MERAFHE v. BOTSWANA DEFENCE FORCE and Another 2000 (1) BLR 284 (HC)

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Citation: 2000 (1) BLR 284 (HC)
Court: High Court, Lobatse
Case No:
Judge: Gittings J
Judgment Date: March 15, 2000
Counsel:
B.B. Tafa for the applicant. M. Chamme and M. R. Lubinda for the respondents.
Flynote
State proceedings - Interdict - Interim interdict - Whether interim interdict grantable against government or its officials - State Proceedings (Civil actions by or against Government or Public Officers) Act (Cap. 10: 01), s. 9.

Armed forces - Botswana Defence Force - Officer - Course of instruction - Private scholarship outside Botswana -  C  Officer resigning after training - Whether liable to repay costs of training, allowances and salary - Condictio indebiti - Defence Force (Regular Force) (Officers) Regulations (Cap. 21:05) (Sub. Leg.), reg. 5(6)(b).
Headnote
The applicant had, before he joined the Botswana Defence Force (BDF), obtained a private scholarship from the US Government, to the United States Military Academy, Westpoint. The cost of his course of instruction was  D  therefore not paid by the Botswana Government. The applicant had, however, received a salary and an allowance from the BDF throughout his course of study. The allowance appeared to have been paid due to an administrative error, possibly caused by the BDF wrongly assuming that the applicant was at Westpoint on a BDF sponsorship. After completing his studies, and graduating in computer science, the applicant returned to Botswana and commenced work with the BDF, where he quickly discovered that he would not retain and  E  improve his computer skills. He therefore applied for a position with the Water Utilities Corporation of Botswana and was offered the post of analyst programmer. The applicant resigned from the BDF - after one year, but before the expiry of two years, from the date of the end of his course. The respondents contended that the applicant was therefore obliged to repay to the Botswana Defence Force five-sixths of one year's salary and five-sixths of the allowances paid to the applicant, or both, in terms of regulation 5(6)(b) of the of the Defence  F  Force (Regular Force) (Officers) Regulations (Cap. 21:05) (Sub. Leg.). The Botswana Defence Force wrote to the applicant's attorneys, just over a week before he was due to start work with the Water Utilities Corporation, stating that he would be in violation of the Botswana Defence Force Act if he left without having been properly released, and that this was not a civil matter but rather a military matter. The applicant and his attorneys refuted this and construed the letter as an implied threat to arrest and detain the applicant. A rule nisi was therefore  G  applied for in order to enable the applicant to take up his new employment. The rule nisi had been granted. The rule nisi interdicted the government or its officials from interfering with the personal liberty or security of the applicant and contained prayers for a declaration of the rights of the parties to the dispute. This was the return day and the applicant applied for the rule nisi to be confirmed. The respondents opposed the application and argued that, in as far as the rule nisi interdicted the government or its officials, it was erroneously granted and  H  should be discharged, because it was granted contrary to the provisions of section 9 of the State Proceedings (Civil actions by or against Government or Public Officers) Act (Cap. 10:01).

Held, confirming the rule nisi: (1) in certain cases, such as this one, an interim interdict could be granted against  A  the government or its officials in order to prevent harm and preserve the status quo. Dicta of Reynolds J. in Nasha v. The Attorney-General and Another [1999]  B.L.R. 430, and Ditshwanelo and Others v. The Attorney-General and Another [1999] 2 B.L.R. 56, applied.

(2) Regulation 5 of the Defence Force (Regular Force) (Officers) Regulations, envisaged people who were government-sponsored. Regulation 5(6) did not refer to an officer on a privately-sponsored course of instruction. As this regulation made no provision for what was to be paid in cases of "partial sponsorship" it was not  B  applicable and the applicant was not liable to pay any amount to the BDF or to the Government of Botswana.

(3) If the respondent wished to claim reimbursement in respect of the allowances, which were paid in error to the applicant, its claim would be based on the condictio indebiti and not by virtue of the Botswana Defence Force Act. Barclays Bank International Ltd. v. African Diamond Exporters (Pty.) Ltd. 1977 (1) S.A. 298 (W); Nkosi v.  C  Totalizator Agency Board (Transvaal) 1980 (1) S.A. 122 (T) cited.
Case Information
Cases referred to:

    (1)    Nasha v. The Attorney-General and Another [1999] 2 B.L.R. 430.  D
    (2)    Ditshwanelo and Others v. The Attorney-General and Another [1999] 2 B.L.R. 56.
    (3)    Barclays Bank International Ltd. v. African Diamond Exporters (Pty.) Ltd. 1977 (1) S.A. 298 (W).
    (4)    Nkosi v. Totalizator Agency Board (Transvaal) 1980 (1) S.A. 122 (T).
    (5)    Myers v. Director of Public Prosecutions [1965] A.C. 1001; [1964] 3 W.L.R. 145; [1964] 2 All E.R. 881,  E  H.L. (E.).

