Former President Lt. Gen Ian Khama’s absence in court to corroborate evidence brought by Attorney General Abram Keetshabe and Permanent Secretary to the President (PSP) Carter Morupisi, has led to a decision by the High Court to order for a payment of P1.7 million to the expelled former Permanent Secretary Dr. Micus Chimbombi.
Chimbombi’s contract as PS in the Ministry of Agriculture and Food Security was terminated in 2015, under dubious circumstances by both Keetshabe and Morupisi who were alleging to be acting on behalf of the government and employer at the time; Khama. Incidentally, Khama endorsed Chimbombi for the candidacy of Kgalagadi South under the Umbrella for Democratic Change (UDC) party ticket in the run up to the just ended 2019 General Elections.
Interestingly, when delivering judgment this week, Justice Busang said “the Attorney General chose not to subpoena Khama [the then President] to attend court and give evidence,” while adding that then “it follows therefore that consequence of such decision shall have a bearing on whether their evidence without Khama’s corroboration or confirmation is to be believed.” The Judge pointed out that it became apparent during Morupisi’s evidence that certain explanations could, only be provided by Khama (himself).
Therefore, Busang stressed that he “cannot be faulted for believing that Morupisi and Keetshabe knew more than what he knew would be detrimental to his interests if he did not do as asked.” As a result he ruled that the termination of Chimbombi’s contract of employment by the Defendants (Khama, Keetshabe and Morupisi) “was procured through undue influence and was consequently unlawful.”
He further ordered the “Defendants (government) to pay Chimbombi the total sum of P1 710 090.20, representing all the remuneration and other financial benefits which would have been due to him for the balance of his fixed term contract of employment.” The claimed sum of P1 710 090.20, he explained, is arrived at by adding the monthly salary of P55 164.20, made of P39 403.00 plus 40% scarce skills allowance. The total earnings for 28 months would have totaled P1 544 597.60; 65 days for leave days P165 492.61, the Judge highlighted.
According to the High Court Judge, Morupisi and Keetshabe took advantage and abused their positions, access and proximity to power to eject Chimbombi from the civil service. “I find that there was a mutual agreement for the termination of Chimbombi’s contract of employment, which was procured through undue influence. One of its terms was that Chimbombi would be paid the balance of his contract of employment or some reasonable amount, a term which the Defendants breached,” the Judge highlighted.
Chimbombi, he added, had no reason to disbelieve what Morupisi told him was the employer’s position in relation to his contract of employment. “Given the speed at which Keetshabe gratuitously moved and his general conduct on the 5th October, I have no doubt in concluding that the urgency with which Chimbombi was required to submit the (resignation) letter greatly influenced him,” Busang further pointed out.
The influence, he said was obtained at his expense as he was under so much pressure that he was incapable of exercising his mind to form an independent and objective opinion, and had no option but to succumb. He further observed that on the basis of the Defendant’s own contradictory pleadings with respect to the legal basis for Chimbombi’s exit; the inadequate evidence- the evidence contradicting itself and the pleadings- had no basis in law and fact for Chimbombi’s contract to be terminated.
“The discussion to mutually separate, initiated by Morupisi never touched on Chimbombi’s failure to perform. He was never told that separation is based on projects or their failure. On the basis of the Court of Appeal’s decision in Phuthego and others v Barclays Bank of Botswana Ltd, I do not see any reason why Chimbombi cannot be paid the balance of his contract and all the related contractual benefits,” Busang maintained.
His contract of employment, it is understood, provided for termination but it could be terminated if he was found guilty of misconduct; has failed by reason of infirmity of mind or body to carry out the functions of his office satisfactorily or the performance standard set under the contract relating to his appointment; if he failed to carry out the functions of his office satisfactorily, and had without the consent of the appointing authority engaged in other remunerative employment, occupation or business. However, court heard that Ministry of Agriculture got position one (1) in the reviews just before Chimbombi was asked to exit the Public Service by mutual separation.
Court also questions AG Keetshabe’s religious beliefs
The Judge pointed out that in his view Keetshabe’s conduct on the matter was unbefitting of both a Christian and a lawyer. “Christians are known to have a sense of empathy and compassion; I do not see that in the way Keetshabe approached the matter. He was in my view not motivated by any altruistic considerations; on the contrary he was serving other interests that are best known to himself,” he asserted.
He also observed that Lawyers are generally expected to conduct themselves in a manner which is professional; ethical; independent and beyond reproach at all times especially when dealing with matters that may affect other people’s legal rights, regardless of whatever hurt they shall be putting on. Lawyers are not expected when discharging their professional mandate to do anybody’s bidding. They, he added, should be courageous enough to tell their client what the law provides, and not what the clients want to hear.
“What Keetshabe did in this case was tantamount to a doctor prescribing medicine to a patient without diagnosis or ascertaining if the patient had any allergies,” Justice Busang stated. During working hours civil servants are expected to discharge their mandate in terms of their contracts of employment, Justice Busang stated while adding that, religious beliefs are private matters which should not affect public servants professional responsibilities and cloud how they discharge their professional mandate.
Despite being hailed and still regarded as a hero who saved many lives through his decision to crash the BF5 fighter Jet around the national stadium on the eve of the 2018 BDF day, the deceased Pilot, Major Clifford Manyuni’s actions were treated as a letdown within the army, especially by his master-Commander of the Air Arm, Major General Innocent Phatshwane.
