SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
ADMINISTRATIVE TRIBUNAL (SADCAT)
BEFORE THE APPEALS PANEL OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY ADMINISTRATIVE TRIBUNAL AT GABORONE, BOTSWANA
Appeal No 1 of 2018
TED LUKA ……………………..………………………….....Appellant No 1
BUSISIWE DLAMINI…………………………………………Appellant No 2
SHUBI MUKURASI………………………………………..…Appellant No 3
ALFRED NDABENI………………………………………….Appellant No 4
SADC…………………………………………….………...Respondent No 1
SADC Executive Secretary…………………………….Respondent No 2
CORAM: Honourable Ms Justice Kato van Niekerk (Presiding)
Honourable Ms Justice Regina Mutembei Rweyemamu
Honourable Mr Justice Pedro Sinai Nhatitima
For the Appellants:
Counsel Mr. B.D. Leburu (Monthe Marumo & Co Attorneys)
For the Respondents:
Counsel Mr. M.J. Tafa and later with him, Mr Mosetlha (Armstrongs Attorneys)
Honourable Mr. Nemaduthsingh Juddoo
Heard: 10 July 2018; 26 October 2018; 30 October 2018; 1 November 2018 and 2 November 2018.
 This is an appeal from an order dated 15 February 2018 by the Tribunal sitting at first instance, dismissing an application brought by the four appellants and seven other applicants on 7 August 2017. On appeal the appellants were represented by, Mr B D Leburu from the legal firm Monthe Marumo & Co. The respondents were represented by Mr M J Tafa, (and later with him, Mr Mosetlha), Armstrong Attorneys.
 There were two other matters to consider with in this appeal. The first relates to an interlocutory matter raised by the respondents requesting provision for security for costs. That matter will be dealt with first before going into substance of the appeal. The second matter is a cross-appeal by the respondents faulting the Tribunal a quo on a limited issue of failing to make an order for costs against the appellants. It will be dealt with after consideration of the appeal on the merits.
B. The Parties, Background Facts and Procedure
 The four appellants are among eleven former employees of the Southern African Development Community (hereinafter “SADC”), the 1st respondent, who filed an application against the respondents concerning an employment contract dispute between them with the Secretary of the SADC Administrative Tribunal. At the time the application was launched, the appellants were employees of the SADC, an institution established by the Treaty of the Southern African Development Community, 1992 (hereinafter “the Treaty”). It is common cause that at the time this appeal was heard, they were no longer employed by SADC.
 The Council of Ministers (“hereinafter “the Council”), is an institution established under Article 11(2) of the Treaty. It is tasked with various responsibilities, among them, the determination of the terms and conditions of service of the staff of SADC institutions.
 Under Article 14(1) of the Treaty, the principal executive institution of SADC is the Secretariat headed by the Executive Secretary (hereinafter, “the ES”), the 2nd respondent. In terms of the Treaty, the ES, inter alia implements Council decisions and is responsible to it for appointment of the staff of the Secretariat.
 The appellants were employed under an employment regime which had been in place since 2005, in terms of which they were each appointed on a four-year contract, renewable once, subject, inter alia, to satisfactory performance. The appellants fell into a certain category of staff called “professional staff” or “regionally recruited staff”. The contracts of their employment comprised of their letters of appointment and SADC Administration Rules and Procedures Handbook.
 In November 2011, when the appellants were still engaged on the first of their two fixed term four-year contracts under the 2005 employment regime, the Council took the following decision by approving recommendations made to it:
“ (i) the establishment, in principle, of long term fixed contract system for professional and local staff;
(ii) direct the Secretariat to develop the framework of the long term fixed contract system and submit for Council’s consideration in August 2012; and
(iii) the adoption of a contractual age-limit of 60 years for all professional and local staff.”
 The Council also approved the following recommendations as transitional arrangements:
“(i) Treaty based positions and Directors: Status quo
(ii) Regionally recruited staff positions: a once-off performance based contract extension, subject to the approval of the Framework; and
(iii) locally recruited personal, a once-off performance based contract extension, subject to the approval of the Framework.”
 Following problems encountered in implementation, the Council clarified its decision regarding the 60 year age limit at a meeting held in March 2014 by deciding as follows:
“(i) recruitment and renewal of contracts should be based on the contractual period or 60 years age limit whichever comes first;
(ii) renewal of once off contracts for employees will be limited to four years or 60 years age limit, whichever comes first; and
(iii) Staff who were serving their first or second four year contract and those serving once-off contract are allowed to complete their employment contracts to the end of their contracts (regardless of age).”
 Eventually in August 2015, the Council took the following decision and approved:
“(i) the renaming of the Long Term Employment Contract Framework to Fixed Term Employment Framework, as defined by Human Resources and Legal Experts;
(ii) employment contract framework, as follows:
(a) regionally recruited staff: 4 year term, renewable once for a 4-year term; based on satisfactory performance and age limit of 60 years; and
(b) locally recruited staff: 4 year term contract, renewable based on need for the position, satisfactory performance and to a maximum of 60 years age limit.”