APPLICATION to declare the Defence Force (Regular Force) (Officers) Regulations inapplicable to the dispute and the applicant not liable to pay any amount to the Government of Botswana or the Botswana Defence Force. 

B.B. Tafa for the applicant.

M. Chamme and M. R. Lubinda for the respondents.
Judgment
Gittings J.:
On 30 April 1997, Mr. Tafa for the applicant filed a notice of motion on a certificate of urgency applying for a rule nisi to issue on the following terms:  G
    "A Rule Nisi do hereby issue calling upon the above named Respondents to show cause to this Honourable Court on Monday 19 May 1997 at 9.30 am or so soon as the counsel may be heard why the following Orders should not be made.
    1.    Interdicting and restraining the First Respondent or any officer or other agent of the Republic of Botswana from  H  arresting, detaining or otherwise in any manner whatsoever interfering with the personal liberty or security of person of the Applicant pursuant to any orders or instructions that may be issued by or on behalf of the First Respondent.

2000 (1) BLR p286
GITTINGS J
    2.    Interdicting and restraining the First Respondent through its officers or other agencies of the Republic of Botswana  A  from unlawfully harassing, interfering with the freedom of movement of the Applicant or from forcibly requiring the Applicant to perform any duties or functions in relation to the First Respondent.
    3.    Declaring that the dispute that has arisen over the resignation from employment between the Applicant and the First Respondent is a civil dispute over a monetary claim and is not a military matter.  B
    4.    Declaring that the dispute between the Applicant and the First Respondent in relation to the interpretation of the Regulations of the Botswana Defence Force (Cap. 21:05) falls to be determined by the above Honourable Court as a competent Court of jurisdiction and not a court martial or any other tribunal within the military structures of the First Respondent.  C
    5.    Declaring that the provisions of Regulation 5(6) under the Botswana Defence Force Act (Cap. 21:05) are not applicable to the Applicant and the Applicant is not liable to pay any amount to the Government of Botswana and/or the First Respondent thereunder.
    6.    Declaring that the provisions of Regulation 5 of the Botswana Defence Force Act (Cap. 21:05) are ultra vires and  D  contravene the provisions of Sections 3, 5 and 6 of the Constitution of Botswana and are accordingly invalid and of no force and effect in so far as they purport to require the payment of money as a condition precedent for the release from employment from the First Respondent.
    7.    Directing and ordering that the orders set out in paragraphs 1 and 2 above operate as an interim order with immediate effect pending the final end and determination hereof.  E
    8.    Directing and ordering the First Respondent to pay the Applicant the costs of this application.
    BY THE COURT
    REGISTRAR AND MASTER."  F
This Order was granted on the same day.
The circumstances leading to the filing of the urgent application were as follows: Mr. Oagile Merafhe, the applicant, was born on 14 July 1971. He is the son of the Honourable Minister for Foreign Affairs for Botswana to whom I will refer in this judgment as General Merafhe. It is important to state at the outset for information that in  G  1989 General Merafhe retired from his position as the Commander of the Botswana Defence Force and was appointed the Minister for Presidential Affairs and Public Administration. In 1989 his Honour the Vice President Lieutenant General Ian Khama was appointed the Commander of the Botswana Defence Force having been Deputy Commander under General Merafhe until his retirement in 1989. In this judgment I shall refer to his  H  Honour the Vice President as General Khama for ease of reference.
When he had virtually finished his schooling, the applicant in this case attempted in 1989 and 1990 to obtain a sports scholarship in America as by this time he was 18 or 19 years of age and he was rated the number one tennis player in Botswana.

