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IN THE HIGH COURT
OF BOTSWANA HELD AT LOBATSE

MAHLB-000172-12

DATE:
12 APRIL 2013

IN THE MATTER
BETWEEN:

BOTSWANA
LANDBOARDS & LOCAL AUTHORITIES WORKERS UNION…………….1ST
APPLICANT

BOTSWANA PUBLIC
EMPLOYEES’
UNION…………………………………………………………….2ND
APPLICANT

NATIONAL
AMALGAMATED LOCAL &

CENTRAL &
PARASTATAL GOVERNMENT

WORKERS
UNION …………………………………………………………………………………………………3RD
APPLICANT

AND

THE DIRECTOR OF
PUBLIC SERVICE

MANAGEMENT…………………………………………………………………………………………………….1ST
RESPONDENT

THE ATTORNEY
GENERAL…………………………………………………………………………………2ND
RESPONDENT

Attorney Mr M. M.
Chilisa for the Applicants

Attorney Mr C. L.
Gulubane for the respondents

RULING

TAU J.

1. By notice of
motion filed on the 14th March 2012, the Applicant launched an
application for leave to institute a review application
out of time
in terms of Order 61 Rule 8 of the High Court Rules. The notice of
motion is in two parts. Part A deals with leave
to institute the
application out of time whilst part B deals with Review Proceedings.

2. For Part A, the
Applicants sought the following orders:

a) Granting leave
for the institution of this application outside the four months
period permitted in terms of Order 61 Rule 8;

b) Ordering and
directing that the affidavit which accompanies this notice of motion
stands as the affidavit in the review proceedings;

c) That Part B of
this notice of motion, together with paragraph 4 hereof, be published
in the Mmegi and Government Gazette, within
5 days of granting of
order to extend an opportunity to be heard to expatriate public
officers who wish to be heard with respect
to the relief sought in
Part B;

d) That any such
expatriate public officer who has direct and substantial interest in
the orders sought in Part B of the notice
of motion who seeks to be
joined as a respondent shall within 7 days from the last publication
of Part B of this notice of motion
, by notice delivered to the
Applicants’ attorneys indicate his or her wish and in the same
notice indicate his or her full

names together with
an address for service in Botswana;

e) That for every
expatriate public officer who has indicated his desire to be joined
the Applicants shall serve a copy of the founding
papers;

f) That the filing
of any answering affidavits by expatriate employees shall following
service upon them of the founding papers
be in terms of the Rules of
the High Court;

g) Costs of this
application to be reserved for determination when the relief in Part
B of the notice of motion is sought.

3. On Part B, the
Applicants seek the following orders:

a) The Respondents
be called upon to show cause why the decision taken by the First
Respondent, contained in a circular dated 3rd
August 2011, in terms
of which the First Respondent extended a more favourable increment to
expatriate public officers, should
not be reviewed and set aside;

b) Declaring the
First Respondent’s decision a nullity and of no force and
effect;

c) Ordering the
payment by the Respondents, jointly and severally of the costs of the
application for the relief in Part A and Part
B.

4. The Respondents
filed an application for an order to set aside the proceedings as
irregular. They set out the following grounds:

a) That the
application does not comply with the provisions of Order 13 of the
Rules of the High Court in regard to the time limits;

b) That the review
application has been lodged with the court without prior leave of the
court as per the provisions of Order 61
Rule 8;

c) That the matter
is pending before his Lordship Justice Rannowane in case number
000037-12.

5. The facts giving
rise to these proceedings are common cause. The Applicants are
Workers’ Unions representing various segments
of workers who
are public officers. The

First Respondent
issued a circular dated 3rd April 2011 in terms of which she awarded
non-citizen public officers salary increase
in excess of those
awarded to citizen public officers. She used a sliding scale to
implement a salary increase for some of the
expatriates which was
said to be impossible to use for citizen public officers. The
circular followed protracted negotiations which
failed and led to an
industrial strike for an indefinite period where public officers
demanded 16% salary increase for all public
officers. In October 2011
government implemented a 3% increment across the board for all
citizen public officers. This aggrieved
the public officers hence the
present application.

6. It is common
cause that the decision was made on the 3rd August 2011 and the
notice of motion was only filed on the 14th March
2012. This was a
period in excess of six months. It is therefore clear that
application for review would be out of time.