 Implementation of the above Council decisions aggrieved the appellants and seven other applicants (all regionally recruited staff) who then filed a grievance with the ES on grounds that:
(a) The decision of August 2015 modified terms and conditions of service of regionally recruited staff obtained from the Council decision of November 2011 while certain other employees benefitted from it; that they were thus discriminated against. The alleged modified terms gave rise to a legitimate expectation:
(i) that upon adoption of the long term framework all staff below director would, subject to performance, work until they attained 60 years of age;
(ii) that they would get a once-off extension of four years on completion of two four-year terms, as it had been done for 93 other employees.
(b) The 2015 decision discriminated against the professional staff (a term used inter-changeably in the proceedings with regionally recruited staff).
(c)That the August 2015 Council decision on the long term employment contract framework overlooked Council’s previous decision of 2011.
 Their grievance was dismissed by the ES, who decided that:
(a) The November 2011 decision on a once-off a contract was an interim measure pending approval of the long-term contract framework;
(b) That the interim measure came to an end with the August 2015 Council decision;
(c) The November 2011 decision did not modify the terms and conditions of th appellants’ employment contracts;
(d) The August 2015 Council decision was fair and equitable and not discriminatory;
(e) The November 2011 Council decision did not establish a new term of employment for regionally recruited staff of working until 60 years of age.
 Following dismissal of their grievance, they appealed the matter to Council on grounds that (i) the ES erred by refusing to grant once-off contracts to 24 members of staff who were regionally recruited employees when the 2011 Council decision was made; and (ii) that the ES erred by failing to implement the November 2011 Council decision in a fair and non-discriminatory manner. That appeal was also dismissed by Council in February 2017.
 Aggrieved by the Council’s decision, the appellants filed a dispute in the Tribunal a quo and in the founding affidavit, the applicants now appellants, averred that: (i) the respondents failed to address the substance of their grievance, which was that the August 2015 Council decision unilaterally amended the appellants’ terms and conditions of employment; (ii) the decision of Council was erroneous due to bias in that only the ES made representations to the Council, despite being the decision maker whose decision was being challenged; (iii) the appellants’ grievances to the ES and the Council had not been tabled before the Council and did not appear in the agenda for the Council meeting; (iv) the impugned decisions breached the appellants’ conditions of employment; and (v) finally, they concluded that the Council had breached its own rules on fairness and non-discrimination.
 The Tribunal a quo finally formulated two issues to be determined, and it is noted that the appellants have not appealed against this formulation. The two issues are, as quoted from the judgment (at p44, 3rd paragraph):
“(i) The issuance of once-off contracts to the applicants; and
(ii) The fair implementation of the 2011 decision in granting long term contracts as was agreed in principle prior to the 2015 decision.”
 The Tribunal at first instance dismissed the application in its entirety. Its key findings on the issues before it are:
(a) The Council’s November 2011 decision merely adopted a contractual age limit of 60 years of age and did not imply that employees’ contracts would be renewed until they turned 60 years of age. This was clarified by the Council’s further decision in March 2014 that employment was for a limited contract period or the 60-year age limit, whichever came first.
(b) As no promise, either express or implied, had been made to the appellants that their contracts would be renewed under the long-term employment framework, once it was finalized, a legitimate expectation did not arise on the part of the appellants that their contracts would be so renewed.
(c) The once-off four-year contract renewal mentioned in the November 2011 decision was part of the transitional arrangements put in place, pending the approval of the long-term employment contract framework to be developed. Once the proposed framework had been approved, there would be no need for this transitional measure. Therefore, only those employees whose two four-year contracts terminated before the approval of the proposed framework could benefit under the transitional measure. As the Council took a final decision on the framework while the appellants were still engaged on their second four-year contracts, they could not claim any entitlement to a once-off renewal. Further, for these reasons there was no (unlawful) discrimination against the appellants when compared with the staff members who did receive once-off extensions.
(d) The November 2011 decision did not change the terms and conditions of the appellants’ employment (to their benefit) and the August 2015 decision did not unilaterally vary the terms and conditions of their employment to their detriment.
(e) There was no bias discernible in the Council’s approach towards the appellants’ appeal before it.
(f) The appellants could not complain that the Council in its August 2015 decision selectively applied the November 2011 decision as the terms and conditions applying to them were never changed and as it was Council’s prerogative to determine new terms and conditions for other staff (which were to their benefit).
C. The Interlocutory Matter on the Provision of Security for Costs
 We find it convenient to now turn to deal with the interlocutory matter mentioned earlier in this judgment.
 On 9 April 2018, the same date as the respondents filed their notice of opposition to the appeal and their notice of the cross-appeal, they filed a document bearing the heading “PROVISION FOR SECURITY FOR COSTS”, the relevant part of which reads as follows:
“BE PLEASED TO TAKE NOTICE THAT the Respondents hereby issue notice of their request and/or demand for provision of Security for Costs by the Appellants.
BE PLEASED TO TAKE NOTICE FURTEHR (sic) THAT the Respondents request and/or demand Security for Costs in the sum of BWP50 000.00 jointly and severally from the Appellants, with the one paying the other to be absolved.
BE PLEASED TO TAKE FURTHER NOTICE THAT in the event that the Appellants oppose this request for Security for Costs, such opposition is to be confirmed, in writing, within ten (10) calendar days.
