ATTORNEY-GENERAL v. WEIGHBRIDGE STAFF 1995 BLR 251 (CA)

Export to PDF
Export to Word
Export to print
Citation: 1995 BLR 251 (CA)
Court: Court of Appeal, Lobatse
Case No:
Judge: Schreiner JA and Lord Wylie JA
Judgment Date: January 21, 1995
Counsel:
T. Moipolai (attorney) for the applicant. T. Joina (attorney) for the respondents.
Flynote

Practice and procedure - Appeal - Application to lead further evidence on appeal in terms of r. 12(1) of Rules of Appeal Court - Exercise of court's discretion involving weighing - up of undesirability of delaying justice against undesirability of judicial decision based upon possibly incorrect facts - Other factors including negligent conduct of litigant giving rise to presentation of incorrect facts and possibility that, as result of effort of one party, other party able to practise fraud upon court - Requirement that applicant must establish that it could not even with exercise of proper diligence have obtained evidence in question when answering affidavit filed emphasised - Court not informed of steps taken to ascertain relevant facts when main application first launched but merely informed that there had been 'late receipt of new evidence' - Due diligence not observed by applicant - In any event, little likelihood that evidence, if adduced, would be practically conclusive - Application to lead further evidence denied.

Headnote

The applicant applied for leave to adduce further evidence on appeal after the judgment of the court a quo had been delivered in terms of rule 12(1) of the Rules of the Appeal Court, which provides that the court had the power to "allow or require any new evidence to be allowed". The applicant, acting on behalf of the government, did not inform the court a quo as to what steps were taken to ascertain the relevant facts when the main application was first launched but merely informed that there had been "late receipt of some new evidence" on a certain matter in dispute.
Held: (1) the exercise of the court's discretion as to whether to allow further evidence to be adduced involved a balancing operation - weighing up the undesirability of delayed justice against the undesirability of a judicial decision based upon possibly incorrect facts. Other factors include negligent conduct on the part of a litigant giving rise to the presentation of incorrect facts and the possibility that, as a result of an effort on the part of one party, the other may be able to perpetrate a fraud upon the court.
(2) It appeared on the facts that there must have been serious negligence on the part of some government official or officials. Due diligence was not observed, and if it had been, the evidence would have been placed before the court a quo in the initial affidavit on behalf of the state.
(3) It was not possible to form any view as to the likelihood that the evidence which it is sought to admit will be credible. It appeared likely that issue in question would prove to be very contentious if the present application were to be granted and no prediction could be made as to the most likely outcome of the dispute. It followed that the requirement that the evidence had to be practically conclusive was not met.
(4) In the result the applicant failed to show that the circumstances warranted reopening the matter and introducing further evidence concerning the matter in dispute. The application to lead further evidence accordingly fell to be dismissed.

Case Information

Case referred to:
 (1) Shedden and Another v. Patrick and Others (1869) 22 L.T. 631; [1861-73] All E.R. Rep. 724
 (2) Deintje v. Gratus & Gratus 1929 A.D. 1
 (3) Staatspresident en 'n Ander v. Lefuo 1990 (2) S.A. 679
 (4) Ladd v. Marshall [1954] 3 All E.R. 745 (C.A.)
Application to lead further evidence on appeal in terms of rule 12(1) of the Rules of the Appeal Court. The facts are sufficiently stated in the judgment.
T. Moipolai (attorney) for the applicant.
T. Joina (attorney) for the respondents.

