Directorate of Intelligence and Security Services (DIS) agent Welheminah Maswabi code named ‘Butterfly’, has this week through her attorney, Uyapo Ndadi wrote to Director General of the DIS and Attorney General, a statutory notice of intention to sue in terms of Section 4 of the State Proceedings Act.

According to the notice ‘Butterfly’ is seeking a court order declaring that; the decision of the Director General of the Directorate of Intelligence and Security Services (DIS) contained in a letter dated the 25th November 2019 and the 9th December 2019 stopping her Fixed Overtime Allowance be reviewed, set aside and be declared a nullity because it is unlawful;

Furthermore, that the decision of the Director General still contained in the aforesaid letters, stating that Maswabi should not leave her duty station, without prior authorisation is unlawful, and ultra vires the Constitution of Botswana as it interferes with Maswabi’s right to privacy and also imposes a new term in the contract of employment devoid of her consent.

Butterfly also wants an order that the act to withhold half of her salary and other emoluments on the 14th January 2020 leaving her with a net pay of P0. 00 is unlawful, irrational and unconscionable, consequently embarrassing her financially. Again she wants the decision of the Directorate General or any officer acting under him be corrected or set aside and that her full benefits be paid out forthwith and henceforth.

According to Attorney Uyapo Ndadi, her client was not consulted about the variation of her benefits and the variation is certainly without her consent, which renders the decision unlawful. “The allowances, including overtime allowance, are fixed and not dependent on whether Maswabi has worked or not”.

Ndadi wrote that Section 35 (3) of the Public Service Act provides that an employee’s salary shall not be withheld during the period of his or her suspension. Section 16 (2) of the Employment Act provides that it is the duty of the employer to provide work to the employee and if he fails to provide work the employee shall be paid wages at the same rate as if the employee had performed a full day’s work, whether the employee is or is not released from the workplace. Section 79 (1) of the Employment Act provides that deductions that are not authorized by the employee are prohibited except those provided by the law.

Uyapo Ndadi submits that what also emerges from Maswabi’s advice slip shows that the employer has not paid the Income Tax on the half salary paid, which is also unlawful as it is contrary to the Income Tax and Employment Act. “The claimant is for no unlawful reason being financially embarrassed and her credit worthiness compromised because she would not be able to service her monthly stop orders for loans and other commitments. The claimant hereby intends to institute the proceedings seeking the above orders after the expiry of the statutory notice and will however on an urgent basis seek an interim order compelling full payments in the meanwhile”.

For the avoidance of doubt, Maswabi, if the government does not pay her full salary and benefits by Friday, 24th January 2020 (yesterday), will have no choice but to approach court for a remedy.  In a letter dated 25th November 2019, bearing DIS Director General, Brigadier Peter Magosi’s signature, the third paragraph reads, “During the period of interdiction, you shall continue to draw your full salary and all benefits attached thereto except overtime allowance. You are further advised that during the period of interdiction your conduct shall remain subject to Intelligence and Security Services Act and other policy documents governing your employment with the Directorate of Intelligence and Security.

During the period of interdiction, you shall not leave your duty station without prior authorisation. Upon receipt of this letter of interdiction, you are ordered to surrender to your immediate supervisor your identity card and any firearm and ammunition that have been issued to you”. On the 29th November 2019, Maswabi wrote back to Magosi acknowledging receipt of the interdiction letter, however she raised several issues amongst them; questioning the legal basis of stopping her fixed allowance.

According to Maswabi, in law, no such adverse decision is acceptable and Magosi’s decision is consequently unlawful and thus she is affording him the opportunity to reverse it. “My overtime allowance enjoys the same protection in law as my scarce skill allowance,” she said.  Welheminah Maswabi also dismissed Magosi’s submissions that she has in her possession a firearm and ammunition. “I advise that I am not in possession of any” she affirmed.

In a letter dated 9th December 2019, responding to Maswabi’s issues Magosi said, payment of overtime is governed by the Conditions of Service (“Conditions”) of the Directorate of Intelligence and Security (“Directorate”). In particular Section 8.2 of the Conditions state that Officers of the Directorate are required to work excess hours and they would earn a fixed overtime allowance. If at any time any employee is continuously not working the overtime, they will cease to earn the allowance.

“It follows then that since you have been relieved from the exercise of powers and carrying out duties as an Officer of the Directorate you will not be required to work overtime and thus not eligible to earn it. I cannot over emphasize the need to abide by the provisions of the Security and Intelligence Act as well as all policy documents governing your employment with the Directorate. If for any reason you have not followed the contents of your letter of interdiction I urge you to do so immediately,” wrote Magosi.

In another letter dated 4th February 2019, confirming Welheminah Maswabi’s confirmation of employment to her bank (FNBB), it states that she earns P 276 780.00 per annum and her allowances are fixed. Welheminah Maswabi’s advisory slip dated 13 December 2019, attached as part of court documents, shows that her basic salary amounts to P 23, 236. 00, Overtime Allowance P 5, 047. 00, Scarce Skill Allowance P8, 832. 80, Special Duty Allowance P 146. 33 and plain clothes allowance P195, 15 and her monthly total earnings was P39, 457. 22.

After total deductions of P17, 089. 42 her net salary was P 22, 357.85. Another salary advice dated 14th January 2020 shows that Maswabi’s basic salary after her salary was slashed by half was P 12, 618. 00 and after total deductions her net salary was P0. 00.