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Appeal case on scope of PSBC resumes

A case in which the Government, in collaboration with Botswana Public Employees Union (BOPEU) has appealed the judgement of Justice Tshepo Motswagole of the Gaborone High Court which nullified the unilateral decision by Government to award salary increment outside the Public Service Bargaining Council (PSBC) is slated for next week at the Court of Appeal in Gaborone.

The appeal follows government (and BOPEU) application of stay of execution of the said (Motswagole) judgement in May in which Judge Justice Monametsi Gaongalelwe who sat on bench alone “upheld” – pending the current appeal. Prior to the appeal, Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPUSU) made an application seeking the court to set aside government’s decision which it contended that it was a breach of PSBC as it was not a decision (of the PSBC) process. Most importantly, they also wanted the court to clarify the scope of the PSBC, which is mandated to negotiate salaries and conditions of service for all public servants.

When making the judgement on the matter (currently being appealed), Justice Motswagole stated categorically that: “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,” he said. At the time, BOPEU was not sitting in the PSBC and it is understood that hence the team up with government against their rival BOFEPUSU.

BOFEPUSU, also feeling drained and outdone by the flip flopping on the matter would later withdraw their membership from the PSBC, the decision which is effective to date. However the federation still contends the matter is still relevant to them and they are watching closely.   

“To us this case is still relevant and important as the Bargaining Council is there. It is non – functional currently but it does not mean that it does not exist. In future, we may want to apply for admission,” BOFEPUSU Secretary General Tobokani Rari told Weekend Post in an email conversation.

According to Rari what they are fighting for is a principle that governs industrial councils all over the world, whether the council ultimately gets deregistered and another one concocted “as we hear is the intention of government,” they are of the strong view scope of the PSBC would remain the same as an industrial council. “So to us is an issue of fighting for principle that would ultimately protect the PSBC and the principle of bargaining in this country irrespective of the form that PSBC is composed,” BOFEPUSU SG insisted.

Background of the case until the current appeal

When narrating the marathon case, Rari stated that it is the case that resulted in some public servants (those whose unions were outside the PSBC) getting and increment of a 3% for 12 months (July 2015 to July 2016) and later also getting another increment of a 4% for about three (3) months, while the other section of the public service, those whose unions were admitted into the PSBC, were not getting such salary adjustments. He explained that this was because in an attempt to restore the powers of the PSBC after government has by-passed the council by unilaterally adjusting salaries for public servants in April 2015, BOFEPUSU then approached the Industrial Court to get a interim interdict of the unilateral increment and the by – passing of the PSBC.

He then said the Industrial Court through Judge Rihukhia sort of held that the scope of the PSBC is restricted to those public servants whose unions are admitted into the PSBC. “In taking this view, the decision of the Industrial Court meant that government could adjust conditions of service for those public servants whose unions are not in the PSBC even when the PSBC is still seized with a negotiation process, to the exclusion of those whose unions are admitted into the PSBC, hence the selective and discriminatory 3% and 4% salary adjustment of 2015 and 2016 respectively as mentioned,” Rari further highlighted.  

In realizing that the Rihukhia judgment was perpetuating the undermining of the PSBC by limiting its scope and influence, he said BOFEPUSU approached the High Court for a final determination of the matter. “The case was heard at the High Court by Justice Motswagole who agreed with BOFEPUSU that the PSBC is an industrial council hence its scope and decision affect and binds all public servants inclusive of those whose unions that would have at the material time not admitted in the PSBC safe only for those expressly excluded by the PSA.”

Rari said Judge Motswagole went further in his judgment to as a consequence declare that the 3% and the 4% that was being granted exclusively to those public servants whose unions were not in the PSBC was unlawful as adjustment of conditions of service for public servants was purely a preserve of the PSBC. Judge Motswagole as a result interdicted the 4% and 3%, he added.

