime and plain clothes allowances but he did not warrant that Kgomo would not be disadvantanged by the possible introduction on a future date as a requirement for further advancement of academic qualifications. Nor, he said, could he have done so as the power to introduce such a requirement was exercisable by an authority other than himself, namely, the Director DPSM.

25.     
Kgomo also stated in the founding affidavit that after the promulgation of
SGK 35A and the commencement of its implementation on 1 April 2003 by the Director DCEC, he went to see the Director who gave him the assurance that those officers who were already “in service” under the professional model would not be affected by the introduction of the technical model. He was, said Kgomo, “emphatic that they would have the right of progression like all their degreed counterparts in the professional model.” The Director said that degree qualifications were only in relation to direct entry and “certainly could not be applied to servicing officers” such as Kgomo. The Director has denied these averments. He repeated what he said in regard to his previous alleged assurances viz. that he could not have done so because this was not in his hands. It lay within the purview of the authority of the DPSM.

26.     
I have set out in some detail the facts in this matter as they apply to Kgomo. I have not done so in respect of each one of the other Respondents, save for Respondent No. 21, Mapula Makgale, to whose case I will refer in due course. The reason for this is that Kgomo is the author of the founding affidavit and all the other Respondents have associated themselves with its contents. The second is that the facts in each of the Respondents’ individual cases vary from one another and in the light of what I conceive to be the result in toto of this appeal, it would make this judgment inappropriately lengthy were I to set out in extenso the individual facts in respect of each Respondent.

27.     
The 21st Respondent’s case, shorn of all the narration of matters leading up to what she complains of and of the correspondence and meetings with personnel in the DCEC, is the following. With effect from 1 August 1998, she was appointed to the post of training officer in the DCEC. This was on a contract with the DCEC. In terms of the 1997 Scheme of Service, this post fell within the professional cadre on the salary scale D4 which was the equivalent grade of a Principal Investigator. In SGK 35A, among positions upgraded to a salary grade of D3 was the redesignated post of Principal Anti-Corruption Officer II which related to, inter alia, “training” which was the responsibility of her post in the 1997 Scheme. She therefore expected to be upgraded to the D3 grade when SGK 35A was implemented on 1 April 2003 and to be back-paid the difference between D4 and D3 from 1 November 2002 when SGK 35A came into operation. This did not occur and she was kept on grade D4, her post under SGK 35A having been redesignated to that of Senior Anti-Corruption Officer (D4). She stated that the progression of training officers had been capped at D4. Her contract was to expire on 22 May 2004. She would have turned 60 years of age on 12 June 2004. On 2 March 2004, she was told that her contract would not be renewed as it expired one month before the compulsory retirement age of 60. She said other civil servants had been employed beyond that age. The 21st Respondent complained that she had been kept on grade D4 when she should have been upgraded to D3 and that she had not been afforded the opportunity to make representations in respect of it in violation of a reasonable expectation in regard thereto.

28.     
In its response to 21st Respondent’s allegation the Director DCEC said that the committee to review the 1997 Scheme of Service was advised against placing any training officer on a level other than D4 as all training officers in the public service were at that level. He could not interfere with this, given that the post belonged to the general administration cadre of the entire public service. The post of training officer was for this reason omitted from SGK 35A. Her post was never redesignated on the D3 level. Her contract was not renewed because of her reaching compulsory retirement age a month later. The DCEC had no legal power to do so.

29.     
As set out earlier, the gravamen of the Respondents’ complaint in the lower court was that, by reason of the terms of SGK 35A, which created not only professional categories but also technical and artisan models – the various categories depending on academic qualifications - they, or some of them, including Kgomo, now found themselves categorized in the technical model and not in the professional model, where they previously were, because they did not possess university degrees, a requisite for the professional cadre. SGK 35A does not permit of transfers across the various models without the requisite qualification.

30.     
The factors in paragraph (29) above, so their complaints continued, meant that they were redesignated by the Director DCEC without affording them a prior hearing in regard thereto. They were entitled to that, they said, and the failure by the Director to afford them a hearing rendered their redesignation ultra vires and unlawful.

31.     
The entitlement to a hearing, the Respondents averred, had its genesis in two legal doctrines: one, the principle of audi alteram partem, the other the doctrine of legitimate expectation. In the court a quo the Respondents also sought to rely on the fact that the implementation of the Scheme had resulted in their being unfairly discriminated against and on the doctrine of ultra vires. In this Court, however, Mr. Boko, for the Respondents, while not abandoning it, did not seek to strenuously pursue the discrimination point and in so far as the doctrine of ultra vires is concerned, he contended himself with submitting that by redesignating Kgomo and other of the Respondents into the technical cadre from the professional category in terms of the Scheme, the action of the Director DC EC was ultra vires and unlawful.