Manyuni’s master says he was utterly disappointed with his Pilot’s failure to perform “simple basics.”
Manyuni was regarded as a hero through social media for his ‘colourful exploits’, but Phatshwane who recently retired as the Air Arm Commander, revealed to WeekendPost in an exclusive interview that while he appreciated Batswana’s outpouring of emotions and love towards his departed Pilot, he strongly felt let down by the Pilot “because there was nothing wrong with that Fighter Jet and Manyuni did not report any problem either.”
The deceased Pilot, Manyuni was known within the army to be an upwardly mobile aviator and in particular an air power proponent.
“I was hurt and very disappointed because nobody knows why he decided to crash a well-functioning aircraft,” stated Phatshwane – a veteran pilot with over 40 years of experience under the Air Arm unit.
Phatshwane went on to express shock at Manyuni’s flagrant disregard for the rules of the game, “they were in a formation if you recall well and the guiding principle in that set-up is that if you have any problem, you immediately report to the formation team leader and signal a break-away from the formation.
Manyuni disregarded all these basic rules, not even to report to anybody-team members or even the barracks,” revealed Phatshwane when engaged on the much-publicised 2018 incident that took the life of a Rakops-born Pilot of BDF Class 27 of 2003/2004.
Phatshwane quickly dismisses the suggestion that perhaps the Fighter Jet could have been faulty, “the reasons why I am saying I was disappointed is that the aircraft was also in good condition and well-functioning. It was in our best interest to know what could have caused the accident and we launched a wholesale post-accident investigation which revealed that everything in the structure was working perfectly well,” he stated.
Phatshwane continued: “we thoroughly assessed the condition of the engine of the aircraft as well as the safety measures-especially the ejection seat which is the Pilot’s best safety companion under any life-threatening situation. All were perfectly functional.”
In aircrafts, an ejection seat or ejector seat is a system designed to rescue the pilot or other crew of an aircraft in an emergency. The seat is propelled out of the aircraft by an explosive charge or rocket motor, carrying the pilot with it.”
Manyuni knew about all these safety measures and had checked their functionality prior to using the Aircraft as is routine practice, according to Phatshwane. Could Manyuni have been going through emotional distress of some sort? Phatshwane says while he may never really know about that, what he can say is that there are laid out procedures in aviation guiding instances of emotional instability which Manyuni also knew about.
“We don’t allow or condone emotionally or physically unfit Pilots to take charge of an aircraft. If a Pilot feels unfit, he reports and requests to be excused. We will subsequently shift the task to another Pilot. We do this because we know the risks of leaving an unfit pilot to fly an aircraft,” says Phatshwane.
Despite having happened a day before the BDF day, Phatshwane says the BDF day mishap did not really affect the BDF day preparations, although it emotionally distracted Manyuni’s flying formation squad a bit, having seen him break away from the formation to the stone-hearted ground. The team soldiered on and immediately reported back to base for advice and way forward, according to Phatshwane.
Sharing the details of the ordeal and his Pilots’ experiences, Phatshwane said: “they (pilots) were in distress, who wouldn’t? They were especially hurt by the deceased‘s lack of communication. I immediately called a chaplain to attend to their emotional needs.
He came and offered them counselling. But soldiers don’t cry, they immediately accepted that a warrior has been called, wiped off their tears and instantly reported back for duty. I am sure you saw them performing miracles the following day at the BDF day as arranged.”
Despite the matter having attracted wide publicity, the BDF kept the crash details a distance away from the public, a move that Phatshwane felt was not in the best interest of the army and public.
“The incident attracted overwhelming public attention. Not only that, there were some misconceptions attached to the incident and I thought it was upon the BDF to come out and address those for the benefit of the public and army’s reputation,” he said.
One disturbing narrative linked to the incident was that Manyuni heroically wrestled the ‘faulty’ aircraft away from the endangered public to die alone, a narrative which Phatshwane disputes as just people’s imaginations. “Like I said the Aircraft was functioning perfectly,” he responded.
A close family member has hinted that the traumatised Manyuni family, at the time of their son’s tragedy, strongly accused the BDF ‘of killing their son’. Phatshwane admits to this development, emphasising that “Manyuni’s mother was visibly and understandably in inconsolable pain when she uttered those words”.
Phatshwane was the one who had to travel to Rakops through the Directorate of Intelligence Services (DIS) aircraft to deliver the sad news to the family but says he found the family already in the know, through social media. At the time of his death, Manyuni was survived by both parents, two brothers, a sister, fiancée and one child. He was buried in Rakops in an emotionally-charged burial. Like his remains, the BDF fighter jets have been permanently rested.
A matter in which former President Lt Gen Ian Khama had brought before Broadhurst Police Station in Gaborone, requesting the State to charge Directorate on Corruption and Economic Crime (DCEC) lead investigator, Jako Hubona and others with perjury has been committed to Headquarters because it involves “elders.”
Broadhurst Police Station Commander, Obusitswe Lokae, told this publication this week that the case in its nature is high profile so the matter has been allocated to his Officer Commanding No.3 District who then reported to the Divisional Commander who then sort to commit it to Police Headquarters.