BE PLEASED TO TAKE NOTICE FURTEHR (sic) THAT the Respondents, per Rule 49 of the SADCAT Rules of Procedure read together with Article VIII of the SADC Statute establishing the SADCAT, shall at the case management stage and/or roll call of the appeal (in the event that the request/demand for Security of (sic) Costs is opposed) seek leave to make submissions in motivation of the request for the provision of Security for Costs.”
 We pause to note that Article VIII of the Statute of the Southern African Community Administrative Tribunal (SADCAT) (hereinafter “the Statute”) mentioned in the notice permits the Tribunal (in plenary) to adopt its own rules of procedure, which was done on 23 June 2017. However, Rule 49(1) of the Rules of Procedure of this Tribunal (hereinafter “the Rules”) provides that all matters that are not expressly provided for in the Rules shall, by virtue of the powers conferred on it by Article VIII of the Statute, be dealt with by decision of the Tribunal sitting on the particular case. The power to order security for costs is not provided for in the Statute or the Rules.
 The appellants did not file any notice of opposition in writing as provided for in the respondents’ notice and no security was provided. Although the notice contemplated seeking leave to make submissions to the Tribunal only in the event of opposition, the respondents requested the Secretary of the Tribunal to have the matter set down for hearing by the Tribunal on appeal. The Tribunal directed the respondents to file written head of argument in advance, which was done.
 The hearing commenced on 10 July 2018. After hearing preliminary argument from both sides, the Tribunal granted the appellants leave to make submissions in opposition to the respondents’ notice.
 It should be mentioned that the respondents had provided a courtesy copy of their heads of argument to appellants’ counsel the day before the hearing. Appellants’ counsel prepared heads of argument for the next morning. The Tribunal granted the appellants leave to hand these up at the hearing. In order to use the time fruitfully, the appellants were allowed to make their submissions on both the form and the merits of the notice. The respondents were then given leave to prepare further submissions on unanticipated issues raised by the appellants. These submissions were heard on 26 October 2018. At the close of the hearing on the same date the Tribunal made an order that the matter be struck from the roll for reasons to be provided. These now follow.
 Regarding the contents and form of the notice, the respondents submitted that, as they were initially under the impression that their notice was not opposed, they were entitled to approach the Tribunal without filing a written application for security for costs supported by affidavit(s). They clearly assumed that they could lay the factual and legal basis for their request for security for costs in their heads of argument and on oral submissions by their counsel, as there is no specific provision in the Statute constituting the Tribunal or in its Rules of Procedure which deal with the issue of security for costs. Counsel stated that they were seeking guidance from the Tribunal on how to proceed; that the issue of providing security for costs was a procedural matter; and further submitted that the Tribunal was empowered under Rule 49(1) to deal with the matter.
 Counsel for the appellants, on the other hand, submitted that the notice, such as it is framed, is the equivalent of a letter of demand. He emphasized that it contained no grounds for the demand and that the respondents cannot be faulted for choosing not to oppose it in writing, but to merely address argument on the demerits of the notice and the procedure which the respondents followed to have the matter heard. What the respondents should have done, so the submission continued, was to act in accordance with the generally followed procedure, at least in Botswana and South Africa, to approach the Tribunal on application on notice, supported by affidavit(s).
 Counsel for the respondents agreed that this is what respondents should, and indeed, would have done if the notice had been opposed. However, there was no satisfactory explanation why the initial notice contained no grounds for the demand.
 During the course of argument it became clear that there is generally speaking a great measure of uniformity in the various jurisdictions represented in the SADC as an organization that the initial demand for security for costs contain the grounds for the demand and that applications to a judicial body for security for costs are formal and supported by affidavit(s), setting out the grounds and facts on which the application is based. Instead of following the “usual” and known procedure, the respondents filed a notice which is wholly inadequate and proceeded to act contrary to their own notice. They then proceeded to lay unsworn factual allegations and assumptions about the appellants’ personal and financial circumstances before the Tribunal. Had these allegations and assumptions been made by affidavit(s), the appellants would have had opportunity to dispute same. Even if it is known in advance that an application would be unopposed, legal practitioners know that courts in general, which include a body such as this Tribunal, require formal applications to be supported by affidavit(s). The fact that there is no rule of the Tribunal dealing with security for costs is not a reason to approach the Tribunal itself on a mere notice.
 In paragraph 14 of the respondents’ heads of argument filed on 21 September 2018 another relevant submission is framed as follows:
“Whilst it is not specifically provided for under the Rules, it is submitted that it is an established practice in several jurisdictions, for a litigant that takes a matter up on appeal, to satisfy the Court/Tribunal that should a Costs Order (sic) be directed against it, that (sic) such party would be in a sound position to ensuring that it is fulfilled.”
 This submission concerns the commonly found requirement that an appellant in a civil case should provide security for the costs of the appeal in advance and without the respondent being required to file a demand or an application. The appellants before us were unable to show that this “established practice” applies in labour cases on appeal and we do not accept that it does.
 For the above reasons the Tribunal was of the view that the matter was not properly before it and struck the matter from the roll. The issue of the form in which interlocutory applications should be lodged will be brought to the attention of the Tribunal (sitting in plenary) to consider the possibility of amendments to the Rules.