32.     
It must immediately be stated that the Respondents, neither in the court a quo nor in this Court, challenged the validity of SGK 35A. This is not surprising having regard to the provisions of Section 5 of the Public Service Act. As mentioned earlier, Section 5(2)(j) empowers the Director DPSM as head of the public service to approve and administer schemes of services. It is his statutory duty to do so. It is also his statutory responsibility in terms of Section 5 to determine conditions of appointment and the terms of service of persons in the public service (sub-section (a)); staff compliments and gradings (sub-section (d)) and the administration, structure and assessment of salaries. These are all matters reflected in SGK 35A, none of whose provisions are ultra vires the Act or any other Act.

33.     
The responsibility for administering and implementing the Scheme was delegated by the Director DPSM to the Director DCEC in terms of a Public Services Management Directive, with the guidance and advice, where required of the DPSM. In implementing SGK 35A and in order to give effect to its provisions the Director DCEC, in carrying out his duty to manage the Directorate, was obliged to take cognizance of the academic qualifications of the Respondents concerned and as laid down in the Scheme, to place them in those cadres or categories to which the relevance of the various academic qualifications had application. This in the case of some of the Respondents required a redesignation. Although in both the founding and replying affidavit Kgomo contends that, in doing so, the Director did act either incompetently or dishonestly. I can find no basis for coming to such a conclusion.
34.     
It follows that I find that neither Director acted ultra vires and that the lack of challenge to the validity of SGK 35A was completely correct.

35.     
The right which is generally referred to by means of the maxim audi alteram partem has been recognized and applied in numerous cases in the courts of this country as well as the courts of South Africa from whose decisions, as is well-known, our Courts derive much persuasive authority (see e.g. Botswana Housing Corporation vs. Rabana (1997) BLR 106 (CA); Tafic Sporting Club vs. Mokobi N.O. and Another (1997) BLR 177 (HC) esp. at 190; National Amalgamated Local and Central Government and Parastatals Manual Workers Union vs. Mabotseng and Others (2004) 1 BLR 58 (CA); Administrator, Transvaal and Others vs. Traub and Others 1989 (4) SA 731 (AD) at 748F and cases there cited). It is based upon the principle of natural justice which is one of the most ancient in jurisprudence, traceable back to medieval times, and has, as its foundation, that a decision-maker must act fairly.

36.     
As stated by Corbett, C.J. in the Administrator, Transvaal case (supra):
“the classic formulations of the principle state that, when a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or property or existing rights, the latter has a right to be heard before the decision is taken ---- unless the statute expressly or by implication indicates the contrary.” (emphasis added)


37.     
In the present case, neither the decision of the Director DPSM to approve the Scheme of Service introducing the relevant academic qualifications for the categorization of posts in the DCEC nor the decision of the Director DCEC, in implementation of the Scheme, to redesignate Kgomo and other of the Respondents into categories other than those previously occupied by them, affected the latter in their liberty or property. Nor did they affect any existing rights of the Respondents. Their salaries were the same as before and they were, according to Kgomo, still doing the same jobs. Mr. Boko also did not contend that the Respondents had been affected in any right (emphasis added). That, however, is not the end of the matter.

38.     
Originating in 1969 in England and developed in the courts of that country, including the House of Lords (see Schmidt and Another vs. Secretary of State for Home Affairs (1969) 1 All ER 904 (CA); Council of Civil Service Unions and Others vs. Minister for the Civil Service (1984) 3 All ER 935 (HL); and further cases collected in Administrator, Transvaal (supra) at 756 E-F) and imported into the law of South Africa (see Administrator, Transvaal) and now recognized in this country (see Mothusi vs. Attorney General (1994) BLR 246 (CA); Mokokonyane vs. Commander of Botswana Defence Force and Another (2000) 2 BLR 102 (CA), the doctrine of legitimate expectation is firmly part of our law.

39.     
The doctrine of legitimate expectation arises in cases where a person whose claim to a hearing before an administrative decision is taken falls short of a legal right, may nevertheless be entitled to some form of hearing if the interest of that person gives rise to a legitimate expectation. The doctrine also has its roots in natural justice and is also founded on the duty to act fairly.

