Non compliance costs Special Constables
Mpho Mokwape | Monday November 6, 2023 06:00
The two Special Constables, Olebile Modisakgosi and Gagoleame Poromate, though they won their challenge at the High Court, they could not maintain their winning streak at the Court of Appeal (CoA) this Tuesday. The CoA bench of Justices Isaac Lesetedi, Goemekgabo Tebogo-Maruping and president Tebogo Tau held the appeal by the BPS on reasons that the duo had failed to follow court rules when filing their review application. The Commissioner of Police, Senior Assistant Commissioner and others filed an appeal with the higher court following a High Court judegment setting aside the Commissioner’s decision not to elevate the special constables to the position of constables. In Justice Lesetedi’s reason, he said it was a case where the two could not be permitted to abuse the court process whilst closing the door to a party whose breach of the rules carried little if any whim of deliberate intention to prejudice the other side. “The appeal must on that ground stand. An abuse of court process is more a bad conduct and a court should not tolerate it in order to send a message that it will not countenance a deliberate subversion of legal process,” he said.
He explained that it has always been well established even before the introduction of Order 61 (8) into the rules that applications for judicial review should be brought expeditiously and that where there has been an undue delay, the applicant must render a satisfactory explanation of such delay justifying bringing the review application late. Justice Lesetedi pointed out that Order 61 (8) was introduced to bring certainty on the time frame for timeous filing of applications for judicial review and on when the applicant for judicial review loses the entitlement to file such application as of right. “It, however, left a window for the court to grant leave for bringing the application out of time where good cause is shown. From the authorities, it is also clear that filing of an application for review outside the prescribed procedure in order to avoid the time limits imposed under Order 61 (8) is presumptively prejudicial to the respondent in the review application,” he said. He emphasised that on the police side, they raised their complaint without giving the other side 10 days notice to remove the cause of complaint and that prejudice was a relevant consideration in deciding whether or not to condone the non compliance by either side.
The judge said it was the two Special Constables who did not show that they suffered any prejudice as a result of the BPS' failure to give them the required 10 days’ notice to remove the cause of complaint. “They did not even seek an opportunity to remove the cause of complaint they being more focused on the substance of their claim. Even on the record, they did not suffer any prejudice resulting from the police service’s non compliance with Order 5 (3) and it was also not shown that the non compliance was anything other than innocent,” he said. According to the facts of the case, sometime in 2019, the BPS floated an internal advertisement inviting Special Constables to submit applications for posts of constable. The internal advertisement set out entry requirements for consideration of such appointments and amongst these were citizenship of Botswana, age range, good character, physical and mental fitness, educational level and body mass index. As per the court papers, the two Special Constables were part of a group of Special Constables who submitted their applications and they were subsequently called for an interview at which they were required and did take time to read Standing Order no.3.1 of the Botswana Police Standing Orders issued by the Commissioner of Police under Section 42 of the Police Act. “The Standing Order set out the requirements to be met by individual candidates for appointment to the service and one of them is that the officer must be of good character and sober habits,” read the court papers. According to the pair’s founding affidavit, they stated that they passed all the tests in the interview and were informed by a director of training in the police service, Godfrey Ponchi, that they would be appointed subject to the assessments of fingerprints from the Criminal Record Bureau. The Special Constables alleged that they were shocked to be later told that they would not be appointed as they had criminal records.
They reportedly complained that the decision not to employ them was taken irrationally and without giving them a fair hearing, that had they been afforded an opportunity to be heard before the decision was made, they would have demonstrated that.In respect of Modisakgosi, she had a record for a road traffic offence, failure to produce a driver’s licence which was not a criminal offence involving moral turpitude, which it later turned out that she had no such record. In respect of Poromate, she had no criminal record for any offence. Subsequently, the two brought an application before the High Court for a review and setting aside of the decision of the Commissioner of Police and for the issuance of an order directing that the respondents have met all the requirements for appointment as Constables and to be so appointed effective March 21, 2021. That the BPS be directed to place them in the positions they would have been on had they not been wrongfully disqualified and that the police service pay them costs of the review application on an attorney and own client scale. The appellants, including Commissioner of Police, opposed the application on several grounds.
According to the court papers, they filed a notice of points in limine raising two points, the first being that the application was incompetent for having been filed more than four months after the lapse of the four months period provided for under Order 61 (8) of the rules of the High Court and that the application was filed as an ordinary application under Rule 12 in order to avoid the time limit constraints. Further, it is said that on October 26, 2021, the BPS filed answering affidavit deposed by the Commissioner of Police. In it they reiterated their challenge to the filling of the application out of the time limit constraint and raised a number of substantive defences on the merits. “The effect of which was that the appointment of applicants to the posts of Constables was a matter peculiarly within the jurisdiction and discretion of the appointing authority, he being guided by a number of considerations such as the number of posts available, the length of service and experience of the applicants, performance during the interview, physical tests results,” read the court papers.
The BPS argued that the decision as to whom to employ and not employ or appoint was by its nature non-justifiable and therefore, not reviewable. “To the merits of the review application, the Special Constables reportedly argued that the Commissioner does not enjoy an unfettered discretion but that once he had set the parameters for qualification for appointment to an office, he was bound to comply with such parameters unless there was some other lawful ground upon which such appointment could not be made," they had argued.