2000 (1) BLR p287
GITTINGS J
The applicant said in his evidence he probably could have obtained a tennis scholarship but he was informed  A  that the scholarship for which he had applied would have funded only 80 per cent of his total costs. He then decided, on his own initiative, to apply for private sponsorship to the United States Military Academy (hereinafter referred to as Westpoint) for admission as a foreign candidate.
The applicant stated in his affidavit that his first application to Westpoint was unsuccessful but after he attended  B  the University of Botswana pre-entry science course he applied again to Westpoint and on this occasion he was successful. On 16 April 1991 a letter was sent to the applicant from the office of the superintendent of Westpoint informing him that he had been accepted.
Following the receipt of that letter the applicant commenced to make his own plans to go to the United States of  C  America as he was due to start at Westpoint on 1 July 1991. He applied for a visa to the United States of America which was granted and dated 28 May 1991. A photocopy of the applicant's passport was exhibited in the bundle of documents and was shown on pages 109 and 110 of the bundle and marked RA2. Whilst dealing with the passport, it should be noted that there was also exhibited a photocopy of his entry stamp to the United States  D  of America dated 27 June 1991.
After receiving the acceptance letter from Westpoint at some stage the applicant told his father, General Merafhe, that he had been accepted and, not surprisingly, General Merafhe informed General Khama of his son's achievement.
The applicant testified on oath that he knew General Khama well as for a number of years General Khama had  E  been the Deputy Commander of the Botswana Defence Force, when the applicant's father was the Commander. They were socially well known to each other and on 3 June 1991 General Khama asked the applicant to go and see him.
The applicant said as a result of the conversation he had with General Khama he joined the Botswana Defence Force and signed their attestation form on that day.  F
The applicant said in cross-examination that when he signed the attestation form he obviously knew that he was joining the Botswana Defence Force but he said he knew nothing of the obligations on his part and was not conversant with the Botswana Defence Force Act until 1997. He attended Westpoint from 1991 until he graduated therefrom in 1995.  G
When he returned to Botswana he commenced work with the Botswana Defence Force but once there he quickly discovered that he would not retain and improve upon his computer skills (he had graduated in computer science at Westpoint). He therefore applied for a position with the Water Utilities Corporation of Botswana and was informed by the Water Utilities Corporation, in a letter dated 18 February 1997, that he had been appointed  H  to the post of analyst programmer.
On 9 October 1996, the applicant had written to the Commander of the Botswana Defence Force tendering his resignation with effect from 1 November 1996 and explained that the reason for him resigning was that he wished to continue with his education and work for a Master's degree in programming and information systems.

2000 (1) BLR p288
GITTINGS J
On 15 January 1997 the Botswana Defence Force wrote to the applicant and approved his resignation but  A  pointed out in the letter:
    "We are however still investigating the question of sponsorship to Westpoint and if found that you have to pay back any monies your resignation will take effect only after full payment to the Botswana Defence Force."  B
It is important to note that the letter of 15 January 1997 specifically refers to "investigating the question of sponsorship to Westpoint".
Thereafter correspondence passed between the Botswana Defence Force and the applicant as to what sum of money the applicant would be required to pay to the Botswana Government.  C
The applicant was due to start work with the Water Utilities Corporation on 1 May 1997, and as he was unable to reach agreement with the Botswana Defence Force as to what he should or should not pay following his resignation, he consulted attorneys Messrs Collins, Newman and Company. They in turn entered into correspondence with the Botswana Defence Force with reference to the need to resolve the matter of what money should be paid to the Botswana Government.  D
As the applicant was due to start work with the Water Utilities Corporation, the applicant's attorneys arranged with Barclays Bank of Botswana to provide a guarantee to the Government of Botswana that, in the event that a court should decide that a sum of money was due to the Government of Botswana , Barclays would guarantee a payment of P53,625.11 which was the amount the Botswana Defence Force said was owing to them.  E
On 17 April 1997, just over a week before the applicant was due to start work with the Water Utilities Corporation, the Botswana Defence Force wrote to Messrs Collins, Newman and Company pointing out that the applicant:
    "would definitely be in violation of certain provisions of the Botswana Defence Force Act if he left the Botswana Defence  F  Force without having been properly released. This was a Military matter and not just a civil matter as you seem to suggest."
As the applicant and indeed his lawyers construed the letter of 17 April 1997 from the first respondent to them as  G  an implied threat to arrest and detain the applicant the rule nisi was applied for and granted on 30 April 1997 in order to enable the applicant to take up his new employment on 1 May 1997.
Mr. Chamme, on behalf of the Attorney-General, has argued forcibly that the rule nisi granted in favour of the applicant on 30 April 1997 was erroneously granted and should be discharged as he said it was granted contrary  H  to the provisions of section 9 of the State Proceedings (Civil actions by or against Government or Public Officers) Act (Cap. 10:01).
Mr. Tafa, on behalf of the applicant said in argument that the application he made on 30 April 1997 was all he could do to prevent the arrest of his client pending the resolution of the dispute with the Botswana Defence