40.     
It is clear from the cases that “legitimate expectations” are capable of including expectations which go beyond enforceable legal rights provided they have some reasonable basis (see Administrator, Transvaal (supra) at 756 G citing Attorney-General of Hong Kong vs. Ng Yuen Shiv (1983) 2 All ER 346 (PC) at 350C). One of the leading cases in England, which has been frequently cited in later cases both in that country and in South Africa and Botswana is the Civil Service Unions (the CCSU) case supra. In that case Lord Fraser said this at 943 -944:
“But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the Courts will protect his expectation by judicial review as a matter of public law ….. Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. …..”


41.     
And Lord Diplock in that case said a decision by a decision-maker may
affect a person either by altering rights or obligations of that person which are enforceable by or against him in private law or by depriving him of some benefit or advantage
“which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given the opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.”

Lord Diplock also stressed that the expectation must be a “legitimate” one.

42.     
As stated in Administrator, Transvaal (supra) at 758G, a frequently recurring theme in the English cases is a duty on the part of a decision-maker to “act fairly.” However, the duty to act fairly must not be misunderstood or misused (per Lord Roskill in the Civil Service Union’s case). It is not for the Courts to judge whether a particular decision is fair. The Courts are only concerned with the manner in which the decision was taken and the extent of the duty to act fairly will vary greatly from case to case. Many features will come into play including the nature of the decision and the relationship of those involved before the decision was taken. There must be a factual basis for the legitimate expectation.

43.     
The South African courts have, like Lord Diplock, also emphasized that the expectation must be a “legitimate” one. In the Supreme Court of Appeal of that country, Cameron, J.A. who delivered the Full Bench decision in a matter before the court concerning the question of a legitimate expectation cited with approval dicta by Heher, J. in National Director of Public Prosecutions vs. Phillips and Others 2002 (4) SA (W) as to what the requirements were for a “legitimate” expectation. These included a requirement that the expectation must be reasonable. Cameron, J.A. went on to state:
“It is worth emphasizing that the reasonableness of the expectation operates as a pre-condition to its legitimacy. The first question is factual – whether in all the circumstances the expectation sought to be relied on is reasonable. That entails applying an objective test to the circumstances from which the applicant claims the expectation arose. Only if that test is fulfilled does the further question – whether in public law the expectation is legitimate – arise.”

(see South African Veterinary Council and Another vs. Szymanski 2003 (4) SA 42 (SCA) at 50 C).
In my view, the requirement of reasonableness accords with good common sense and should equally apply in Botswana.

44.     
Apart from this requirement and that of a factual basis being essential to it, the parameters of the concept of legitimate expectation have not, either in South Africa or Botswana been well defined. Corbett, C.J. in the Administrator, Transvaal case (supra) at 761F said this of the doctrine:
“Like public policy, unless carefully handled it could become an unruly horse. And, in working out, incrementally, on the facts of each case, where the doctrine of legitimate expectation applies and where it does not, the Courts will, no doubt, bear in mind the need from time to time to apply the curb. A reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in their administration.”


45.     
In deciding whether the Respondents had a legitimate expectation that either the Director DPSM or the Director DCEC would afford them a hearing before the latter redesignated their posts, four aspects would seem to call for consideration. Before considering these, however, I would stress that the Respondents do not seek to attack the validity of SGK 35A. That being so, it follows that they also do not attack the categorization of the posts in the DCEC into professional, technical and artisan cadres. In this regard, it must be remembered that Kgomo was on the committee that formed part of the consultative process in accepting the said categorization. Nor, by not attacking the validity of the Scheme, do they challenge the academic qualifications involved in arriving at the categorization. In consequence, any failure to afford them a hearing cannot be laid at the door of the Director DPSM. I can, with respect, not agree with Lesetedi, J. who, at one point in his judgment, feels it should be. Their complainant must, therefore, be aimed at the Director DCEC who, in implementing SGK 35A, redesignated those Respondents affected by his decision into the various cadres.

46.     
The first of the four aspects mentioned concerns the remuneration of the Respondents. It is undisputed that the redesignation of Kgomo’s post and those other of the Respondents which had the effect of transferring them from the professional to the technical or artisan cadres did not involve any loss of salary or other benefits such as an overtime and a plain clothes allowance which they retained. No deprivation of any benefit therefore occurred in respect of the Respondents’ remuneration and no more need thus be said about it.

47.     
The second aspect which might give rise to a legitimate expectation is any assurance given to any of the Respondents. It will be recalled that Kgomo averred that the Director DCEC had given him an assurance that he and other Respondents would not be disadvantaged by any introduction of an academic qualification greater than theirs as requisite for their advancement. This, he averred, gave rise to a legitimate expectation that if any such introduction occurred they would be afforded a hearing in regard to it. That would fall within the class of legitimate expectation referred to by Lord Diplock in the CCSU case (supra) which had as its basis an assurance by the decision-maker, such as that which Kgomo said he had received. The Director, it will also be recalled, denied having given such an assurance and said that he could not have done so as he was not in a position to give it.