 As a result of the conclusion we reached, it is not necessary to deal with the arguments presented on the merits of the application. However, before we leave the aspect of the provision of security for costs, we wish to note that the issue of ordering security for costs, as well as the issue of ordering costs, (a matter to be dealt with later in this judgment) against a litigant, are of importance in view of its implications in the light of the fundamental right of access to justice, particularly when the right to approach SADCAT is part of the mechanism established for aggrieved members of staff to have disputes with their employer adjudicated. As there is no provision in either the SADCAT Statute or the Rules on the matter of security for costs (or for ordering costs) and the matter might very well arise again, these matters will also be referred to the Tribunal meeting in plenary to consider in light of the law and practice of other comparable administrative tribunals.
D. The Time Limit Applicable to the Appeal
 The appeal was filed within the time limit of 45 days from the date of the rendering of the decision a quo as required by Article XI (1) of the Statute, read with Rule 35(1) of the Rules. The appeal may therefore be entertained.
E. The Competence of this Tribunal to Hear the Appeal
 Article X (4) of the Statute provides that an appeals panel is competent to hear an appeal filed against a judgment rendered at first instance in which the appellant has asserted that the tribunal at first instance has:
(i) exceeded its jurisdiction or competence;
(ii) failed to exercise jurisdiction vested in it;
(iii) erred on a question of law;
(iv) committed an error in procedure affecting the decision of the case; or
(v) erred on a question of fact, resulting in a manifestly unreasonable decision.
 Rule 36(2)(c) of the Tribunal’s Rules of Procedure requires that the notice of the appeal shall be accompanied by a brief statement that explains the basis for relying upon any of the five grounds of appeal set out in Article X(4) of the Statute and the relief sought.
 The notice of appeal in this case is detailed and lengthy, but we consider it best to quote the relevant parts in full for purposes of information and illustration, as will appear more clearly later in the judgment:
“BE PLEASED TO TAKE NOTICE THAT the Appellants herein being dissatisfied with the decision of the Tribal sitting at first instance in the above cited matter hereby note as Appeal against the decision of the Tribunal dated 15th February 2018 does hereby appeal the decision upon the grounds set out in paragraph 3-5 and shall at hearing of appeal seek the reliefs set out at paragraph 6.
2. The part of the decision of the Court below complained of is;
2.1 The whole decision.
3. The Tribunal a quo (sic) misdirected itself in holding amongst others that:
3.1 “…. It is equally unarguable that once an employee had served the second four-term, the question of renewal did not arise ….”
3.2 “…. The Tribunal also notes that the 60 year age limit was not applied to those serving their first or second four-year terms, as they were to be allowed to complete their employment contract, unaffected by the newly introduced age limit ….”
3.3 “…. The argument that Ms Lukundula’s contact would be renewed until she turns 60 years of age limit is a strained interpretation of the letter of renewal ….”
3.4 “…. The November 2011 decision merely adopted a contractual age limit of 60 years of age, and did not imply that employees’ contracts would be renewed until they turned 60 years of age. Such a construction leads to absurdity and is contradictory of the undeniable intention by Council to consider a suitable framework as well as the merits and demerits thereof. Council had not yet adopted a long term contractual framework ….”
3.5 “…. It is impossible, given these requirements, and on the state of the evidence, for any member of staff to validly conclude that they would serve the institution until they turned 60 years of age ….”
3.6 “…. Thus the Tribunal finds that no promise, either expressly or impliedly, was made to the applicants that their contracts would be renewed under the long term employment framework, once it was finalised ….”
3.7 “…. Absent an express or implied promise that the applicants would be engaged on long term contracts when their current two-year terms ended, the claim that they legitimately expected to be so engaged is ill founded ….”
3.8 “…. Therefore, only those employees whose contracts terminated before the proposed framework was approved could benefit under this transitional measure ….”
3.9 “…. It is undeniable that expectation to obtain a once-off extension arose in the applicants’ before the framework was adopted. The expectation was however extinguished upon adoption of the framework in August 2015. The fact that the framework was adopted almost four years later, leading to the extension of contracts for 93 members of staff is inconsequential. The sense of discrimination felt by the applicants in this regard is equally baseless ….”
3.10 “…. The assertion that the 1st respondent varied the applicants’ conditions of service is equally unjustified ….”
3.11 “…. No bias is discernible in council’s approach on appeal, as it in effect confirmed that the position taken by management was correct. The 1st respondent was on terra firma in dismissing it, as the purported legitimate expectation, and discrimination were clearly misconceived ….”
3.12 “…. As the applicants’ terms and conditions of employment had not been amended by Council, the applicants cannot be heard to complain on how Council decides to deal with local staff ….”
3.13 “…. The application is dismissed ….”
4. The Tribunal a quo erred in not holding that:
4.1 The Council decision of 2011 and 2014 conferred substantive rights onto each of the Appellants herein and consequently that, the rights so conferred were;
4.1.1 Never rescinded, reviewed and/or set aside by the Respondent or any lawful authority;
4.1.2 Consequent upon such decision being made none of the Appellants were given an opportunity to be heard with respect to all or any attempt to review, rescind and/or set aside such conferred rights.
4.2 The implementation of the decision of the Council of 2011 and 2014 could not lawfully have the effect of rescinding, varying, reviewing, diluting and/or suspending the decision of Council of 2011 and 2014 in relation to this matter.