2000 (1) BLR p289
GITTINGS J
Force and he said that he had only applied for an interim interdict to preserve the status quo.  A
Mr. Chamme argued that there would have been remedies available to the applicant if he had been arrested by the Botswana Defence Force and if it had been held to be unlawful he could have sued for damages. Mr. Chamme said that the applicant, on being arrested, could also have made application for bail.  B
The question of the granting of the rule nisi on 30 April 1997 being erroneous or not was not decided on the return day, which was Monday, 19 May 1997, and the matter was adjourned and re-listed on 23 June 1997 on which day I was hearing the motion roll.
It is worth mentioning at this stage that Mr. Moipolai from the Attorney-General's Chambers wrote a letter, dated 24 June 1997, which in part was a criticism of me in not hearing the case as a motion roll matter on 23 June  C  1997. Inter alia, Mr. Moipolai said I refused to hear argument for a number of reasons one of which was that I said the matter was bulky and should not have been set down on motion roll day. Events have proved my statement to be correct in so far as the case took 10 full court days to be completed. Obviously it was nonsense for a case that ultimately took 10 days to be listed as a motion roll matter.  D
In Mr. Moipolai's letter of 24 June 1997 he said in paragraph 16:
    "16.    The Respondents are greatly prejudiced by this state of affairs and are aggrieved that the circumstances effectively grant the Applicant the relief he seeks by default. Further the Respondents feel very strongly and are aggrieved by  E  the fact that the Honourable Court was on the one hand satisfied of the urgency of the matter on the 30 April, to the extent that such a robust and extraordinary remedy of interim interdict was granted, but does not now seem to be cognizant of the urgency once the rule nisi is in operation."
I note that Mr. Moipolai's views on "urgency" and the respondents' being "greatly prejudiced" are not shared by all  F  of his colleagues in the Attorney-General's Chambers as an undertaking given by Mr. Chamme to supply heads of argument within 10 days of the conclusion of the hearing of this matter on 16 April 1999 was not implemented until 10 months later, on 16 February 2000, when the heads of argument were filed in the High Court.  G
Finally, Mr. Moipolai's views of interim interdicts being "such a robust and extraordinary remedy" are not shared by other members of the Bench. See Nasha v. The Attorney-General and Another [1999] 2 B.L.R. 430 where my learned brother Reynolds J. said at p. 432 G inter alia:
    "It is not difficult to conceive of examples where even greater harm could follow if no temporary interdict could possibly be  H  granted against the government or its officials. These might involve matters such as torture, incarceration or even death."

2000 (1) BLR p290
GITTINGS J
See Ditshwanelo and Others v. The Attorney General and Another [1999] 2 B.L.R. 56.  A
The rationale in granting an interim interdict is obviously to preserve the status quo and, as in the Ditshwanelo case referred to above, Mr. Justice Reynolds granted an interim interdict to temporarily prevent the death by hanging of the applicants, which was due to take place literally a few hours ahead of the granting of the interim interdict.  B
The substantive action is of course whether or not the applicant owes money to the Botswana Defence Force, that is the Botswana Government.
I set out in full regulation 5(6)(b) of the Defence Force (Regular Force) (Officers) Regulations (Cap. 21:05) (Sub. Leg.):
    "5. (6) An officer who has attended a course of instruction outside or in Botswana at Government expense for a period  C  exceeding one year shall if he resigns within six years of the date of termination of such course repay to the Government in addition to any sums which he is liable to repay under subregulaton (3), if his resignation takes effect -
    (b)    after the expiry of one year but before the expiry of two years from the date of termination of such course, five-sixths of one year's salary calculated at the rate at which he was paid a salary during his training, five-sixths of the cost of  D  his training and five-sixths of the allowances, if any, received by him during his training;. . ."
The above provision, says the first respondent, is the reason why the applicant is obliged to repay money.  E
Mr. Tafa readily accepts that there can be and are "bonding" contracts and, although he takes issue with whether a person should be imprisoned as a result of a breach of contract, he agrees and it must be correct, that had the applicant gone to Westpoint as a result of a scholarship offered to him by the Botswana Defence Force he would have been subject to the provisions of regulation 5 (6) of the Defence Force (Regular Force) (Officers) Regulations (Cap. 21:05) (Sub. Leg.).  F
However, the applicant in his founding affidavit, dated 30 April 1997, deposed inter alia to the fact that he was not liable to repay the sum of moneys claimed by the Botswana Defence Force because he had through his own initiative procured for himself a private scholarship from the United States Government, before he joined the Botswana Defence Force on 7 June 1991, and the cost of his course of instruction was not at Government  G  expense. This is not now in dispute in this case - see the third paragraph of the letter from the Botswana Defence Force to Collins, Newman and Company dated 17 April 1997, at page 46 of the bundle, where it said:
    "Our interpretation of this provision is that because the government did not spend on Lieutenant Merafhe's tuition, therefore  H  he is not indebted to the government in that regard. We are saying because Lieutenant Merafhe is resigning before the expiration of two years after termination of his course of instruction, he is therefore liable to repay to the government five sixths of one year's salary calculated at a rate at which