Judgment

Schreiner J.A.:
The present is an application for leave to adduce further evidence. There is also an application to condone late filing of the notice of appeal, but it was conceded by the applicant that, if leave to introduce further evidence was refused, no purpose would be served by pursuing the application for condonation. The proceedings have bearing only upon the case of nine of the original respondents, namely, M. Baakile, C. Sethupa, J. Molefhe, D. Kafa, K. Mogale, B. Molatelele, O. Moroka, O. Baitsile and B. Phiri who were the weighbridge staff at Tlokweng at the time when the main application was brought. I will call these respondents "the Tlokweng staff". The other respondents who were not stationed at Tlokweng and worked at other weighbridges in Southern Botswana are not concerned with the present matter because the evidence which it is sought to introduce only concerns the availability of habitable accommodation at the Tlokweng weighbridge.
The original respondents whom I shall call "the weighbridge staff", brought an application citing the Attorney-General representing the Ministry of Works, Transport and Communications as the respondent. They sought an order declaring that the withholding of a commuted subsistence allowance ("the allowance") from the weighbridge staff was wrongful, unlawful and contrary to rules of natural justice. They also asked for a declaration that the allowance was a part of their salary and therefore a right. They claimed an order that the allowance outstanding since December 1993 should be paid to each staff member and asked for the costs of the application. In the High Court the weighbridge staff were successful.
On the 29 October 1993 a minute was drawn up and sent to all weighbridge staff at the various weighbridges throughout Botswana. It purported to confirm information communicated earlier to the effect that, because of insufficient funds, payment of the allowances would be suspended with effect from the 14 December 1993 until further notice. The minute continues:
 "All the staff should consider themselves transferred to the weighbridge stations at which they are currently stationed. The normal rotation of staff and payment of communal subsistence allowances will resume when the department's financial position improves."
The weighbridge staff, through the deponent, Mr. Baitsile, contended that the allowance was paid for inconvenience suffered by field workers who had to be in the field at various times.
It was said that they do not stay with their families; are not provided with good accommodation, and when it is raining, do not have good protection. The precise legal basis of the complainant is not clear from the affidavit which was filed, but it does appear that the failure to give the applicants a hearing before deciding to withdraw the allowance was one of the grounds upon which they seek to challenge the suspension of their allowance. The deponent on behalf of the Attorney-General was Mr. K.C. Kemokgatla who stated that he was the supervising officer of all staff manning government weighbridges and had custody of all documents relating to the dispute. He says that his responsibilities included the designation of weighbridge posts, the deployment of staff and finding the cheapest and most efficient way of executing the work. He states that in terms of the regulations for industrial employees (R.I.E.) an employee who spent less than six months at one place and who returned nightly to a temporary camp was entitled to the allowance. The employee ceased to enjoy the allowance if he moved to a temporary camp at which he would be stationed to perform a work programme that exceeded six months.
Mr. Kemokgatla stated that the weighbridge staff received an allowance because they were never at one weighbridge for more than six months. This was to discourage bribery, but apparently was not a successful measure and bribery has continued.
The conclusion of the learned judge who heard the application is set out in the following passage for his judgment:
 "From the material before me, I think I am right in holding that neither the principal roads engineer, Mr. Chikah, nor the director of roads were vested with power to stop or suspend the payment of the communal subsistence allowance of P750.00 per month per employee, as sanctioned by the director of public service management in terms of the R.I.E. and that even if they had that discretionary power they failed to direct their attention to matters which were irrelevant to what they to consider. It is apparent from the material before me, that in exercising whatever discretionary power entrusted to them, their minds were influenced by extraneous considerations like how to improve the finances of the Roads Department and how to curb or eradicate the instances of corruption in the system with the result that the decision to transfer the applicants might aptly be described as unreasonable and expression of bad faith."
The learned judge does not deal with the question raised directly in the affidavit of the employees, namely, whether the decision of the principal Roads Engineer was a nullity because he did not provide the people affected with an opportunity to put forward reasons why the allowances should not be suspended. However, we are not concerned in this application with whether the decision of the High Court was or was not correct; we are dealing only with the question of whether further evidence should be admitted dealing with the housing facilities available at the Tlokweng weighbridge.
