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Gov’t sued for unlawful salary cessation

A senior teacher at a government school, Ellen Morula is taking government to task following a decision by the government to stop paying her monthly salary under controversial circumstances since July to date.

The decision she has cited through her attorneys, violated the Employment’s Act and Public Service Act. Morula is being represented by Uyapo Ndadi of Ndadi Law Firm and the respondent is government through Attorney General (AG) on behalf of Directorate of Public Service Management (DPSM). The teacher, whose salary has been halted for 3 months now and counting, is employed at Madiba Senior Secondary School in Mahalapye.

The senior teacher wants the government through the employer, DPSM, to pay her all arrears salaries, benefits, including pension contributions and medical aid subscriptions immediately and forthwith. According to court papers seen by Weekend Post, she also said the government should pay 10 percent per annum as interest on the outstanding salaries and benefits from the date they fell due. The court documents indicate that the dispute matter started in 2014 when Morula arranged and requested to swap working stations (self requested transfers) with other colleagues but fell ill along the way and wrote to cancel the request.

She narrated that she was then advised to notify those who were party to the requested transfer which she did, but was shocked later when she was given instruction to go to Swaneng Senior Secondary School despite having cancelled the transfer request.
However she then conceded to move to Swaneng with the advice of the Ministry of Education officials, with the condition that she would later move to Shashe River Senior Secondary School in Tonota, where, owing to her ill health, will be closer to the cardiology clinic in Francistown.

When she got to Shashe, she said in court papers, she was told by the school head that they do not need a Biology teacher and was ordered to go back to Madiba which she did. Morula continued: “surprisingly, and after a long passage of time, on the 24th May 2017, I received a letter written by the Director alleging that I have refused to go on transfer and that I should show cause why a disciplinary action should not be taken against me.”

She said that she then responded in which the essence of her response was that “I went to Swaneng again after receiving the show cause letter and I was informed that there is no accommodation for me, and when I went back after 2 weeks I was told that I can only be housed at Palapye.” According to the senior teacher, she made it clear in that letter that given her health condition; travelling 80km every day would be detrimental to her.

However, after that, the next communication she later received was in the form of a letter from the Director indicating something to the effect that: “the following changes with effect from 4th July 2017 have been made on your assignment: assignment status changed from active assignment to suspended assignment.” The letter further highlighted that “reason for the change: failure to resume duty following voluntary transfer.” The Madiba Senior School teacher pointed out that she could not interpret what the letter meant and consequently went further to seek legal advice.

She further emphasised that to her shock and dismay “following the letter, my salary, medical aid contributions, and pensions were stopped by the DPSM”. In the meantime Morula pointed out that she continued to discharge her functions as a teacher as she continued to be allocated classes at Madiba by the school management. “On the 5th September 2017, I received a letter dated 28 August 2017 inviting me to a disciplinary hearing on the 14th September 2017 at Madiba at 10am. On the said day and time, I appeared at the said place for the hearing, I found no one, I waited until about lunch time, still with no joy.”

She explained that she then approached the head teacher at Madiba, to check if there is an update on the status of the disciplinary hearing and “the head teacher was also in the dark”. Morula said in the said papers before court: “I am advised by my attorney, which advise I accept as true, that the employer in terms of Public Service Act can only stop payment as a punishment following a disciplinary hearing as per section 40 of the Public Service Act.”

She further stressed that no disciplinary hearing has ever taken place against her, prior to the termination of payment of her salary and benefit. “I am further advised the DPSM has a legal duty to pay me monthly salaries and failure to do so is in violation of the employment Act. My attorneys will deal with this point in argument,” she submitted. As a result, her attorney Ndadi also stated in court papers that the client is gravely suffering financial prejudice and embarrassment, and any further delay will invariably worsen her situation. Morula will know her fate as soon as the case takes course in court, as expected, soon.

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13 AUGUST 2022 Publication

12th August 2022

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DIS blasted for cruelty – UN report

26th July 2022
DIS BOSS: Magosi

Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.

Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.

She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”

Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.

On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.

“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.

One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.

The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”

The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.

Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.

Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.

The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.

The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.

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Stan Chart halts civil servants property loan facility

26th July 2022

Standard Chartered Bank Botswana (SCBB) has informed the government that it will not be accepting new loan applications for the Government Employees Motor Vehicle and Residential Property Advance Scheme (GEMVAS and LAMVAS) facility.

