Army nurses get new lease on life
Mpho Mokwape | Monday August 15, 2022 06:00
The nurses who are fighting with their employer, Botswana Defence Force (BDF) for overtime allowances had their case earlier dismissed at the High Court on technicality that there has been a delay.
A bench of acting judge, Zein Kebonang, Justice Singh Walia and acting judge Omphemetse Motumise agreed that the case should have never been dismissed on the ground of delay when the BDF had not made a case or pleaded delay or prejudice in their papers.
Justice Kebonang explained that he agreed with the civilian nurses that the trial court decided on issues that were not before it and that its judgement could not be allowed to stand.
“It is clear from the record that at the time of the interlocutory application, trial dates had already been set. This clearly negated any negative inference that the nurses were stalling and delaying the commencement of their own case. The applicants’ case should also never have been dismissed on this ground,” he said.
He explained that it should have been obvious to the court that the BDF had not made a case for the reliefs they sought therefore, it should have not inferred to justify the nurses’ case being dismissed for the delay.
The judge also noted that although there was no universal rule as to when the time starts to run in deciding the question of delay, the date of commencement of the action is typically the point from which to measure delay.
“Any delay should be analysed holistically and not in a piece meal fashion. The delay complained of must necessarily be inexcusable or inordinate in the sense of being excessive for it is not every delay that calls for a case to be dismissed. The delay complained of must cause or have caused or be likely to cause, serious prejudice to the defendant,” he said.
Furthermore, the judge explained that a case can only be dismissed for delay when there has been actual delay in its prosecution as rules of the court stated that a case would be dismissed for want of prosecution where no steps have been taken for a period of six months or more to move it forward, where the dismissal could either come at the instance of party to the suit or the Registrar may list it before the judge for dismissal.
Kebonang emphasised that the issues of delay and prejudice could not be raised for the first time in the heads of argument, and that party could not go outside the confines of their pleadings and argue a case not pleaded, as that would be litigation by ambush if that were to be permitted.
“Nowhere in their affidavit do the BDF complain about the applicants’ delay in providing their list of witnesses and summaries of evidence. Equally, no allegation of any form of prejudice is alluded to in the supporting affidavit. The issue of prejudice is raised by the army only in their heads of arguments and is not fore-shadowed in their supporting affidavit,” he explained.
Meanwhile, the applicants are all employees of BDF and although they hold different ranks, they are all employed as army nurses.
On November 22, 2017, the nurses instituted review proceedings demanding to be paid overtime allowances. The review application was opposed by the BDF.
The application was then dismissed on October 26, 2021 for want of prosecution, which simply means that the case was dismissed because there was a delay, that there was nothing that happened with the case for a while.
The nurses then applied to the CoA appealing the judgement on grounds that they were not in default of filing any pleadings nor had they negligently left the matter dormant and contended that trial dates had already been set at the time when the additional application was filed and subsequently granted.
In response to the appeal, the BDF maintained that the court was right in dismissing the case and prayed that the court dismiss the appeal with costs.
Duma Boko represented the army officers while Oteng Thamuku represented the BDF.