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Botswana ZCC cannot sue Lekganyane – Court of Appeal

The  Zion Christian Church (ZCC) and its leader, Bishop Barnabas Edward Lekganyane has won an appeal case against some seventeen members of ZCC church members worshiping in Botswana.

In a case which has been dragging before the courts for long, the ZCC supreme leader technically won the appeal case in which his powers and that of the church with regard to disciplining Botswana ZCC members were challenged. The Court of Appeal three lordships panel consisting of Justice Monametsi Gaongalelwe, Justice Abednigo Tafa, and Justice Jacobus Brand stated categorically that the ZCC Bishop resides in South Africa and therefore cannot be sued.

“On the papers filed by either side at the High Court it is common cause Bishop Barnabas Edward Lekganyane is a resident of Moria which is situated in the republic of South Africa. He is neither domiciled nor ordinarily resident in Botswana,” the Judges highlighted in the judgement from the onset.

They continued: “the law is that the court’s jurisdiction over a natural person is generally based on whether an order made against the said person would be effective. Where such a person is neither domiciled nor resident in a particular country the courts of such country would have no jurisdiction over him.” According to the judgement, “it follows that the court a quo did not have jurisdiction over Lekganyane. Any orders purporting to interdict him would be a nullity.”

For such an interdict at High Court, the appeal judges said the 17 aggrieved church members had to establish a clear right, a well grounded apprehension of harm and the absence of a satisfactory alternative remedy. The ZCC leader and his church were appealing a case in which the lower court, High Court Judge, Justice Godfrey Nthomiwa had in his earlier ruling barred ZCC from holding disciplinary hearings against the seventeen church members who have been indicted for indiscipline after they went to court challenging the church particularly with regard to its running of affairs.

“On the strength of all the issues addressed above the appeal succeeds. The orders of the court of a quo are set aside,” the Judges stated in their ruling.  The judges upheld ZCC and Lekganyane’s grounds of appeal that “the court a quo erred and or misdirected itself in holding that the 17 church members (respondents) are entitled to an interdict restraining the church from conducting disciplinary hearing pending the outcome of the case before the court.”

In addition, the panel also agreed that “the court a quo erred and or misdirected itself by holding that the 17 members are entitled to an interdict restraining Lekganyane and the ZCC from holding disciplinary proceedings against the members pending the church listening and addressing the grievances lodged by the said members on the 8th April 2014.”

Where the case began:

The church members has prior maintained in court papers that the legal rights infringed vary from denying the members the opportunity to vote at AGMs by not holding any AGM, and Section 2 of the Church’s Constitution shows that the church is a church of members, and not just one person.  

According to the ZCC members, the failure to hold AGM’s tempers with the governance of the Church and with the opportunity for the members to input in the shaping of the church’s future. In addition they say it also limits transparency in relation to the Church’s financial standing.

“The failure to appoint a Minister has stagnated the existence of a lawfully appointed Executive Council which is only to be appointed by the Minister. The failure to appoint such a Minister has left unanswered question on the members of the Botswana church, which uncertainty has left the church in a state of crisis. As a result of this, the Church is being run from the outside as no one is clothed with ministerial powers in Botswana.”

Meanwhile a church member and a lawyer previously filed an application stating that the 2009 constitution currently in use by local ZCC – and the subject of the dispute – is just a fraud and was not duly registered at Registrar of Societies. “The applicants have instituted legal proceedings against ZCC relying on the 2009 constitution that is not operational or not in use and as such the said constitution does not govern the affairs of ZCC in Botswana.

I will further pray for the Honourable court to declare the said constitution null and void and of no force and effect,” Jost Sinvula Isaac who is a member and lawyer of ZCC declared in court papers the Weekend Post is in possession of. Isaac, who sits in the ZCC attorneys’ panel instituted a fresh application this week as a member of the church and argued that the submission of the 2009 constitution by ZCC to the Registrar of Societies was not necessary as the church had a South African church constitution that was in use since 1994.

He said: “it is my humble submission that the 1994 constitution is the lawful and operational constitution of the ZCC church in Botswana as it has never been repealed or invalidated by any lawful process.” Accordingly, he emphasized that the “2009 Botswana constitution is illegal, unlawful and a nullity in law and of no force and effect”.

In the 2009 constitution, it is stated that: “the headquarters of the church is said to be Lot 20462, Gaborone. This has never been the headquarters of the church. To the best of my knowledge, the headquarters of the church is Zion city Moria in Limpopo Province of South Africa,” the lawyer clarified.  

The Executive Council is entrusted with powers that have hitherto been the preserve of the Church Council, and the 2009 constitution as it is if adopted will hinder the smooth running of the church in Botswana, he highlighted.  In the 17 members’ case, ZCC was represented by Advocates Soraya Skhassim (SC) and Lenette Pillay from South Africa and Uyapo Ndadi of Ndadi Law Firm in Botswana sat in for the aggrieved 11 ZCC members.