4.3 The 2nd Respondent has no right in fact and in law to review, rescind, vary and/or dilute the decision of Council of the 1st Respondent.
4.4 In implementing the decision of the Council of 2011 and 2014 in relation to some of the employees of the 1st Respondent, the Respondent afforded unequal treatment to its employees which is irrational and/or unlawful and/or unfair.
4.5 In so far as the 1st Respondent implemented the decision of the Council of 2011 and 2014 in relation to some of the employees of the 1st Respondent, the Respondent is estopped from contending that there were conditions precedent to the implementation of the decisions as aforesaid.
4.6 In all the circumstances of this case the Applicants has a legitimate expectation that they will continue as employees until they reach the age of 60 subject to the terms and condition of employment of the 1st Respondent, alternatively for additional contract renewal for a period of four years.
4.7 The decision to refuse to renew the Appellants’ contract alternatively to renew them until they reach the age of 60 years, alternatively to grant them additional contractual extension is in conflict with the decision of Council of 2011 and 2014 and indeed undermines such decisions.
4.8 The continued employment of the Appellants following the decision of 2011 and 2014 had become siniglematic.
4.9 The Council has failed to proper apply its mind to the issues and the peculiarity of this case.”
 The relief sought by the appellants is as follows:
“6.1 That the decision of the SADCAT of the 15th February is set aside.
6.2 That the 1st Respondent is bound by the decision of the Council of 2011 and 2014.
6.3 That the decision of the Council of 2011 alternatively 2014 conferred rights to employees of the 1st Respondent who were regarded as such by the 1st Respondent as at the time of the pronouncement of such decision.
6.4 That the Appellants are entitled to continue in the employment with the 1st Respondent:
(a) On a contractual basis until each of them have reached the age 60 years subject to performance appraisal and need for the position;
(b) Alternatively, that each of the Appellants are entitled to an additional four-year contract based on the circumstance of this case;
(c) Alternatively, that each of the Appellants is entitled to continued employment with the 1st Respondent until each of them have reached the age of 60 years which rights accrued to them in terms of the Council’s decision of 2011 alternatively 2014.”
 The appellants’ notice of appeal is defective in that it does not expressly assert that the Tribunal at first instance has erred in respect of any of the five grounds of appeal set out in Article X (4). Furthermore, the notice of appeal was not accompanied by the brief statement that explains the basis for relying upon any of the five grounds of appeal set out in Article X (4) of the Statute. We pause to note that the respondents did not take issue with any of these deficiencies.
 Article X (4) of the Statute requires that the Tribunal is competent to hear an appeal in which it is “asserted” by the appellant on which of the five instances in paragraphs (i) – (v) reliance is placed. In interpreting the article, the words should, as a point of departure, be literally construed. In the context used here, the word “assert” carries the meaning of stating or declaring something expressly or strongly. As stated before, the appellants do not expressly state or declare on which of the five instances they rely. However, they do state expressly in their notice of appeal on which alleged misdirections and errors emanating from the judgment a quo they rely. A perusal hereof immediately makes it clear that reliance is placed on errors on questions of law. It is the Tribunal’s considered view that, in such circumstances, it would be putting form over substance to hold that it is incompetent to hear the appeal only because the assertion is not made in so many words and that it was not the intention of the framers of the Statute to, merely for this reason, remove appeals from the ambit of the Tribunal’s competence.
 As far as non-compliance with Rule 36(1)(c) is concerned, the Tribunal is of the view that there was substantial compliance with the rule in the circumstances set out above.
 The Tribunal informed the parties in open court that it would hear the appeal, because it was able to determine from the detailed contents of the notice of appeal, (as well as the appellants’ heads of argument and the appeal record), that the appeal was based on questions of law in respect to which the appellants averred the Tribunal a quo had erred or misdirected itself.
 There were also other considerations underpinning our decision, which were not mentioned during the hearing, but which we deem fit to disclose now. Our view was that, this matter being the first matter to be heard on appeal, a more lenient approach to non-compliance with the Rules of Procedure should be followed as the Tribunal is still in the process of establishing itself in practice and as its Rules of Procedure are still new, having been adopted on 23 June 2017. We appreciate that litigants appearing before the Tribunal are also in a process of finding their feet, as it were, and we felt the need to provide some guidance where appropriate, rather than to take a hardline approach on matters of procedure. Having stated this, litigants, especially where represented by counsel, should thoroughly inform themselves of the provisions of the Statute and the Rules and heed the warning expressed in this judgment by taking note that comparable leniency should not be expected in future, except on good cause shown.
F. Grounds of Appeal which fall away
 In the Tribunal’s view, the following should already be stated at this stage, thereby removing some grounds of appeal from the ambit of further consideration on their merits:
(a) The grounds set out in paragraphs 4.2 and 4.3 are essentially the same. The issue raised in these paragraphs is, in any event, actually a non-issue, as the Tribunal a quo in effect held what the appellants say it should have held. On page 51 of the judgment, the 2nd and 3rd paragraphs read as follows:
“The Council determines the Terms and Conditions of Service of the staff of the institutions of SADC, per Article II of the Treaty. The Executive Secretary is inter alia, responsible for the appointment of the staff of the Secretariat, in accordance with procedure, and under Terms and Conditions of Service determined by the Council. It follows therefore that Decisions of Council are binding on the Executive Secretary. It is as a result impermissible for the Executive Secretary to put own interpolations on Council decisions.