2000 (1) BLR p291
GITTINGS J
    he was paid a salary during his training and five sixths the allowances that he received during the same period."  A
On 28 May 1997, Brigadier Ndelu Seretse, who at the time was the Director of Defence Personnel, swore an affidavit which contained some "facts" which it is now agreed are wholly inaccurate. I do not want to deal with the entirety of the Brigadier's affidavit but for purposes of illustration I repeat some of the paragraphs:  B
    "2.     By virtue of my rank and position above I have in my custody all the documents relating to the Applicant with respect to his tenure with the BDF.
    3.    The facts deposed to herein are within my personal knowledge save where otherwise stated or implied and are to the  C  best of my belief true and accurate. (The emphasis is mine.)
    4.    The Applicant joined the Botswana Defence Force on the 3rd June 1991 as an Officer Cadet. The Applicant joined in the normal manner and went through the same procedures as did all other Cadets of his intake. The BDF invited through the media interested persons to apply and he, as did others, applied. He was not given any special  D  treatment by getting a personal invitation from the Commander as he implies.
    5.    In that year a position was available at Westpoint Military Academy for use by a member of the Botswana Defence Force. The post was offered by the BDF to the Applicant, who accepted.  E
    6.    In August 1991, the Applicant left for Westpoint in the U.S.A. to pursue both Military and Academic Training. All necessary preparations such as application for visa, bookings and payment of settling allowance etc were done by the Directorate of Operations and Training of the Botswana Defence Force.
    8.     The Applicant was in fact promoted with members of his intake whilst at Westpoint.  F
    9.    The BDF paid to the Applicant a stipend of $350.00 per month for the duration of his stay as a student allowance. The stipend was paid from the Botswana Embassy in Washington D.C., U.S.A. Find attached a letter confirming payment marked Annexure 'B'.
    10.    The stipend above is paid to students from Botswana in the U.S.A. who are sponsored by the Botswana  G  Government and is not paid to privately sponsored students . . . .
    21.2.    The position at Westpoint was not procured by the Applicant through his initiative. The scholarship was in fact offered to the BDF or alternatively to the then Commander of the BDF Lieutenant General Mompati Merafhe in his capacity as such for use by a member of the BDF. The position could never have been procured by the Applicant  H  who was then a civilian."
I was so concerned by the statements contained in Brigadier Seretse's affidavit being totally in conflict in so many instances with what was contained in the applicant's affidavit that I called for oral evidence and

