The Court of Appeal (CoA) has this week laid the blame on government and Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPUSU) for the eventual collapse of the Public Service Bargaining Council (PSBC).
Both BOFEPUSU and government withdrew from the PSBC following disagreements and countless court battles between the duo, rendering the Council eventually ineffective and worthless. In the just ended matter, government in cohorts with Botswana Public Employees Union (BOPEU) was appealing a case in which Gaborone High Court Judge Tshepo Motswagole earlier this year ruled in favour of BOFEPUSU in a matter to set the record straight on the scope of the Bargaining Council.
In essence, the judgement of Justice Motswagole nullified the unilateral decision by Government to award salary increments outside the Public Service Bargaining Council (PSBC) saying government had bargained in bad faith with the unions.
“Government breached its duty to bargain in good faith when it granted unilateral 3% increment of salaries on March 30, 2016. The scope of the PSBC- being a joint industrial council – extends to all public servants and is not only restricted to trade union members,” Motswagole had ruled then. At the time, BOPEU was not sitting in the PSBC and it is understood that motivated its teaming up with government against rival union, BOFEPUSU.
The two critical questions in the appeal were both answered this week in the judgement as delivered by a bench consisting of CoA President Justice Ian Stuart Kirby, Justice Monametsi Gaongalelwe and Justice Zibani Makhwade. The trio, through Justice Gaongalelwe who read the judgement on their behalf, reached a conclusion that “the government is not permitted to grant unilateral wage increases to public servants during the period when wage negotiations are in progress as this constitutes negotiating in bad faith.”
In regard to the principle of negotiations in labour matters having to be conducted in good faith by both the employer party and the trade union party, Judge Gaongalelwe also said that it was impermissible, and an act of bad faith for government to grant a unilateral increase to public servants during the period set aside each year for wage negotiations. This, he said, could be construed as being intended to frustrate ongoing negotiations.
However, the trio also ruled, which seems to be contradictory, that; “decisions of the Public Service Bargaining Council (PSBC) do not presently bind public service employees who are not unionised nor those who are members of trade unions not admitted to the council.”
The highest court explained that on the strength of all materials canvassed, they found that decisions of the PSBC, as presently provided for only bound parties to the Council. In practical terms they highlighted that this translated to saying that decisions of the Council governed only those public employees who are members of trade unions admitted to the Council.
Justice Gaongalelwe explained that “so while it is mandated with dealing with cross-cutting issues common to all public servants, the PSBC decision will, by article 28 bind only the members of its constituent unions.” He also said that all indications suggest that government acted in bath faith when negotiating with unions. “In casu the actions of government as a party to the PSBC fall squarely within what amounts to bad faith. Government was unwilling to enter into discussions as evidenced by ignoring the letter from BOFEPUSU and refused any counter proposal.”
“Granting the unilateral increment in the manner in which it was done seriously undermined the trade unions and dented their integrity and credibility in that it intended to show employees that union representatives are not effective in bargaining and such conduct dissuades employees from joining trade unions,” Justice Gaongalelwe pointed out in the judgement.
He added that, “In my judgement, even if such increment had been offered during the negotiating period to public officers whose trade unions were not members of the Council and to non-unionized employees only (which was not the case) that would still be amounted to bad faith since at the end of the day such adjusted salaries would be withheld from officers whose trade unions are parties to the Council, and government would not achieve its objective of making adjustments for purposes of achieving uniformity in salaries of employees holding similar and same scale positions. The granting of such an increment would have an obvious damaging effect on the status of the PSBC merger unions.”
According to Gaongalelwe, the judgement will probably mark a completion of what had been a long and tortuous journey over a rough terrain undertaken by government and prominent trade unions. “The journey commenced through launching an application for an interdict at the Industrial Court, then a review application at the High Court and ultimately the matter came to this court, he said.
“The controversy in this appeal largely revolves around the interpretation of certain provisions found in statutes and instruments dealing with labour relations in the country. These are the Public Service Act, Trade Unions and Employers’ Organisations Act, Trade Disputes Act and the constitution of Public Service Bargaining Council,” he added.
Collapse of the Bargaining Council is a step in retrogression
According to Gaongalelwe, the effect of the withdrawal of all trade union parties from the PSBC and that there was no Bargaining Council presently is a step in retrogression. “it creates an unhealthy situation which will be counterproductive in the end, with uncoordinated parallel negotiations being held with sundry unions,” the CoA judgement pointed out. Justice Gaongalelwe said trade unions have been created for the purpose of constructive collective bargaining and their forming a bargaining council was a valuable move for the benefit of members.
He stressed that: “I must say this latest development causes a concern. An operative PSBC gives government the opportunity to benefit from properly researched submissions advanced by the unions, who are well resourced for this purpose, and to receive feedback on its own proposals developed during the budgetary process, so that an acceptable and affordable compromise can hopefully be attained each year. This is a positive process for the benefit of the nation, and should not be viewed in a negative light.”
The Judge emphasised that since parties had withdrawn from the PSBC, which has been rendered dysfunctional “shows an urgent need of the government and the unions to revisit either the Act or the PSBC constitution or both, so that a fair and inclusive negotiating forum can be reconstituted”.
Parliament should amend law to remove obstacles for unions admission to PSBC
The way forward, Judge Gaongalelwe pointed out, might be for parliament to consider amending the relevant statutes, if so advised by the appropriate authorities, to set by law the annual negotiating period, and to remove some of the obstacles to admission to the council.
He said “the thresholds in respect of both recognition of a trade union by the employer and for the admission to the PSBC are too high, and make fully inclusive PSBC impossible,” before adding that “It is difficult and often unachievable for a single trade union to be admitted to the Council. This inevitably leads to the trade union desirous of becoming party to the council being compelled to enter into acting jointly agreements which have their own problems.”
He added that it can also lead to one sector of the public service being over-represented in the Council at the expense of other sectors, and that seems to have happened at one stage in this case. He justified highlighted that the withdrawal of BOPEU from the BOFEPUSU acting jointly agreement created just such a scenario.
However, to avoid being seen to be encroaching to parliament territory, Justice Gaongalelwe highlighted that it is worth noting that the remarks were only suggested possibilities, “since the courts has no legislative powers and that it was parliament which legislated where its wisdom so directs”. BOFEPUSU was represented by Advocate Alec Freund, Mboki Chilisa and Onuorah Ifezue while BOPEU was represented by Dutch Leburu. Odirile Otto, Advocate Tim Bruinders and Joseph Akoonyatse stood in for government.
In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy.
The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.
However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world. The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.
Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.
“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.
The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)
Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.
“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.
“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.
“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.
“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”
The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.
For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.
In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.
According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.
In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled. Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.
Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects. During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies. Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).
A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination. The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.
The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.
Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.
He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful. Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.
But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB. FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.
Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.
Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB. “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.
The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).
FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders. Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.
In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.
But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings. “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.
FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries). The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?
“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.
“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.
He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”
“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.
Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.