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Jackdish Shah loses interest in BDP

17th May 2022
Jackdish

As the preparations for the Botswana Democratic Party (BDP) congress are about to kick off, reports on the ground suggest that the party’s Deputy Treasurer Jackdish Shah will not defend the position in August as he contemplates relocation.

According to sources, the businessman who joined the BDP Central Committee in 2015 at the 36th Congress held in Mmadinare is ready to leave the party’s politburo. It is said he long made up his mind not to defend the position last year. A prominent businessman, Shah, when he won the position to assist Satar Dada in 2015 was expected to improve the party’s financial vibrancy. By then the party was under the leadership of Ian Khama.

According to close sources, Shah long decided not to contest because he has fallen out of favour with the party leadership. It is said he took the decision after some prominent businessmen who are BDP members and part of football syndicate decided to push him out and they used their proximity to President Mokgweetsi Masisi to badmouth him hence the decision.

“The fight at the Botswana Football Association (BFA) and Botswana Football League (BFL) has left him alone in the desert and some faces there used their close access to the President to isolate him,” said a source. Media reports say, Shah does not see eye to eye with BFA President MacLean Letshwiti who is also Masisi’s buddy hence the decision.

BFL Chairman Nicholas Zackhem is said to be not in good terms with Shah, who at one point Chaired the then Botswana Premier League (BPL). “He is seriously considering quitting because of what is unfolding at the team (Township Rollers) which is slowly not making financial gains and might be relegated and he wants to sell while it is still worth the investment,” said a highly placed source.

Shah is a renowned businessman who runs internet providing company Zebra net, H &G, game farm in Kasane, cattle farm in Ghanzi region and lot of properties in Gaborone. He also has two hotels in USA, his advisors have given him thumbs up on the possible decision of relocating provided he does not sell some of the investments that are doing well.

Asked about whether he will be contesting Shah could not confirm nor deny the reports. It is said for now it is too early as a public decision will have to be taken after the national council meeting and prior to the national congress. “As a BDP Central Committee member he cannot make that announcement now,” a BDP source said.

BDP is expected to assemble for the National Council during the July holidays while the National Congress is billed for August. It is then that the party will elect a new CC members. The last time BDP held elective congress was at Kang in 2019. The party is yet to issue writ.

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Govt ignores own agreements to improve public service

17th May 2022
Govt

The government has failed to implement some commitments and agreements that it had entered into with unions to improve conditions of public servants.

Three years after the government and public made commitments aimed at improving conditions of work and services it has emerged that the government has ignored and failed to implement all commitments on conditions of service emanating from the 2019 round of negotiations.

In its position paper that saw public service salaries being increased by 5%, the government the government has also signalled its intention to renege on some of the commitments it had made.
“Government aspires to look into all outstanding issues contained in the Labour Agreement signed between the Employer and recognised Trade Union on the 27th August 2019 and that it be reviewed, revised and delinked by both Parties with a view to agree on those whose implementation that can be realistically executed during the financial years 2022/23, 2023/24 and 2024/25 respectively,” the government said.

Furthermore, in addition to reviewing, revising and de-linking of the outstanding issues contained in the Collective Labour Agreement alluded to above and taking on a progressive proposal, government desires to review revise, develop and implement human resource policies as listed below during the financial year 2022/23,2023/24,2024/25

They include selection and appointment policy, learning and development policy, transfer guidelines, conditions of service, permanent and pensionable, temporary and part time, Foreign Service, expatriate and disciplinary procedures.

In their proposal paper, the unions which had proposed an 11 percent salary increase but eventually settled for 5% percent indicated that the government has not, and without explanation, acted on some of the key commitments from the 2019/2020 and 2021/22 round of negotiations.  The essential elements of these commitments include among others the remuneration Policy for the Public Service.

The paper states that a Remuneration Policy will be developed to inform decision making on remuneration in the Public Service. It is envisaged that consultations between the government and relevant key stakeholders on the policy was to start on 1st September 2019, and the development of the policy should be concluded by 30th June 2020.

The public sector unions said the Remuneration Policy is yet to be developed. The Cooperating Unions suggested that the process should commence without delay and that it should be as participatory as it was originally conceived. Another agreement relate to Medical Aid Contribution for employees on salary Grades A and B.

The employer contribution towards medical aid for employees on salary Grades A and B will be increased from 50% to 80% for the Standard Option of the Botswana Public
“Officers’ Medical Aid Scheme effective 1st October 2019; the cooperating unions insist that, in fulfilling this commitment, there should be no discrimination between those on the high benefit and those on the medium benefit plan,” the unions proposal paper says.

Another agreement involves the standardisation of gratuities across the Public Service. “Gratuities for all employees on fixed term contracts of 12 months but not exceeding 5 years, including former Industrial class employees be standardized at 30% across the Public Service in order to remove the existing inequalities and secure long-term financial security for Public Service Employees at lower grades with immediate effect,” the paper states.

