The commander of Botswana Defence Force (BDF), lieutenant general, Placid Segokgo has prevailed at the Court of Appeal (CoA) against six recruit privates who were discharged from the Force in 2019 after being found in possession of cannabis.
Segokgo had approached CoA, challenging a decision of the High Court, which had overturned his decision to discharge the recruits from training.
The discharged recruits who were cited in the matter as respondents are Prosperous Gabaete, Pelontle Moshi Ntshutelang, Matthews Morapedi Maifala, Poloko Tazwida, Itumeleng Tumi Amos, and Proud Nteda.
Segokgo got reprieve last Friday after Justice Leatile Dambe, CoA president, Ian Kirby and Justice Singh Walia all concurred the High Court had erred in reviewing and setting aside the decision of the commander discharging the respondents from the BDF.
The CoA Justices upheld the appeal and quashed and set aside the High Court order which effectively reinstated the six recruits as members of the Force.
In her reasoning, Justice Dambe said the commander was correct to dismiss the trainee recruits as his decision was instructed in terms of the law to record in writing reasons why he is of the opinion that the soldiers should be discharged under Section 39(1) of the BDF Act No.3 of 2018.
The mentioned Act provides that, “a soldier may be discharged from the Regular Force at any time during his service in such Force upon any of the grounds set out in the first column of the Schedule, subject to the Special Instruction appearing in relation thereto in the second column of the said Schedule”.
The CoA Justices decided that although the group was enlisted for training on account of being medically fit as recorded in their medical certificates, it was not surprising that when they tested positive for drugs, this became one of the serious issues of concern to the commander.
“For the army, a positive drug test is a very sensitive issue considering the nature of their calling. It is a disciplined Force,” read Dambe’s judgement in part.
The CoA found that the relevant provision under which the recruits were discharged gave the commander the leeway to dismiss them from BDF after forming the opinion they are “unlikely to make efficient soldiers”.
While the recruits had argued that they were entitled to a hearing before dismissal, the CoA Justices found that in this case, there was no need for an oral hearing because the recruits were informed of the nature of the accusation and were given opportunity to state their case.
The CoA ruled that the BDF commander is not required to follow strict procedure or give a full oral hearing.
According to court papers, the group was enlisted as recruit privates by the BDF in 2018. However, on May 9, 2019 they each received a letter directing them to show cause why their training could not be terminated within 48 hours upon receipt of the letters. It is stated that this followed after the recruits were found in possession of prohibited drug and later tested positive, which indicated that they unlawfully used the prohibited substance during their training.
They were all dismissed from the Force on May 15, 2019.