48.     
In the court a quo, Lesetedi, J. said the following:
“The applicants’ assertion of a legitimate expectation arising from an undertaking by the Director, DCEC faces a number of difficulties. The undertaking is said to have been oral. Its existence is vehemently denied by the Director DCEC. The denial raises a dispute of fact which on the facts of this case is very real. Even on a robust approach it cannot on the probabilities be resolved in favour of the applicants. Further, it appears that the Director, DCEC was not, in the light of the provisions of Section 5(2) of the Public Service Act, the competent authority to make the undertaking as to what will or will not be included in a future scheme of service.”

         I agree entirely with these remarks.

49.     
In regard to the third aspect, a starting point is to quote from the judgment of Lesetedi, J. in the court a quo comparing the post in Kgomo’s case of Senior Anti-Corruption Officer in the professional model with that of Chief Anti-Corruption Technical Officer to which he was redesignated, he said:
“The responsibilities of the above two posts contrast unfavourably in terms of responsibility and ranking in the organization”.
He went on to say this:

“A position of responsibility in an organization is a benefit or an interest which carries with it not only status and rank in an organization but also certain other benefits that go along with that position. For those responsibilities to be taken away, an officer is entitled to a prior hearing.”

50.     
Two points emerge straightaway. Firstly, no responsibilities of the Respondents were taken away. Kgomo says that he and the other Respondents are still doing the same job that they were doing prior to the redesignation. It may well be that some of them, Kgomo in particular, may have fewer personnel reporting to them or that the nature of the work may have varied in some respects. In almost all forms of employment, responsibilities of employees and the nature of their tasks may be changed. That can, however, not give rise in all instances to an expectation that the employer should give an employee a hearing before doing so. It would make the function of management completely impossible of fulfillment. Any expectation an employee may harbour in this regard would clearly not be a “legitimate” one. It may be that the particular or unusual circumstances of a case require that a hearing be given but this is not such a case. As far as status is concerned, this is a subjective factor. It is how a person thinks that others perceive him. A change of responsibilities or of tasks may or may not alter that perception. It is a vague and amorphous concept that cannot give rise to a legitimate expectation. Secondly, there is no evidence of any “other benefits” that the Respondents may have lost. This seems to be a matter that the learned Judge has added to give more substance to his point of view.

51.     
The fourth and last aspect is this. The Respondents contend that by transferring them from the professional to the technical cadre their opportunities for promotion have been prejudiced. They say that in the technical cadre their promotion opportunities are limited whereas in the professional cadre, where they were previously categorized, their opportunities were not limited and they could have advanced all the way up to the ranks, even to the post of Director. Because of this, they were entitled to a hearing before they were redesignated.

52.     
As stated by Heher, J. in the National DPP v Phillips case (supra) one of the requirements for a legitimate expectation is that the expectation must have as its basis one that is clear, unambiguous and devoid of relevant qualification. Moreover, it must, applying an objective test, be a reasonable one. The expectation contended for by the Respondents is obviously not devoid of relevant qualification. Numerous factors come into play in the assessment of promotion: competence, ability, performance, health; and nearness to retirement being but some of them. The list is not exhaustive. Nor is the expectation reasonable. By reason of their academic qualifications, it would not be reasonable to expect to be advanced over those with better qualifications even though in this case the present Director has not, it would seem, have a degree. He was the incumbent in the post of Deputy Director, chosen as such when the Department was created and when no specific qualification for his post or that of the Director, to which he was promoted, was required. I therefore hold that the Respondents did not have any legitimate expectation on this aspect, notwithstanding any subjective aspirations they may have harboured in their minds (cf. Mokgopo and Others v The Establishment Secretary and Another (2006) 1 BLR 309 (CA) at 316-317).