Similarly, in Ovcharenko Et Al vs Secretary General of the United Nations, it was held that Decisions of the General Assembly are binding on the Secretary General and decisions taken by the Secretary General in accordance with the content of those higher norms were lawful.”
(b) Further, the issue raised in paragraph 4.5 of the notice of appeal, namely that of estoppel, was not before the Tribunal a quo and can therefore not be entertained.
(c) Paragraph 4.8 of the notice of appeal may be ignored as it was abandoned during the hearing.
G. Brief Summary of the Written Arguments of the Appellants
 In a wide ranging document the appellants made several submissions in their written heads of argument which are not covered by the grounds in their notice of appeal. These include the submissions on the appellants’ right to be heard in relation to the procedure followed when their appeal to the Council was considered and dismissed. These submissions will not be dealt with.
 Regarding the contractual liability of the SADC in relation to the appellants, they state that the November 2011 decision conferred rights upon the appellants to a once-off performance based contract extension and that the contractual relationship between the SADC and the appellants was amended by the November 2011 decision. These rights cannot, in law, be taken away unilaterally. The submission was, further, that it did not matter whether the variation was for a transitional period or not.
 They submitted that because 93 other regionally recruited employees had had their contracts renewed on the basis of the November 2011 decision, there is evidence that the terms and conditions of the appellants were amended by the November 2011 decision.
 Regarding the appellants’ alleged legitimate expectation for a once-off contract renewal the submission was that this expectation was acquired by virtue of the fact that the right to such a renewal was conferred in the November 2011 Council decision. The legitimate expectation to a once-off renewal was also created, it was submitted by the right to fair administrative action on the part of the Council.
 The ES correctly implemented the November 2011 decision by renewing the other 93 employees’ contracts once, but erred in not extending the contracts of those staff members whose contracts were in existence when the November 2011 was taken. She also wrongly advised the Council on the implementation of the November 2011 decision. It is therefore clear that the appellants’ terms and conditions of employment were breached.
H. The appellants’ Oral Submissions
 A problem which initially caused this Tribunal concern was that the appellants’ heads of argument left the impression that the appellants were arguing the matter as if this Tribunal was sitting at first instance. The oral argument confirmed this impression, although the Tribunal had expected that counsel would link his oral argument to the notice of appeal, which is detailed and specific.
 After argument had continued for some time, a member of the panel pointed this out to counsel for the appellants, as follows (see record of proceedings):
“… Counsel, there is something I have been wanting to raise for a while, but I still wanted to let you get into your argument …..what bothers me is that, and to some extent I think it is also the question with the respondents’ argument. Perhaps it is because it is a response to the appellants’ argument. There is virtually no reference to the decision of the Tribunal a quo indicating to us where did the Tribunal go wrong? Where did it actually misdirect itself? Where was its reasoning wrong? Isn’t that the way this issue should be handled on appeal? It is as if, with respect, the appellants are arguing the matter as if we are the court of first instance. I thought perhaps before it goes on too much, I want to draw your attention to it. We are not here to decide the issue again. We have to be convinced that the Tribunal a quo was wrong in law…. in its reasoning or its interpretation. As you must all know that is how one does things on appeal. Could you bear that in mind in your argument?”
 Later again counsel was alerted:
“But Counsel these are a summary of your arguments, but we want to know where in the reasoning of the Tribunal a quo or its findings can it be faulted on the issue?”
 The Tribunal’s directions were not heeded. No wonder Counsel for the respondent commenced his submission in the following manner:
“….I must concede to the difficulty to identify what exactly is wrong with the decision of the Tribunal a quo. I have pondered on this for some time to seek to identify the exact instances that I should be directing this Tribunal to as the actual instances that I must be addressing today. What that puts me in risk of doing is effectively rearguing the matter ….. What I propose to do is take a similar approach that Counsel for the appellants took …and …. address the issues that he identified as key areas…”
Counsel then went on as promised to respond to the appellant’ submissions.
I. The Duty of the Appellants in Presenting their Case on Appeal
 The United Nations Appeals Tribunal (hereinafter “UNAT”) is a tribunal which compares closely to the appeals panel of the SADCAT. This is so both in terms of its founding statute and its rules. Its jurisprudence is most useful in identifying and applying generally recognized principles of international administrative law concerning the resolution of employment disputes of staff of international organisations.
 In Ilic v. Secretary-General of the United Nations, Judgment No. 2010-UNAT-051 the UNAT referred to Article 2(1) of its Statute, which is the same as Article X(4) of the SADCAT Statute. It then proceeded to state at paragraph 29 of the judgment:
“29. The function of this Tribunal under Article 2 was considered in Tsoneva [Tsoneva v. Secretary-General of the United Nations, Judgment No. 2010-UNAT-045]. When the Appeals Tribunal hears an appeal, it does not simply re-try the case. The function of the Appeals Tribunal is to determine if the Dispute Tribunal has made errors of fact or law, exceeded its jurisdiction or competence, or failed to exercise its jurisdiction, as prescribed in Article 2(1). The appellant has the burden of satisfying the Appeals Tribunal that the judgment rendered by the Dispute Tribunal is defective. It follows that the appellant must identify the alleged defects in the Judgment and state the grounds relied upon in asserting that the Judgment is defective. It is not sufficient for an appellant to state that he or she disagree with outcome of the case or repeat the argument submitted before the Dispute Tribunal.”