The provision of "proper and habitable accommodation" arose when the court was considering the problem of whether the principal Roads Engineer had the power to transfer staff permanently to the various weighbridges instead of continuing with the existing practice of moving staff from one weighbridge to another in order to minimize corruption. The court considered that his could be done only if proper and habitable accommodation was available at the weighbridges and referred in this connection to clause 12.1 of the R.I.E. which stipulates that housing will not normally be provided for industrial class employees unless management required them to live on site to perform their duties satisfactorily and there is nowhere else to live within a reasonable distance from the place where they are required to work.
The court in its judgment referred to passages in the founding affidavit in which the allegation was made that "good accommodation" was not provided for employees at weighbridges and that there was no protection against the elements. Photographs of the tents at weighbridges were attached to the replying affidavit that, as restructuring initiative, he had decided that permanent structures should be built at weighbridges and staff would be posted there on a permanent basis. The comment of the learned Judge on this statement by the Director of Roads is as follows:
 "With respect, had such initiative as conceived by the director, been translated into action before the transfers ordered the applicant's present complaint could have been totally devoid of merit. But this is not the case."
I think that Mr. Moipolai was correct in submitting that the issue of proper housing was a major consideration in the view of the learned judge and that the case was argued on the basis that there was no such housing at any of the weighbridges which featured in the application.
The Attorney-General, by an application, filed after the judgment of the court a quo had been delivered and after the period for noting an appeal had expired, sought condonation of the late noting of the appeal and leave from this court to adduce evidence to the effect that the Tlokweng weighbridge there, was habitable accommodation at the time when the application was launched, thus rendering the decision permanently to transfer staff to this weighbridge and the withdrawal of the allowance in order.
The appeal will be pursued only if leave is granted to adduce further evidence so that it is appropriate to deal with this aspect of the matter at the outset. If the application to lead further evidence succeeds, the question of condonation will then have to be considered. If it is decided that further evidence may be led, it is likely that the late noting will be condoned whereas if the court decides that no further evidence should be adduced, the Attorney-General will not attempt to persist in the appeal.
The application for leave to lead further evidence is made in terms of rule 12(1) of the Rules of the Appeal Court which provides that in a civil appeal the court has power to "allow or require any new evidence to be adduced" (rule 29). The detailed provisions are to be found in rule 50-4 inclusive but do not deal with the question of what has to be established before such an application may be granted. There are authorities in England and South Africa which set out the consideration which should govern a decision regarding the admission of further evidence on appeal. The general approach was stated in the oft-quoted statement by Lord Chelmsford in Shedden and Another v. Patrick and Others (1869) 22 L.T. 631 at 634, viz:
 "It is an invariable rule in all courts, and one founded upon the clearest principles of reason and justice, that if evidence which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by granting a new trial."
This statement of the position has been adopted by the Appellate Division in South Africa (see Deintje v. Gratus & Gratus 1929 A.D. 1 at 6 and Staatspresident en 'n Ander v. Lefuo 1990 (2) S.A. 679 at 691).
For the purpose of this case I would emphasize the requirement that the applicant must establish that it could not even with the exercise of proper diligence have obtained the evidence when the answering affidavit was filed.
The general guiding principles in South African law are summarised in Civil Procedure in the Supreme Court by L.T.C. Harms as follows:
 "(a) It is essential that there should be finality to a trial and a litigant should therefore not be allowed to adduce further evidence, except in exceptional circumstances.
 (b) The applicant must show that his failure to adduce evidence was not due to his negligence; he must satisfy the Court that he could not have obtained the evidence if he had used reasonable diligence.
 (c) The evidence tendered must be weighty and material and presumably to be believed, and must be such, that if adduced, it would be practically conclusive.
 (d) If conditions have so changed that the fresh evidence will prejudice the opposite party, for example, if the witnesses of the opposite party have scattered and cannot be brought back to refute the fresh evidence, or to explain their own evidence in the light of the fresh evidence, the Court will not grant the application."
The position seems to be substantially the same in England. (See Ladd v. Marshall [1954] 3 All E.R. 745 (C.A.) and Phipson on Evidence (11th ed.) paragraph 160-3). The matter is also discussed in Hoffmann and Zeffertt The South African Law of Evidence 4th ed. pp. 479-82. For the purposes of the present case I consider that the law as stated in the above authorities can conveniently be applied in Botswana.
The affidavit of the Attorney-General is deposed to by a member of the Attorney-General's Chambers. He says that further evidence of which the director of roads was previously unaware had been received. In paragraph 7 of his affidavit he says that the new evidence will show that, in respect of the Tlokweng weighbridge, habitable accommodation "was being provided" at the time the main application was made. Mr. Baitsile in his affidavit states that Tlokweng weighbridge is the same as all the weighbridges involved in the application and denies that habitable buildings existed at the relevant time. The form of the denial will be dealt with in greater detail later.