53.     
I would also wish to repeat what was stated earlier herein. The Director DPSM brought into being a scheme of service for the DCEC as he was entitled to do in terms of Section 5(2) of the Public Service Act. He did so after comprehensive consultations with all constituents of the DCEC, including representatives of the Respondents. Moreover, as mentioned oft times earlier herein, the validity of the scheme i.e. SGK 35A has never been challenged by the Respondents. The Director DCEC was, in turn, obliged as part of his duties to implement the scheme. To give effect to its provisions, including the necessity for applying in the DCEC the required academic qualifications, the Director was obliged to redesignate the posts in the DCEC appropriately. There was thus no obligation on his part to give any person affected by the redesignation a hearing, nor could there have been.
54.     
In regard to the case of the 21st Respondent, it seems clear from what the Director DCEC stated that the post held by the 21st Respondent was in line with all technical officers in the public service and was on the D4 salary scale. The committee to review the 1997 Scheme of Service was, he said, as set out above, advised against placing any training officer on a level other than D4. This is emphatically denied by Kgomo who was a member of that committee. This raises a dispute of fact as to what the committee was told. Whatever the position may have been in this regard, it seems, in my view, clear from SGK 35A that the post of training officer fell outside and was separate from the duties of the Anti-Corruption Officers. She says that as one of the duties of Principal Anti-Corruption Officer II, whose post is on the D3 scale included inter alia “training” she should have been placed on that level as training was what she was doing. That officer’s duty was to plan training which would obviously have to be carried out by someone else. One of the duties of an Anti-Corruption Co-ordinator, who is also on the D3 level, is to “develop training programmes for subordinates”. Again, that differs from the duties of the 21st Respondent.

55.     
Those duties appear under the rubric “Training” in SGK 35A. It provides that a major element of the DCEC’s training programme would be carried out “on the job,” supplemented by formal in-house courses under the co-ordination of the training officer. It is, in my opinion, therefore, not improbable that this post fell within the general administration cadre of the public service, all of whose incumbents were on D4. Nowhere in SGK 35A is it stipulated that the training officer’s post should be on the D3 level. I can therefore not find that the statement of the Director DCEC that he had no authority to treat the 21st Respondent in any other way than leaving her on D4, was incorrect. She would, therefore, have had no legitimate expectation for any hearing by the Director. Nor would she have been entitled to any hearing in regard to the failure of the Director to renew her contract when she was one month away from the prescribed retirement age (cf. Mothusi v Attorney-General 1994 BLR 246).

56.     
Finally, it will be remembered that the Respondents claim that the “effective date” of the coming into operation of the Scheme i.e. (the commencement date) being 1 November 2002 and the implementation of the Scheme having only come into effect on 1 April 2003, they should, had there been any redesignation of their posts to a grade higher than those they previously occupied, been paid from 1 November 2002 to 1 April 2003.

57.     
Any contention in that regard would have depended upon their being designated into a category higher than that to which they were in fact, in terms of SGK 35A, redesignated. In the light of the Courts’ decision as earlier set out, that contention cannot be sustained. It must, however, fail

for another reason. In the first place, paragraph 6.1.2 of SGK 35A states that:
“The Scheme of Service allows for the development of the Directorate and does not constitute an authority for new posts or new gradings which must be sought through appropriate channels.” (emphasis added)

Those channels would obviously include the provision for the necessary funding for such posts.

58.     
Section 5(2)(e) of the Public Service Act, gives to the Director DPSM the authority to administer, structure and assess salaries. Regulation 3 of the Public Service Regulations enables him to carry out such responsibilities where funds are available. In terms of Section 117 of the Constitution, all revenues in Botswana must be paid into the Consolidated Fund and no funds shall be withdrawn except where that has been authorized by an Appropriation Act. Claims for funding from the Appropriation Act are made annually as part of the budgeting process. This usually occurs prior to 1 April in each year, whereafter the funds become available to the various departments who have submitted their requirements for funding. (see Section 119 of the Constitution). Only in the case of an urgent or unforeseen need can funding be sought earlier from the Contingency Fund, established for that purpose. (see Section 121 of the Constitution).


The implementation of SGK 35A is not such an unforeseen or urgent need. In casu, therefore, the obtaining of the necessary funding entailed

the implementation of SGK 35A by the Directorate DCEC only on or after 1 April 2003 and certainly not from 1 November 2002.

59.     
It follows that I hold that the Respondents failed in the court a quo to establish any other basis for their claims in that court and that their application in that court should have been dismissed.

60.     
At the hearing of the appeal in this Court, the Court intimated that the relief claimed in the court a quo was too wide and too vague to be capable of being granted in the terms claimed or to any order, based on them, to be implemented or carried out. It accordingly asked Counsel for the Respondents that they be suitably revised. This was done and a fresh set of simplified claims was filed. However, in the light of this Court’s finding as set out above it becomes unnecessary to say anything more about them.

61.     
In the result the appeal succeeds.
The following order is made:
1.      
The appeal succeeds, with costs.
2.      
The order of the court a quo is set aside and replaced with the following order:
“The application is dismissed with costs.”

Delivered in open court at Lobatse this 30th day of January 2008.


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P.H. TEBBUTT
Judge President




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I agree           F.H. GROSSKOPF
Judge of Appeal




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I agree                    DR. S. TWUM