 In Abbassi v. Secretary-General of the United Nations, Judgment No. 2011-UNAT-110 the UNAT held:
“22. Article 2(1)(e) of the statute provides that the Appeals Tribunal is competent to hear and pass judgment on an appeal that asserts that the UNDT has erred on a question of fact, resulting in a manifestly unreasonable decision”. It is the duty of an appellant to demonstrate that the UNDT’s judgment is defective.”
 Another judgment in similar vein is Charles v Secretary-General of the United Nations, Judgment No. 2013-UNAT-286, where the appellant kept repeating the arguments before the Tribunal at first instance.
 The UNAT decisions are of persuasive value and also accord with this Tribunal’s views on the matter being discussed.
 In the matter before us the appellants, as already demonstrated, failed to expand upon the alleged errors and misdirections in the notice of appeal by clearly attacking the Tribunal a quo’s findings or the alleged omissions and demonstrating in argument that the alleged errors of law were indeed made. They argued the matter as if they were appearing at first instance. The appellants in some instances merely repeated the same arguments, sometimes with some embellishment, as were offered to the Tribunal a quo, which ruled on them. The duty of the appellants was to show that the rulings were wrong in law. This they failed to do. In other instances the appellants made submissions on findings or alleged errors which were not appealed against. In our view the appellants did not acquit themselves of the burden placed on them by law.
 We therefore find that the appellants have failed to establish any error of law or any other error on relevant grounds on the part of the Tribunal a quo and consequently, hold that the appeal has no merit.
J. The Respondents’ Cross-Appeal
 After dismissing the appellants’ application before it, the Tribunal a quo made an order stating: “Given the circumstances of this case, each party will bear its own costs.”
 The respondents cross-appeal against this order on the grounds that an error of law was committed and/or an error in procedure was committed affecting the decision of the case. The appellants noted no opposition to the cross-appeal.
 In paragraphs 3 – 6 of their notice of the cross-appeal the respondents state as follows:
“3. The Respondents, having been successful in their opposition to the relief sought against them by the Appellants, submit that costs ought to have been awarded in their favour.
4. Through the Respondents’ written submissions, the Respondents prayed for a dismissal of the Applicants’ claim as well as an Order for costs, which costs would naturally follow the outcome of proceedings.
5. The Respondents, accordingly, cross appeal against the decision on the basis that no reasons for the non-awarding of costs against the Appellants was provided by the Honourable Tribunal of first instance.
6. The respondents further cross appeal on the basis that costs ought to have been awarded in their favour as the Applicants’ case was purely without merit, frivolous and vexatious.”
 They seek that the order a quo be set aside and replaced with an order that “the Applicants shall bear the costs of this application”.
 Although an impression arises from paragraph 4 of the notice of the cross-appeal that the issue of costs was not argued orally before the Tribunal a quo, the record of proceedings there indicates the following:
In the event that we agree with you [on the merits], what would be your attitude to costs?
Tafa M J
The costs should follow the cause, but it is entirely in the discretion of the Tribunal.”
 This is all that stated by the respondents on the matter. The respondents did not provide any basis whatsoever to the Tribunal a quo why costs should follow the event. This being the case, the respondents cannot be allowed to complain that the Tribunal a quo exercised its discretion in the manner that it did and that it did not deem it necessary to provide reasons for that decision, except to refer to “the circumstances of the case”. It is probable that the Tribunal had in mind that it was dealing with a labour matter.
 It is trite that in general costs orders are not given against employees in labour matters unless there are special circumstances, such as in the case of vexations and frivolous proceedings or other unreasonable conduct by the employee which has cost the opposite party unnecessary costs. The respondents made out no such case before the Tribunal a quo.
 The cross-appeal has no merit and is dismissed.
K. The Costs of the Appeal
 The respondents submitted in their heads of argument that the “appeal stands to be dismissed with costs as it is purely without merit and arising from a mis-apprehension of the workings of the 1st Respondent’s affairs”. This submission was not motivated during oral argument.
 Bearing in mind what we have already stated about costs in labour matters when the cross-appeal was considered, our view is that the respondents have not made a case that the appeal was frivolous or vexatious. While we do not express any view on whether we do have the power, absent an express provision in the SADCAT Statute, to make an order for costs against a staff member, we would, in any event, not have been prepared to make any such order, even if we could, because the respondents have not shown that the appeal is frivolous or vexatious.
L. Decision of this Tribunal
 For the above reasons the following order is made:
1. The appeal is dismissed.
2. The cross-appeal is dismissed.
3. Each party shall bear its own costs.
M. Remedy in Respect of Disputes Arising from Council Decision
 Before leaving the matter of this appeal, two members of the panel, namely Judge Regina Rweyemamu and Judge Pedro Nhatitima, felt it useful to point out what appears to be an ambiguity in the law.