The main application was launched in April 1994 and the facts giving rise to it happened between October and the end of 1993. It concerned the remuneration of employees of the State who presumably received a relatively low wage and for whom P750.00 per month would be of importance in balancing the family budget. The deponent Baitsile refers to the problem of re-possession of property by reason of the reduction in remuneration consequent upon the removal of the allowance. Uncertainty as to what remuneration a lowly paid worker will receive is a serious matter. Further delay in reaching finality in the dispute is therefore undesirable and, if possible, to be avoided. The exercise of the court's discretion involves a balancing operation-weighing the undesirability of delayed justice against the undesirability of a judicial decision based upon possibly incorrect facts. Other factors such as negligent conduct on the part of a litigant which gives rise to the presentation of incorrect facts; the possibility that, as a result of an effort on the part of one party, the other may be able to practice a fraud upon the court and other considerations cannot be ignored.
We have not been informed as to what steps were taken to ascertain the relevant facts when the main application was first launched. We are merely told there had been "late receipt of some new evidence". Why it was not received earlier is not clear. The notice of motion was served on the Attorney-General on 11 April 1994. The answering affidavit was filed on 13 May. On the issue of the existence of habitable accommodation the roads department had to ascertain the situation at four weighbridges in southern Botswana including the one at Tloweng. This could no doubt have been done in various ways, but, whichever way it was in fact done, it should not have taken more than a few hours. I think that the court is entitled to find that there must have been serious negligence on the part of some official or officials.
It may be correct, as submitted on behalf of the State, because government is a large organization, sometimes facts will not be transmitted to the relevant authorities timeously. The fact that the State is a large organization where the gathering of evidence may sometimes prove difficult hardly explains why the simple task of finding out whether there was a habitable accommodation at Tlokweng weighbridge at the time the employees launched their application went wrong. In my view due diligence was not observed and, if it had been, the evidence would have been placed before the court in the initial affidavit on behalf of the State.
We are not in a position to form any view as to the likelihood that the evidence which it is sought to admit will be credible. It is true that, if the State tenders evidence that at Tlokweng there were habitable houses at the relevant date, it would prima facie seem likely that this would be believed. However, in the present case Mr. Baitsile states that he is based at Tlokweng and commutes from Gaborone with all his colleagues on, it must be assumed, a daily basis. In paragraph 4.1 of the affidavit he states:
 "An appeal against the weighbridge staff based at Tlokweng alone from the factual point of view is wrong in that it implies that there is something special about the said weighbridge, when in fact it is not so. Tlokweng weighbridge is just the same like all other weighbridges that are involved in the application"
Paragraph 6.2 of the same affidavit is in the following terms:
 "While it is not true that construction was going on during the application before the High Court was being made, such a factor would not assist the applicant in any way. I find it strange for a person to take oath and say the construction was being made at the time of the application, when in fact since 1992 nothing was constructed at Tlokweng weighbridge on behalf of the Ministry of Works, Transport and Communications particularly, the roads department headed by Mr. K. Kemokgatla."
In the light of the above statements it is clear that the decision as to whether there was a habitable accommodation at the relevant date at Tlokweng weighbridge is likely to prove to be a very contentious issue if the present application is granted. At present no prediction can be made as to most likely outcome of the dispute. It follows that the requirement of subparagraph (c) of the quotation from Harms (supra) has not been met.
The next argument is that to refuse the application would be an encouragement to fraud. If this court were to allow the decision of the court a quo to stand although it may be based on alleged facts which the nine respondents must have known to be false, would be to encourage fraud. No such conclusion can be reached at this stage on this issue because no decision can be come to as to which version is factually correct.
In my view the applicant has not satisfied the court that the circumstances of the present case warrant reopening the matter and introducing further evidence concerning the existence of habitable accommodation at Tlokweng weighbridge.
Counsel for the applicant rightly conceded that, if the additional evidence was not to be introduced, no purpose would be served in persisting in the application to condone the late filing of the notice of appeal.
The applications have failed and there is no reason why costs should not follow the event. In the result the following order is made: (a) Both the application to lead further evidence and the application for condonation of late filing of the notice of appeal are dismissed.
 (b) The applicant is directed to pay the costs of both applications.
Lord WYLIE J.A. I agree.
Application refused.

<<Back