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IN THE HIGH COURT
OF BOTSWANA HELD AT LOBATSE

M
AHLB-000244-12

DATE:
15 MARCH 2013

IN THE MATTER
BETWEEN:

OSHIMA ONALENNA
SELEMA……………………………………………………………….APPLICANT

AND

THEBEYAME
TSIMAKO………………………………………………………………1st
RESPONDENT

(COMMISSIONER OF
BOTSWANA POLICE SERVICE N.O)

BOTSWANA POLICE
SERVICE………………………………………………….2ND
RESPONDENT

ATTORNEY
GENERAL……………………………………………………………..3RD
RESPONDENT

Attorney Mr
Manewe for the Applicant

Attorney Mr
Itseng for the Respondents

JUDGMENT

TAU J

1. The Applicant,
Oshima Onalenna Selema, by way of notice of motion, brought an
application seeking the following orders:

1. Reviewing and
setting aside the decision of the 1st Respondent to order a retrial
in the disciplinary matter of the Applicant
because he did not apply
his mind to all material facts hence the decision he arrived at is
wrongful and unlawful;

2. An order
declaring the decision of the 1st Respondent in ordering a retrial
unreasonable, irrational oppressive, unfair, unjust,
wrongful,
unlawful and in violation of the Applicant’s right to be heard
before a decision prejudicial to him is taken;

3. An order
confirming the decision of the 1st Respondent to quash conviction and
sentence; and

4. That the
Respondents should pay costs of this application.

5. In this matter
the 1st Respondent is the Commissioner of Police and the person whose
administrative decision is being challenged.
The 2nd Respondent is
the Administrative Body and 3rd Respondent is the Attorney General
who has been joined as a party to these
proceedings by reasons of her
being the legal adviser of the Government and one who is required to
act for and on behalf of any
civil servant in terms of the State
Proceedings Act. The Attorney General is therefore representing the
1st and 2nd Respondents.

6. The case for the
Applicant is articulated principally in his affidavit. At the time of
launching of this application the Applicant
held the rank of
Sub-Inspector of Botswana Police Service stationed at Central Police
Station in Gaborone. His career as a police
officer started in
January 1990 with his appointment as Constable. He subsequently rose
through the ranks. On the 15th April 2010
the Applicant was served
with a letter of suspension on allegations of having committed a
criminal offence. The suspension was
on full salary. Investigations
were carried out and were concluded on the 14th June 2010. The
Applicant was charged with a single
count of acting in a corrupt
manner contrary to section 23 (b) (iii) of the Police Act. On the
17th August 2010 the Applicant was
interdicted on a 25% salary cut.
The Applicant underwent a trial before a class II board which
convicted him on one count of acting
in a manner likely to bring
discredit to the reputation of the service contrary to section23 (d)
(i) of the Police Act.

7. The Applicant
made representations to the 1st Respondent, contending that his
conviction was fundamentally flawed and ought to
be quashed. The 1st
Respondent wrote to the Applicant on the 21st March 2011 indicating
that he had ordered a new trial under a
differently constituted board
because there was an irregularity in the conduct of proceedings
relative to the trial he had undergone.
The Applicant was incensed by
this new development and this prompted the present application.

8. Normally in
review proceedings the court ought to be satisfied that the Applicant
has made out a case for the review of the decision
of the Respondent.
The onus

therefore lies on
the Applicant to show that the decision complained of was
unreasonable, unfair and irrational that no reasonable
person could
have come to it. See AUTLWETSE V BOTSWANA DEMOCRATIC PARTY 8b OTHERS
[2001] 1 BLR 230.

9. If the
Commissioner acted within the parameters of the Police Act or if in
exercising his discretion he acted in accordance with
the letter and
spirit of the Act, then that would be the end of the Applicant’s
case because the issue of reasonableness
would not arise. The issue
therefore is whether the Commissioner, in ordering a retrial, acted
contrary to his statutory powers.

10. The thrust of
the Applicant’s contention is that the decision for retrial was
wrongful and unlawful since he was not afforded
an opportunity to be
heard prior to the decision being taken. The Applicant’s
assertion that he was not afforded a hearing
by the Commissioner of
Police prior to the decision was an uncontroverted fact. He therefore

submits that there
was no compliance with the audi alteram rule.

11. The rule is that
when an official contemplates taking a decision which prejudicially
affects an individual’s liberty or
existing rights then he has
a right to be heard before a decision is taken unless there is a
statute indicating to the contrary.
See ARBI V COMMISSIONER OF
PRISONS 8b ANOTHER [1992] BLR 246 AT 251. Looking at the
circumstances of this case, would the rule cover the Applicant?

12. Counsel for the
Respondents argued that it does not. His contention is that the Act
specifically excludes the right to be heard
prior to the decision of
retrial being made. His argument is that the Act guarantees this
right only where the Commissioner elects
to substitute the conviction
and sentence pursuant and not when a retrial is ordered.

13. The question can
be answered by reference to the provisions of the Police Act
especially section 29 (2). Section 29 (2) of the
Police Act provides
that:-

“On receipt of
a record of proceedings forwarded to him in accordance with
subsection (1), the Commissioner may –

1. Within the powers
of the Board concerned vary, reverse or confirm the sentence passed
by that Board, which power of variation
shall include the power to
substitute for any punishment awarded by the Board a punishment of a
different kind;

2. Substitute for
the conviction record and the punishment awarded by the Board
concerned in respect of any offence a conviction
and punishment in
respect of a different offence the commission of which he is
satisfied has been proved, whether that, different
offences was or
was not charged, and in respect of such substituted punishment he
shall have

power to award any
one or more of the punishments which the Board concerned was
empowered to award; and

3. Order or new
trial before a different Board (my emphasis) Provided that –

1 the Commissioner
shall not, under paragraph (b), substitute a conviction and
punishment in respect of a different offence which
was not charged
without first giving the police officer in question the opportunity
to address him;” (my emphasis)

2. From the reading
of the above section it is clear that the legislation by implication
is not supportive of the contention of
the Applicant that he was
denied a legitimate right to be heard. Assuming that the Applicant
has a right to be heard, the Applicant
does not contend that he
sought to be heard and was denied that opportunity. Also no bar was
put in his way of making his representation.
Infact he submitted

in his affidavit
that he did make representations to the Commissioner informing him of
the prejudice that he will suffer, especially
financial prejudice,
before the record was passed to the Commissioner for review. That
submission shows that he did have an opportunity
to put his case
across. There appears to have been nothing secretive about the events
leading to the decision. MOKGOPO V THE ESTABLISHMENT
SECRETARY [2006]
1 BLR 309.

3. The Act allows
employees to be heard in various situations like in section 29 (i)
where the record of proceedings as well as
further representations of
Police Officer are sent to the Commissioner for consideration. In my
view the Commissioner acted within
the parameters of the Police Act.
There appears to have been no procedural unfairness in the manner in
which the decision for a
retrial was taken. The Applicant therefore
failed to show that the decision complained of was so unreasonable,
unfair and irrational
that no reasonable person could have come to
it. The

Applicant has thus
failed to make out a successful case for review.

4. The application
is therefore dismissed with costs.

DELIVERED IN OPEN
COURT AT LOBATSE ON 15TH MARCH 2013.

T. TAU JUDGE

Bogopa Manewe,
Tobedza & Co – Legal practitioner for the Applicant

Attorney
General’s Chambers – Legal practitioner for the respondents

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