2000 (1) BLR p292
GITTINGS J
General Merafhe, Brigadier Seretse, Colonel Mokhosa and the applicant all gave oral evidence in court.  A
It is now conceded that Brigadier Seretse's affidavit is full of inaccuracies and the most generous construction that can be placed on his affidavit is that it was prepared by one of his staff and went unchecked by the Brigadier as to accuracy. It is however extremely surprising to me that a person can be prepared to ignore the seriousness of an oath and more so as Brigadier Seretse is legally qualified and once worked in the Attorney-General's Chambers. It also seems very odd to me that, at paragraph 21.2, the Brigadier does not  B  know, or purports not to know, who the Commander of the Botswana Defence Force was in 1991.
I wish to make it clear that, despite the implication made, there is no evidence that General Merafhe in any way obtained the scholarship for his son. In 1991 he had been retired from the army for two years.  C
Since it has been conceded that the applicant obtained a private scholarship to Westpoint, and the course of instruction was not at government expense, it remains in dispute as to whether five-sixths of one year's salary or five-sixths of the allowances paid to the applicant, or both, must be repaid to the Botswana Defence Force in terms of regulation 5(6)(b).  D
The applicant said in his affidavit that after signing the attestation form on 3 June 1991, he became a member of the Botswana Defence Force. Having joined the Botswana Defence Force he said his:
    "academic studies and training at the U.S. Military Academy could be terminated or interrupted at any time if I was required to serve at a particular place by the first respondent. I could be called back to Botswana by the first respondent at  E  its absolute discretion. I was a soldier in the Regular Force of the first respondent and was paid a salary and an allowance; the first respondent was duty bound to remunerate me as an employee."
On 17 November 1998, when Brigadier Seretse gave evidence, he stated that every Botswana Defence Force  F  member who goes to the United States of America for a course of instruction received $350.00 per month if he is under the International Military Education Training programme (IMET). The Brigadier conceded that the applicant applied to go to Westpoint privately and he also conceded that the Botswana Defence Force was not involved in the applicant obtaining his sponsorship.  G
In cross-examination Brigadier Seretse appears to have been confused. At one stage he stated inter alia: "the applicant had not procured his own scholarship, I said he privately applied to Westpoint. There is no way he could have got his own scholarship as a private citizen." That appears to be entirely contradictory to his previous concession that the Botswana Defence Force had nothing whatsoever to do with the application made by the  H  applicant.
Brigadier Seretse conceded that paragraph 21.2 of his affidavit was untrue and he conceded that an inference could be drawn from the contents of paragraph 21.2 that he was accusing General Merafhe of corruptly helping the applicant. The Brigadier said: "It is unfortunate that I did not say in paragraph 21.2 what I have now said."

2000 (1) BLR p293
GITTINGS J
The Brigadier then became even more confused as he agreed that the applicant obtained his own sponsorship  A  to Westpoint, his own visa and made all his own travel arrangements and he entered the United States of America on 27 June 1991.
On 18 November 1998, when again giving evidence, the Brigadier was still insisting that the sponsorship of the applicant was a Botswana Defence Force sponsorship when clearly it was not. He later conceded that:   B
    "Our belief is based on the fact that we were not aware of what the applicant had done as a civilian in applying to go to Westpoint and then later joining the Botswana Defence Force."
He then said that he thought the applicant was using a vacancy or a slot given to the Botswana Defence Force.  C  The Brigadier said, surprisingly, that it was only when the question of the repayment of money was raised that it was realised that the applicant had not gone under the auspices of the Botswana Defence Force. He later conceded that what was contained in paragraph 4 of his affidavit was completely untrue and then agreed that the contents of paragraph 21.2. of his affidavit contained untrue statements which could destroy careers and  D  reputations. He then said that if the applicant was not government-sponsored the $350.00 per month would not have been paid to him.
Brigadier Seretse then agreed that regulation 5(6) was a "bond" and he agreed with Mr. Tafa that if the applicant was not government-sponsored the "bond" referred to in regulation 5(6) would not be applicable to the applicant  E  and he added that if the applicant was not government-sponsored he would not be entitled to the allowance of $350.00 per month.
He then said that the applicant went to Westpoint under the auspices of IMET, and then attempted to say that the allowance was paid only because he was sponsored under IMET. More confusingly he then said to Mr. Tafa that IMET is not available to a civilian and he added that if the applicant got his place at Westpoint on 16 April 1991,  F  he could not have obtained it under IMET since he did not join the Botswana Defence Force until 3 June 1991. (16 April 1991 was the date of the letter from Westpoint when the applicant was told that he had been accepted as a student there.) He then went on to say: "I say he was under IMET because he was paid $350 per month and we only pay a salary and the allowance if you are under IMET."  G
The Brigadier then added that:
    "If the applicant was not under IMET, he would still have been paid a salary. . . . If he had gone to school under the authority of the BDF on study leave, he would have received a salary. He would have been entitled to his salary, he was on study leave and he will get a salary whether he is under IMET or not. Receiving a salary has got nothing to do with IMET.  H  The $350 is only paid if you are under IMET. . . . If the applicant was not under IMET he would not receive the allowance of $350 and it is possible it could have been paid in error. It is possible that the person who paid the $350 could have been under the mistaken belief that the applicant was under IMET."