The other agreement signed by the public sector unions and the government was the development of fan-shaped Salary Structure. The paper says the Public Service will adopt a best practice fan-shaped and overlapping structure, with modification to suit the Botswana context. The Parties (government and unions) to this agreement will jointly agree on the ranges of salary grades to allow for employees’ progression without a promotion to the available position on the next management level.

“The fan-shaped structure is envisaged to be in place by 1st June 2020, to enable factoring into the budgetary cycle for the financial year 2021/22,” the unions’ proposal paper states. It says the following steps are critical, capacity building of key stakeholders (September – December 2019), commission remuneration market survey (3 months from September to November 2019), design of the fan-shaped structure (2 to 3 months from January to March2020) and consultations with all key stakeholders (March to April 2020).

The unions and government had also signed an agreement on performance management and development: A rigorous performance management and reward system based on a 5-point rating system will be adopted as an integral part of the operationalization of the new Remuneration System.

Performance Management and Development (PMD) will be used to reward workers based on performance. The review of the Performance Management System was to be undertaken in order to close the gaps identified by PEMANDU and other previous reports on PMS between 1st September 2019 and 30th June 2020 as follows; internal process to update and revise the current Performance Management System by January 2020.

A job evaluation exercise in the Public Service will also be undertaken to among others establish internal equity, and will also cover the grading of all supervisory positions within the Public Service.
Another agreement included overtime Management. The Directorate of Public Service Management (DPSM) was to facilitate the conclusion of consultations on management of overtime, including consideration of the Overtime Management Task Team’s report on the same by 30th November 2019.

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Health Expert rejects ‘death rates’ links to low population growth

17th May 2022
Health-Expert

A public health expert, Dr Edward Maganu who is also the former Permanent Secretary in the Ministry of Health has said that unlike many who are expressing shock at the population census growth decline results, he is not, because the 2022 results represents his expectations.

He rushed to dismiss the position by Statistics Botswana in which thy partly attributes the low growth rates to mortality rates for the past ten years. “I don’t think there is any undercounting. I also don’t think death rates have much to do with it since the excessive deaths from HIV/AIDS have been controlled by ARVs and our life expectancy isn’t lower than it was in the 1990s,” he said in an interview with this publication post the release of the results.

Preliminary results released by Statistics Botswana this week indicated that Botswana’s population is now estimated to be 2,346,179 – a figure that the state owned data agency expressed worry over saying it’s below their projected growth. The general decline in the population growth rate is attributed to ‘fertility’ and ‘mortality’ rates that the country registered on the past ten years since the last census in 2011.

Maganu explained that with an enlightened or educated society and the country’s total fertility rate, there was no way the country’s population census was going to match the previous growth rates.
“The results of the census make sense and is exactly what I expected. Our Total Fertility Rate ( the average number of children born to a woman) is now around 2.

This is what happens as society develops and educates its women. The enlightened women don’t want to bear many children, they want to work and earn a living, have free time, and give their few children good care. So, there is no under- counting. Census procedures are standard so that results are comparable between countries.

That is why the UN is involved through UNFPA, the UN Agency responsible for population matters,” said Maganu who is also the former adviser to the World Health Organisation. Maganu ruled out undercounting concerns, “I see a lot of Batswana are worried about the census results. Above is what I have always stated.”

Given the disadvantages that accompany low population for countries, some have suggested that perhaps a time has come for the government to consider population growth policies or incentives, suggestions Maganu deems ineffective.

“It has never worked anywhere. The number of children born to a woman are a very private decision of the woman and the husband in an enlightened society. And as I indicated, the more the women of a society get educated, the higher the tendency to have fewer children. All developed countries have a problem of zero population growth or even negative growth.

The replacement level is regarded as 2 children per woman; once the fertility level falls below that, then the population stops growing. That’s why developed countries are depending so much on immigration,” he said.

According to him, a lot of developing countries that are educating their women are heading there, including ourselves-Botswana. “Countries that have had a policy of encouraging women to have more children have failed dismally. A good example is some countries of Eastern Europe (Romania is a good example) that wanted to grow their populations by rewarding women who had more children. It didn’t work. The number of children is a very private matter,” said Maganu

For those who may be worried about the impact of problems associated with low growth rate, Maganu said: “The challenge is to develop society so that it can take care of its dependency ratio, the children and the aged. In developed countries the ratio of people over 60 years is now more than 20%, ours is still less than 10%.”

The preliminary results show that Mogoditshane with (88,098) is now the biggest village in the country with Maun coming second (85,293) and Molepolole at third position with 74,719. Population growth is associated with many economic advantages because more people leads to greater human capital, higher economic growth, economies of scale, the efficiency of higher population density and the improved demographic structure of society, among many others.

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