“However, government and BOPEU fighting on the same corner decided to approach the Court of Appeal on urgency to pray for the stay of Execution of the Motswagole judgment pending the hearing of an appeal against it,” he highlighted. He added that Justice Gaongalelwe, sitting as a single Judge of the Court of Appeal agreed with government and BOPEU and stayed the execution of Motswagole judgment leaving the situation as it was before the Motswagole judgment. According to Rari, the Judgment by Justice Gaongalelwe in upholding the pray by BOPEU and government of a stay of execution of the Motswagole judgment, made a number of decisions that caused serious debates in the judicial circles.


Some of them he added that it included the issues of the stoppage of payment of the 3% and the 4% to non – unionized and those whose unions are not in the PSBC was still before judge Motswagole on a return date, but Judge Motswagole usurped the powers of another court in determining on it. 
He also said while Judge Motswagole entertained the stay, he however decided that the case will come 5 months later in spite of the fact that this case from lower courts has always been urgent as it affected increment of thousands of public servants.


Rari further pointed out that this is the decision that resulted in BOFEPUSU withdrawing from the PSBC as the decision effectively meant that the members of the BOFEPUSU affiliated unions, which was then admitted into the PSBC, would not enjoy any increment until after October 2017 when the CoA would listen to the scope case. “That was in May 2017, and BOFEPUSU would have to wait for more than 5 months before bargaining while their members would be getting any increment and they had already gone for more than a year with an increment hence the decision by BOFEPUSU to withdraw from the PSBC,” he justified. Meanwhile, in the appeal next week BOFEPUSU has engaged Advocate Alec Freund while government will be represented by Advocate Tim Bruinders.


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Details emerge in suspected Batswana poachers in Namibia

28th June 2022
suspected Motswana poacher arrested

New details about a suspected Motswana poacher arrested in Namibian and his accomplice who is on the run were revealed when the suspect appeared in court this week.

The Motswana Citizen who was shot and wounded by Namibia’s anti poaching unit is facing criminal charges under criminal case number (CR NO 10/06/2022) which was registered at the Divundu Police Station in the Mukwe constituency of the Kavango East Region on 10 June 2022.

It is alleged that a patrol team laid an ambush after discovering a giraffe’s fresh carcass in a snare wire and hanging biltong.  According to the Charge Sheet, the suspect Djeke Dihutu, aged 40 years, is charged with contravening and transgressions of Nature Conservation Ordinance andcontravening Immigration Act 07 in Mahango Wildlife Core Area, Bwabwata National Park. Dihutu’s first court appearance was on the 17th of June 2022, Rundu and it was postponed to the 07 July 2022. He is currently hospitalized in hospital under Police Guards.

Commenting on this latest development, the Namibian Lives Matter Movement National Chairperson Sinvula Mudabeti applauded the Namibian Anti Poaching Unit for its compliance with what it called the universal instrument on the Code of Conduct for Law Enforcement Officials adopted by the United Nations General Assembly resolution 34/169.

“We are aware that the duties of the police carry a great deal of risk, but our police has shown that they have a moral calling and obligation to protect even foreigners suspected of serious crimes on Namibian soil,” said Mudabeti.

According to him, whereas the Botswana Police Service, the Botswana Defence Force (BDF) and Directorate of Intelligence Service (DIS) have “very low moral ethics, integrity, accountability and honesty, the Namibian security agencies has shown very high levels of ethical leadership in the discharge of their duties even under duress.”

He said Namibian’s anti poaching unit has exercised one very important value, that is, the use of force only when it is reasonable and necessary. Mudabeti said this is in harmony with international best practices as enshrined in Article 2 of the UN instrument on law enforcement conduct, “In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

Our police have protected the life of a Botswana poacher and accorded him dignity, which is very foreign to our Botswana counterparts,” he said. He said article 3 of the same instrument above, calls for Law enforcement officials to use force only when strictly necessary and to the extent required for the performance of their duty.

“This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of suspected offenders, no force going beyond that was used by our Police,” he said.

Furthermore, Mudabeti said, whereas the universally accepted norm of the law of proportionality ordinarily permits the use of force by law enforcement, it is to be understood that such principles of proportionality in no case should be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.