 A careful examination of the history of the parties dispute in this matter, discernable from the grounds and submissions made by them at the different stages detailed under X above, and including parties submissions in support/opposition of the Tribunal A quo; decision; reflects a confusion on part of all the parties regarding one contentious issue, Below is some quotations from proceedings in the Tribunal a quo and in the appeal which demonstrates our point:
At page 8 of the Tribunal A quo’s judgment, when reviewing history of the grievance, it considered the applicants grounds of appeal to Counsel, it noted that; “The aggrieved employees were essentially asking the Council to review its decision of 2015”
The appeal record indicates the following:
“Justice Rweyemamu: Counsel, do you agree that the appellants if they were not satisfied with Council decision of 2015 the avenue was to seek its review by this court and not to appeal because my understanding is that you appealed the decision of Secretary General but you had a choice to seek review of Council which you did not take….”
Justice Rweyemamu: Were you faulting the Secretary General for implementing a wrong decision of the Council or for wrongly implementing the Council’s decision
Counsel Leburu: The debate at the initial stage was whether or not the Secretary General was properly implementing the decision. The Council come in and says no, that decision is correct. instance So there comes an appeal from that finding so the inquiry is whether that finding by the Council to say the Council Secretary is correct can be entrenched. We are saying we can entrench it by a way of process of a review before you. I think we know a debate between a review and appeal. The jurisprudence says now that if you want to split a review and appeal you are basically trying to split hairs because currently the debate is whether a review or appeal are the same thing. And just to give an example, currently there is a developing jurisprudence to say you can do a review by a way of summons commencing action and historically we know there has been this thing of your review comes in way of notice of motion. There is now a debate again within the legal scholars to say during the course of review proceedings in the limited context of your record lead evidence. My Lady much as we use review and appeal, I want us to understand it in the context of developing legal thinking.
Justice Rweyemamu: Please permit me to push the argument further. If this court exercises the power to review the Council’s decision this court decision on that issue would be given at one only at the appeal level.
Counsel Leburu: Because the tribunal a quo did not deal with the issue although it was before it. Let me just give this example, and it speaks to issues of law. If assuming there was locus standing point the tribunal a quo simply doesn’t deal with it. You can’t waive the law. I would be entitled to come before you and deal with a jurisdictional dispute to say the tribunal a quo had not jurisdiction although it was not raised at that level. 2. It is very clear from this record that the issue of the 2015 and framework was dealt with but there was no reasoning that was given to justify that position. That is why we are saying this tribunal is entitled to say the tribunal a quo to the extent that at page 49 you dealt with this thing you should have justified the position in terms of the law but because you didn’t justify it we are entitled to revisit it.
Justice Rweyemamu: You are saying this court has the power despite the provision of Article 10 which says “An appeal’s panels shall be competent to hear and pass final judgment in which it is asserted that the first instance judge did 123. So we are saying this appeal tribunal has jurisdiction or maybe failed to exercise the jurisdiction is; is that what you are saying?
Counsel Leburu: Exactly my point. That is why we are saying you can’t waive the law and that is very fundamental. Even if you haven’t raised the jurisdiction in the tribunal a quo, you can raise it at the appeal level, you have locus standi because it is fundamental to due process. With respect to this particular issue, it was raised in the tribunal a quo and the tribunal a quo never justified it position that it has taken which position was in line with 2015 decision.”
 The confusion on the part of all parties’, seems to stem from a lack of common agreement or understanding among them, of one critical question namely: Whether or not there is a remedy under the SADCAT Statute or any other governing law, to a member of staff of SADC or its institutions who is aggrieved by decision of the Council. Put differently, whether SADC Council’s decision is appealable by a member of staff directly to SADCAT without need to exhaust internal review mechanism or refer the grievance to Council.
 The situation is not inconceivable because under Article 11 of the SADC Treaty, and the SADC Human Resources Policy on Roles and Responsibilities, Council has the responsibility to approve and determine terms and conditions of service of the members of staff of SADC Institutions. Such a situation might arise where Council decision is perceived by the aggrieved member of staff as affecting the “contract of employment or the terms of employment of such staff …”.
 While there is no dispute that a member of staff aggrieved by the ES decisions generally or in implementing Council decision can appeal to SADCAT after exhausting other administrative remedies, it is not clear whether Council decision can be challenged by an aggrieved employee, an if so, whether by using which procedure.
 Article III (1) of the SADCAT Statute which provides that SADCAT has jurisdiction to hear and determine at first instance, any application by member of staff concerning a dispute relating to contract of employment or the terms of such staff members where:
i. The applicant as exhausted all remedies available within the secretariat or
ii. Where the parties have agreed to submit such an issue directly to SADCAT
 That provision may be a way out, if it means that, where Council makes a decision, or the ES applies COUNCIL decision, a decision which employees feel encroaches on ‘terms and conditions of employment’, both parties can agree to refer the matter as a dispute to SADCAT under article III (1)(ii) of the Statute.
We feel however that the provision as it stands is ambiguous. We would recommend to the powers that are, to deliberate the issue with view to providing a clear statutory provision, as to whether Council decision can be challenged by an aggrieved employee, and if so, the procedure to be used.
Delivered in Open Court this 10th May 2019 at Gaborone in the Republic of Botswana.
HONOURABLE MS JUSTICE KATO VAN NIEKERK
HONOURABLE MS JUSTICE REGINA MUTEMBEI RWEYEMAMU
HONOURABLE MR JUSTICE PEDRO SINAI NHATITIMA