2000 (1) BLR p294
GITTINGS J
Brigadier Seretse then conceded that the applicant had applied personally and agreed with Mr. Tafa that, in the  A  light of the evidence produced, he could not have been under IMET and he added that: "We now know he could have been paid by mistake."
The Brigadier later said to Mr. Tafa in cross-examination that if the applicant was not government-sponsored he could not have been paid the allowance of $350 and he said the $350 is paid only if you are government-  B  sponsored and under the IMET programme. He agreed that he should have checked the information given to him by his staff officers. He said he did not believe what the applicant had said because his staff officers had told him something different and he conceded that to rely on what he was told was an error of judgment. Brigadier Seretse then added that he did tell Mr. Moipolai that there were some mistakes in the affidavit. He said Mr. Moipolai said something like: "It can be corrected at court."  C
Brigadier Seretse agreed and accepted during cross-examination that the applicant obtained his own scholarship to Westpoint. He accepted that the applicant was not an IMET student and he said that regulation 5(6) of the Regulations did not deal with "part sponsorship". He said the regulation says "Government expense".  D
He agreed that a soldier is paid a salary during a course of instruction and he concluded his evidence by saying that there were assumptions that the applicant went on a Botswana Defence Force scholarship. He finally concluded by saying that he now accepts that the applicant obtained his own scholarship.
It would appear to any person who heard the Brigadier's evidence that he, on behalf of the Botswana Defence  E  Force, did not believe that the applicant was "caught" by the provisions of regulation 5(6). Of course, his interpretation of the contents of the Regulations has little bearing on this case except as a statement of his view as Director of Defence Personnel and as a legally qualified person.
The second witness called was Lieutenant Colonel Mokhosa who said he had been in the army for 19 years and  F  was working in personnel administration and knew the procedures when Botswana Defence Force members go on a course of instruction abroad. He said: "We inform the Botswana Embassy in that country to pay the appropriate allowance if it is applicable."
He said that the applicant was paid an allowance but the allowances are paid only to soldiers who are government-sponsored and he said he had never known of a case of a privately sponsored soldier. He said that  G  when the time came to calculate what the applicant should repay the Botswana Government, he did not have information as to who paid for his tuition and the original request for repayment was therefore amended.
In cross-examination Lieutenant Colonel Mokhosa said that he had never dealt before with a privately sponsored Botswana Defence Force member and he had never applied regulation 5(6) to a privately sponsored member.  H  He said the applicant was paid a salary because he was a member of the Botswana Defence Force. He conceded that the applicant was on active service whilst he was in America and that he could have been recalled if, for example, there had been a war in Lesotho. He said it was possible that the $350 could have been paid by mistake and he said if it had been paid by

2000 (1) BLR p295
GITTINGS J
mistake: "I would not have gone by way of regulation 5(6)." He concluded by saying a salary is paid anyway; an  A  allowance is paid if you are under IMET. The Act, i.e. the Botswana Defence Force Act, envisages people who are government-sponsored. He said in re-examination to Mr. Chamme: "Soldiers are paid salaries wherever they are and my position is that the allowance was paid by mistake."
Again, the evidence of this witness was that he did not consider regulation 5(6) was applicable to the applicant.  B
Obviously the interpretation of regulation 5(6) is for the court to determine but I consider it would be undesirable if the court did not put on record that the witnesses called in a trial, in this case for the State, appeared not to support the State's contention of what was said to be owing by the applicant.  C
What emerges clearly is that Brigadier Seretse, in his position as Director of Defence Personnel of the BDF is certain that an allowance was received by the applicant but it could only be paid if the applicant was sponsored under the IMET programme on a Botswana scholarship, which he was not.
One must assume therefore that the allowance was paid due to an administrative error, possibly caused by the BDF wrongly assuming that the applicant was at Westpoint on a BDF sponsorship. That erroneous information  D  would have been transmitted to the Botswana Embassy in Washington and the mistaken payment of the $350 monthly allowance continued to be paid to the applicant throughout the time that he was at Westpoint.
The evidence of Brigadier Seretse as to the payment of salary is corroborated by the evidence of Lieutenant  E  Colonel Mokosha who testified that soldiers are paid salaries wherever they are and that allowances are paid only if the soldier was under the IMET programme. The Act, that is the Botswana Defence Force Regulations, envisages people who are government-sponsored. Lieutenant Colonel Mokhosa's evidence concluded with the words: "my position is that the allowance was paid by mistake."  F
If the first respondent now wishes to claim reimbursement, the claim would be based on the condictio indebiti and not by virtue of the Botswana Defence Force Act. See Barclays Bank International Ltd. v. African Diamond Exporters (Pty.) Ltd. 1977 (1) S.A. 298 (W) and Nkosi v. Totalizator Agency Board (Transvaal) 1980 (1) S.A. 122 (T).
Some time was taken in this case as to whether or not what was alleged to be said to the applicant by General  G  Khama was admissible. I do not need to make a decision as to whether what was said to have been said was "hearsay" as I decide this case on other issues.
However, I should say, as stated by Lord Reid in Myers v. Director of Public Prosecutions [1965] A.C. 1001, H.L. (E.) at pp. 1019 - 20, that there is an absence of any comprehensive judicial formulation of the hearsay rule, no  H  doubt because: "It is difficult to make any general statement about the law of hearsay evidence which is entirely accurate. . .", plus the multiplicity of formulations found in textbooks upon the subject.
Phipson on Evidence (15th ed.) at para. 25-02 says:

