Court refuses to strike out case of dismissed DIS employee

Gaborone High Court Judge, Michael Leburu has dismissed an application by the Attorney General to have a review application by dismissed employee of Directorate of Intelligence and Security (DIS) declared invalid and struck off.The Attorney General and Tlamelo Ngakane (respondents in the main application) brought an interlocutory application to declare as invalid and to strike out, a review application brought by Kenamile Badubi.“In casu, the review application was filed with Court on 16 June 2023. Prior to that, the statutory notice was only served on the Attorney General (1st applicant) on the 27 February 2023 and not on Tlamelo Ngakane (2nd applicant).“The review application was served on the Attorney General on 20 June 2023 and was not served on Tlamelo Ngakane. The two applicants, prompted and prodded by such a review application, considered the application and filed their notice of opposition, accompanied by the applicants’ power of attorney, wherein it was recorded that the two applicants were opposing the respondent's review application,” the judge said.He explained in the judgement that on 21st July 2023, Ngakane's attorney penned a letter to the Badubi's attorneys and informed them that they were acting for Ngakane and further that Ngakane was constrained to produce a record of proceedings, as demanded in the notice of motion and that he should be so served. The said request was complied with by the respondent. Justice Leburu added that on the 10th of August 2023, the two applicantsfiled the present interlocutory application to declare the review application invalid and further that it be struck out.“The present interlocutory application is founded and riveted on two liminal points, namely: the alleged failure to serve the decision maker in the review application, being the 2nd applicant, with a statutory notice, in breach of section 4 of the State Proceedings Act (Civil Actions by or against Government or Public Officers) Act (CAP 10:01) and or, the alleged failure to file and serve the 2nd respondent with the review application within 4 months after the date of the impugned decision, in breach of Order 61 Rule 8 of the Rules of the High Court,” Justice Leburu said.He said on 16 June 2023, the respondent, filed with this Court a review application, seeking to review and set aside the decision of Tlamelo Ngakane, to dismiss him from employment. Before his dismissal, he was employed as Deputy Director General, Operations at the Directorate of Intelligence and Security Services (the DIS). Badubi was dismissed from his employment on 20 February 2023 by Ngakane, who was by then the Acting Director General of the DIS. He was dismissed after a disciplinary hearing was conducted.Badubi served the Attorney General (1st Applicant) with a statutory notice, to sue, in terms of section 4 of the State Proceedings Act, on 27 February 2023 while Ngakane was not served.Section 4 of the State Proceedings Act provides as follows: No action shall be instituted against the Government, or against a public officer in respect of any act done in pursuance, or execution, or intended execution of any law, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, until the expiration of one month next after notice in writing has been, in the case of the Government, delivered to or left at the office of the Attorney General, and in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims.According to Justice Leburu the Courts have held that notwithstanding the generality of the aforestated proposition, that the giving of a statutory notice is peremptory and further that failure to give same renders proceedings a nullity, in certain exceptional cases, such proceedings are not a nullity. Two instances come to the fore: the first one is where the beneficiary of such a procedural right to statutory notice, expressly waives the right to be given such a notice, he said.He pointed out that in his view, the two applicants considered the review application and took proactive steps to oppose same. Justice leburu stated that duo filed a notice of opposition to the review application. He indicated that they further filed a joint power of attorney wherein they stated their position to oppose the application. The judge stated that the applicant's attorney even penned a letter to the respondent's attorneys, informing them that the 2nd applicant was constrained to produce a record of proceedings, as required in the respondent's notice of motion. There was no mention, in the said letter, of the failure to serve the 2nd applicant with a statutory notice.“For all intents and purposes, it is safe to conclude that both the applicants were well aware of the review application. It was only in October 2023, that the 2nd applicant raised hue and cry, on the lack of service of the statutory notice, when the present interlocutory application was filed with Court,” Justice Leburu said.

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Court refuses to strike out case of dismissed DIS employee