7. The Respondent
raised the issue of non-compliance with the provisions of Order 61
Rule 8. Order 61 Rule 8 provides as follows:

“Except with
the leave of the Judge on good cause shown, no application for review
shall be brought later than four months
after the handing down of the
decision or conclusion of the proceedings complained of.”

8. From the above
stated provision upon expiration of four months after a decision has
been handed down an application for review
can only be brought with
leave of the Judge and that leave must be applied for.

9. The Applicants in
this matter has sought leave. The notice of motion that was filed on
the 14th of March 2012 has Part A which
sought leave of the court to
bring the application outside the set time limit. Both the notice of
motion and the founding affidavit
address the issue. This point
therefore falls by the wayside.

10. The Respondents
also argued that the application does not comply with the provisions
of Order 13 of the Rules of the High Court
in regard to time lines.
The Applicants argued

that this point was
raised in January 2012 after they had initially filed an application
and that matter was cured by withdrawing
it and relaunching the
application after addressing that.

11. Infact under
Part B of the notice of motion the Applicants stated that the
Respondent are given 14 days within which to responded
and this kicks
in only after leave has been granted. This ground is therefore
without merit and is dismissed.

12. On the third
ground the Respondents argued that the matter is pending before
another Judge. The Applicants have indicated that
they had withdrawn
that matter and had launched this application after the application
for withdrawal was granted. Without any
facts to the contrary I am
bound to accept what the Applicants stated that that matter was
withdrawn and the application was only
relaunched after curing the
defects which were complained of by the Respondents.

13. On the basis of
the above the application by the Respondents to set aside the
application as irregular is dismissed with no
order as to costs

14. I will now
proceed to examine the application for leave as filed by the
Applicants. The question that arises is whether good
cause has been
shown by the Applicants for the court to grant leave in terms of
Order 61 Rule 8.

15. In the case of
Maselesele v Commissioner of Botswana Police Service [2010] 1 BLR 496
at 499 Makhwade J said:

“For the Judge
to grant leave an application for leave must be applied for. In that
application the applicant must show good
cause. In examining the
application the Judge will have regard to the degree of lateness of
review, reasons for the delay, and
the merits of the case as
presented in the application for leave.”

16. This was also
confirmed by the Court of Appeal in the case of Koosaletse and others
v Alidi and another [2010] 1 BLR 235 at 237 where it was said that:

“A court in
considering condonation will, in determining good cause under Rule 8,
have regard to the Applicants facts to determine
not only the merits
of the review but the degree of lateness and whether such lateness
has been reasonably explained. In other
words, it will

consider the
relevant explanation and the merits together as one issue – the
existence of good cause.”

17. The Applicants
argue that the decision was made on the 3rd August 2011 and it came
to their attention on the 24th October 2011.
A statutory notice was
delivered to the Respondent’s on the 25th October 2011 and the
Applicants waited for an explanation
which was not forthcoming.
Instead the first Respondent denied the allegation over the radio. It
was upon further investigations
that the Applicants met on the 12th
January 2012 and resolved to institute proceedings.

18. The Applicants
further argued that the review is in the public interest, and raises
a critical issue of whether it is lawful
for the first Respondent to
award different salary increments to public officers doing the same
work based on the fact that one
is a citizen whilst the other is an
expatriate.

19. The explanation
by the Applicants is not controverted. The Applicants averments that
they came to know of the

decision in October
2012 and acted upon it remains unchallenged. Assuming the clock
started ticking then, the Applicants first filing
would be within
time and therefore compliant with the relevant High Court Rules. If
the central contention of the Respondents revolves
around the date of
the relaunch of the application, the delay boils down to three
months. The issue then becomes whether the delay
is reasonable or
not. Given the uncontroverted explanation tendered by the Applicants,
this court views the delay as reasonable.
Furthermore considering
that the review is in the public interest and raises a critical
issue, I am of the view that the test of
good cause has been met.

20. In the
circumstances of this case I find that good cause has been shown and
the application for leave is therefore granted.
It is therefore
ordered that:

a) The application
to strike out is dismissed with no order as to costs.

b) The Applicants
are hereby given leave to institute review proceedings outside the
four months.

c) The Applicants’
founding affidavit in the application for condonation shall stand as
its founding affidavit in review proceedings.

d) Costs of this
application to be reserved and determined during review proceedings.

DELIVERED IN OPEN
COURT AT LOBATSE ON THE 12TH APRIL 2013.

T. TAU JUDGE

Otto Itumeleng
Chambers – legal practitioner for the Applicants

Attorney General
– Legal practitioner for the Respondents

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