This emerges in a correspondence between Acting Permanent Secretary in the Ministry of Finance Boniface Mphetlhe and some government departments. In a letter he wrote recently to government departments informing them of the decision, Mphetlhe indicated that the Ministry received a request from the Bank to consider reviewing GEMVAS and LAMVAS agreement.

He said: “In summary SCBB requested the following; Government should consider reviewing GEMVAS and LAMVAS interest rate from prime plus 0.5% to prime plus 2%.” The Bank indicated that the review should be both for existing GEMVAS and LAMVAS clients and potential customers going forward.

Mphetlhe said the Bank informed the Ministry that the current GEMVAS and LAMVAS interest rate structure results into them making losses, “as the cost of loa disbursements is higher that their end collections.”

He said it also requested that the loan tenure for the residential property loans to be increased from 20 to 25 years and the loan tenure for new motor vehicles loans to be increased from 60 months to 72 months.

Mphetlhe indicated that the Bank’s request has been duly forwarded to the Directorate of Public Service Management for consideration, since GEMVAS and LAMVAS is a Condition of Service Scheme. He saidthe Bank did also inform the Ministry that if the matter is not resolved by the 6th June, 2022, they would cease receipt of new GEMVAS and LAMVAS loan applications.

“A follow up virtual meeting was held to discuss their resolution and SCB did confirm that they will not be accepting any new loans from GEMVAS and LAMVAS. The decision includes top-up advances,” said Mphetlhe. He advised civil servants to consider applying for loans from other banks.

In a letter addressed to the Ministry, SCBB Chief Executive Officer Mpho Masupe informed theministry that, “Reference is made to your letter dated 18th March 2022 wherein the Ministry had indicated that feedback to our proposal on the above subject is being sought.”

In thesame letter dated 10 May 2022, Masupe stated that the Bank was requesting for an update on the Ministry’s engagements with the relevant stakeholder (Directorate of Public Service Management) and provide an indicative timeline for conclusion.

He said the “SCBB informs the Ministry of its intention to cease issuance of new loans to applicants from 6th June 2022 in absence of any feedback on the matter and closure of the discussions between the two parties.”  Previously, Masupe had also had requested the Ministry to consider a review of clause 3 of the agreement which speaks to the interest rate charged on the facilities.

Masupe indicated in the letter dated 21 December 2021 that although all the Banks in the market had signed a similar agreement, subject to amendments that each may have requested. “We would like to suggest that our review be considered individually as opposed to being an industry position as we are cognisant of the requirements of section 25 of the Competition Act of 2018 which discourages fixing of pricing set for consumers,” he said.

He added that,“In this way,clients would still have the opportunity to shop around for more favourable pricing and the other Banks, may if they wish to, similarly, individually approach your office for a review of their pricing to the extent that they deem suitable for their respective organisations.”

Masupe also stated that: “On the issue of our request for the revision of the Interest Rate, we kindly request for an increase from the current rate of prime plus 0.5% to prime plus 2%, with no other increases during the loan period.” The Bank CEO said the rationale for the request to review pricing is due to the current construct of the GEMVAS scheme which is currently structured in a way that is resulting in the Bank making a loss.

“The greater part of the GEMVAS portfolio is the mortgage boo which constitutes 40% of the Bank’s total mortgage portfolio,” said Masupe. He saidthe losses that the Bank is incurring are as a result of the legacy pricing of prime plus 0% as the 1995 agreement which a slight increase in the August 2018 agreement to prime plus 0.5%.

“With this pricing, the GEMVAS portfolio has not been profitable to the Bank, causing distress and impeding its ability to continue to support government employees to buy houses and cars. The portfolio is currently priced at 5.25%,” he said.  Masupe said the performance of both the GEMVAS home loan and auto loan portfolios in terms of profitability have become unsustainable for the Bank.

Healso said, when the agreement was signed in August 2018, the prime lending rate was 6.75% which made the pricing in effect at the time sufficient from a profitable perspective. “It has since dropped by a total 1.5%. The funds that are loaned to customers are sourced at a high rate, which now leaves the Bank with marginal profits on the portfolio before factoring in other operational expenses associated with administration of the scheme and after sales care of the portfolio,” said the CEO.

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