2000 (1) BLR p296
GITTINGS J
    "Oral or written statements made by persons who are not parties and who are not called as witnesses are inadmissible to  A  prove the truth of the matters stated."
In Hoffmann and Zeffertt's The South African Law of Evidence (4th ed.), chapter 8, the rule against hearsay is contained in over 25 pages of text with dozens of referred cases.  B
As I have said, I do not decide this case on what might or might not have been said by General Khama but as a general rule, the submission made by Mr. Chamme accords with the view of the learned editors of Phipson on Evidence now in its 8th edition since 1930.
The situation in this case is that, clearly, regulation 5(6) deals with "bonding" and with what amounts an officer sent on a course of instruction at Government expense would, in certain circumstances, be required to repay.   C
In the present case, the applicant procured his own scholarship and the respondents have already conceded that they cannot make a claim in respect of five-sixths of the cost of his training as no Botswana Government money was expended on his training.  D
The respondent's own witnesses say that the applicant was entitled to a salary wherever he was, on the simple basis of an employer and employee contract. The respondent's own witnesses say that the allowance he received which totalled $16, 650 (see page 61 of the bundle) was paid by mistake.
Regulation 5(6) does not refer to an officer on a privately-sponsored course of instruction. The Brigadier, in fact  E  said that this section makes no provision as to what is to be paid in cases of "partial sponsorship".
I therefore consider that the applicant succeeds.
Although regulation 5(6) only refers to an officer "who has attended a course of instruction . . . at Government expense" and despite the fact that the regulation makes no mention of "partial sponsorship", the fact remains  F  that if the first respondent feels that the allowances totalling $16,650 were paid by mistake, as I have previously said, they are obviously not precluded from considering their position and taking whatever steps they consider necessary for reimbursement.
The respondents will pay the costs of the application made on 30 April 1997 and of the ensuing hearings of that application and they will also pay the costs of the main application.  G
I confirm the rule nisi granted on 30 April 1997 in terms of paragraphs 1, 2, 3, 4, 5 and 8.
I feel I should also quote from the "Certificate of Achievement" presented to the applicant, from the headquarters, 1st Battalion - 61st Infantry Regiment. The certificate reads:  H
    "For exceptional duty performance while serving as a Drill Cadet in 1 - 61st Infantry Regiment. Drill Cadet Merafhe's professionalism, devotion to duty, and exemplary duty performance are in keeping with the finest traditions of military service and reflects distinct credit upon himself, this unit and the United States Army."

2000 (1) BLR p297
There is no doubt that the time the applicant spent at Westpoint and the success he achieved there reflects  A  great credit on him, on the Botswana Defence Force and on Botswana during the time he was in the army.
I conclude by saying that it appears to me that the applicant has brought nothing but honour to his country and significantly he is now with all his acquired skills continuing to work in Botswana with a parastatal and it therefore cannot be said, whatever the cost incurred in the applicant going to Westpoint, that it is lost to Botswana. 

Application granted.
Rule nisi confirmed.
B.G.E.

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