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CoA faults Govt, BOFEPUSU in Bargaining Council flop

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.

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DPP drops Kably threat to kill case

22nd March 2023

The Botswana Democratic Party (BDP) Chief Whip and Member of Parliament for Letlhakeng/Lephephe Liakat Kably has welcomed the Directorate of Public Prosecution (DPP)’s decision not to prosecute BDP councillor, Meshack Tshenyego who allegedly threatened to kill him. However, the legislator has warned that should anything happen to his life, the state and the courts will have to account.

In an interview with this publication, Kablay said he has heard that the DPP has declined to prosecute Tshenyego in a case in which he threatened to kill him adding that the reasons he received are that there was not enough evidence to prosecute. “I am fine and at peace with the decision not to prosecute over evidential deficits but I must warn that should anything happen to my life both the DPP and the Magistrate will have to account,” Kablay said.

Connectedly, Kably said he has made peace with Tshenyego, “we have made peace and he even called me where upon we agreed to work for the party and bury the hatchet”.

The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the former Letlhakeng Sub-district council chairperson and currently councillor for Matshwabisi.

According to the charge sheet before the Court, councilor Tshenyego on July 8th, 2022 allegedly threatened MP Kably by indirectly uttering the following words to nominatedcouncilor Anderson Molebogi Mathibe, “Mosadi wa ga Liakat le ban aba gagwe ba tsile go lela, Mosadi wame le banake le bone ba tsile go lela. E tla re re mo meeting, ka re tsena meeting mmogo, ke tla mo tlolela a bo ke mmolaya.”

Loosely translated this means, Liakat’s wife and children are going to shed tears and my wife and kids will shed tears too. I will jump on him and kill him during a meeting.

Mathibe is said to have recorded the meeting and forwarded it to Kably who reported the matter to the police.

In a notice to the Magistrate Court to have the case against Tshenyego, acting director of Public Prosecutions, Wesson Manchwe  cited the nolle prosequi by the director of public prosecution in terms of section 51 A (30) of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana as reasons for dropping the charges.

A nolle prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.

“In pursuance of my powers under section 51 A (300 of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana, I do hereby stop and discontinue criminal proceedings against the accused Meshack Tshenyego in the Kweneng Administrative District, CR.No.1077/07/2022 being the case of the State vs Tshenyego,” said Manchwe. The acting director had drafted the notice dropping the charges on 13th day of March 2023.

The case then resumed before the Molepolole Magistrate Solomon Setshedi on the 14th of March 2023. The Magistrate issued an order directing “that matters be withdrawn with prejudice to the State, accused is acquitted and discharged.”

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DPP seizes prosecution duties from Police

22nd March 2023

Directorate of Public Prosecution (DPP) has finally taken over prosecution from the Botswana Police Service (BPS). The police have been prosecuting for years, but the takeover means that they will now only focus on investigations and then hand over to the DPP for prosecution.

Talks of complete takeover began as far back as 2008, but for years it seemed implementation was sluggish. However, the Minister of Justice, Machana Shamukuni, revealed that the complete takeover is expected to be completed soon.

During a presentation to the Committee of Supply by Shamukuni this week, it was revealed that the project has been implemented in 22 police stations nationwide, including Maun, Selebi-Phikwe, Palapye, Francistown, and Kasane. He further stated that the project has been allocated P3,000,000 for the 2023/2024 financial year to facilitate the opening of more satellite offices for the DPP.

Shamukuni said the Lobatse station is scheduled for a complete takeover by the end of May 2023, while the Kasane DPP satellite office has been established and became operational as of February 1, 2023.

“As reported previously, preparations are at an advanced stage to open a satellite office in Tsabong to curtail expenses, as well as frequent long-distance trips to these areas, as it is currently serviced by the Lobatse DPP office,” Shamukuni said.

Shamukuni said that the takeover strategy is to enable a seamless and gradual takeover of prosecution from the BPS without overwhelming and overstretching the thin resources at its disposal.

According to Shamukuni, the implementation of the prosecution takeover project has increased the workload of the 211 prosecutors in the DPP establishment.

Furthermore, the Justice Minister said DPP statistics show that the DPP has a total of 11,903 cases and dockets as of January 2023. He indicated that this is a significant increase in the number of cases being handled by the DPP, considering that in November 2021, the DPP had just over 8,471 files.

“Out of the total case load, 8 382 are cases pending before various courts while 3521 are dockets received from law enforcement agencies of which 1 325 are awaiting service of summons while the rest are being assessed for suitability of prosecution or otherwise” said Shamukuni.

He further stated that The DPP has consistently maintained an 80% success rate in matters completed at court.

“As at the end of January 2023, the success rate stood at 82.3% against a target of 90% whilst the average performance in respect of turnaround time for conclusion of cases at court stood at 17.5 months against a target of 18 months,” he said.

BACKLOG OF CASES – LAND TRIBUNAL

Meanwhile, Minister Shamukuni has revealed that Gaborone land Tribunal is experiencing a backlog of cases. Before parliament this week, Shamukuni revealed that a total 230 appeals were completed for the period of April 2022- December 2022 and only 76.5% of them were completed within set time frame.

The minister said that the Gaborone division has experiencing a backlog of cases due to manpower constraints and he further indicated that presiding officers from other divisions have been brought in to expedite case disposal.

He further indicated that the land tribunal is a specialized court that has been empowered to resolve appeals arising from land boards. “It has been mandated to determine appeals from the decisions of Physical planning committees of Districts Councils” said Shamukuni.

Land Tribunal relocated to the Ministry of Justice from Ministry of Land and Water Affairs in November 2022.

“An amount of P37, 842,670 is requested to cover salaries, allowance and other operational expenses for the Department of the land Tribunal,” alluded Shamukuni

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BCP, AP stalemate in 7 constituencies

21st March 2023

When the Botswana Congress Party (BCP), Alliance for Progressives, Botswana Labour Party (BLP), and conveners reconvene next week, the controversial issue of allocation of the seven constituencies will be the main topic of discussion, WeekendPost can reveal.

Not only that, but the additional four constituencies will also dominate the talks. The idea is to finally close the “constituency allocation phase,” which has proven to be the most difficult part of the ongoing negotiations.

Earlier this year, the two parties announced that the marathon talks would be concluded by February. Even at a media briefing last month, BCP Secretary General Goretetse Kekgonegile and Publicity Secretary Dr. Mpho Pheko were optimistic that the negotiations would be concluded before the end of February.

However, it is now mid-March and the talks have yet to be concluded. What could be the reasons for the delay? This is a question that both Kekgonegile and Pheko have not responded to, as they have ignored the reporters’ inquiries. However, a senior figure within the party has confided to this publication as to what is delaying the highly anticipated negotiations.

“We are reconvening next week to finalize constituency allocations, taking into account the additional four new ones plus the outstanding seven,” he explained. It later surfaced that Gaborone Central, Gaborone North, Mogoditshane, Tswapong North, Francistown West, Tati West, and Nata Gweta are all contested by both BCP and AP. This is because the other 50 constituencies were allocated by December of last year.

The three parties have failed to find common ground for the Bosele Ward by-elections. Are these constituencies not a deal breaker for the talks? “None of the constituencies is a deal breaker,” responded a very calm BCP official.

In Bosele Ward, AP has yielded to BCP, despite most of its members disapproving the decision. On the other hand, BLP has refused, and it will face off with BCP together with Botswana Democratic Party (BDP) and Umbrella for Democratic Change (UDC).

The decision by BLP to face off with BCP has been labelled as a false start for the talks by political observers.

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