“Our police have used force proportional to the situation at hand. Great work indeed! Article 6 urges law enforcement officials to ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required,” he said.

Mudabeti said the Botswana poacher was immediately taken to hospital whereas the Nchindo brothers who were captured on Namibian soil, beaten, tortured and executed while pleading to be taken to the hospital we left to die.

“The Namibian Doctor gave evidence in court that Sinvula Munyeme’s lungs showed signs of life (during the autopsy) and that he could have survived if he was accorded immediate medical assistance in time but was left to die while BDF soldiers looked and possibly ignored his cry for help,” he said.

Mudabeti said unlike in Botswana where there are no clear separation of powers between the BDF, Botswana Police Service, Department of Intelligence and their Directorate of Public Prosecutions,” we have a system that allows for checks and balances and allows our people and foreigners who are found on the wrong side of the law to be accorded the right to a fair trial.”

He said Botswana citizens are treated with dignity when apprehended in Namibia and not assaulted, tortured and executed. “We are a civilized country that respects international law in dealing with non-Namibian criminals. The Namibian Police have not mistreated the Botswana poacher but have given him the benefit of the doubt by allowing due processes of the law to be followed,” he said.

He added that, “We are a peace loving nation that has not repaid Botswana by the evil that Botswana has done to Namibia by killing more than 37 innocent and unarmed Namibians by the trigger happy BDF.” He concluded that, “Our acts of mercy in arresting Botswana citizens should never be mistaken for cowardice.”

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Gov’t, Unions clash over accommodation

28th June 2022
accomodation

The government has reportedly taken a decision to terminate provision of pool housing and subsidy for civil servants as it attempts to trim the public service wage bill.

This emerges in a dispute that is currently before the Labour Office headquarters lodged by unions representing thousands of civil servants across the country. This publication understands that the decision to cease providing pool housing and rental subsidy for public officers is part of proposals that government put on the table during its negotiations with public service unions in order for it to adjust salaries.

A letter from Labour Office addressed to the Directorate of Public Service Management (DPSM) shows that the directorate is cited as the First Respondent. The letter is titled, “Dispute lodged: Cessation of provision of pool housing and subsidy for pubic officers.”

“This serves as a notification and requirement to a mediation hearing,” the letter informed DPSM. According to the letter, the Botswana Teachers Union (BTU), Botswana Sectors of Educators Trade Unions (BOSETU) Botswana Nurses Union (BONU) and Botswana Land Board &Local Authorities &Health workers Union (BLLAHW) who lodged the complaint are cited as the Applicant.

“Please come for mediation hearing. The hearing will be conducted by Mr Lebang. The hearing is scheduled for date/time 29th June 2022, 09: 00HOURS at Block 8 District Labour Office, Gaborone. Please bring all relevant documents,” reads the letter in part.

According to a document described as a proposal paper on the negotiations on salaries and other conditions of employment of public officers by the employer (government), the government did not only propose to stop providing accommodation to civil servants but also put a number of proposals on the table.

The proposal papers states that the negotiations (which have since been concluded) cover three government financial years; 2022/23, 2023/24 and 2024/25. The government proposed an across the board salary adjustments as follows; 3% for the financial year 2022/23 effective 1st April 2022, across the board salary adjustment of 3.5% for the financial year 2023/24 effective 1st April 2023 subject to performance of the economy and across the board salary adjustment of 4% for the financial year 2024/25 effective 1st April 2024 subject to performance of the economy.

The government also proposed phasing out of retention and attractive (Scarce Skills) Allowance with a view to migration towards clean pay, renegotiate and set new timelines for all outstanding issues contained in the Collective Labour Agreement, executed by the employer and trade unions on the 27th August 2019, to ensure proper sequencing, alignment and proper implementation.
The government also proposed to freeze public service recruitment for the 2022/23 financial year and withdraw the financial equivalence of P500 million attached to vacancies from Ministries, Department and Agencies (MDAs).

Another proposal included phasing out of commuted overtime allowance and payment of overtime in accordance with the law and review human resource policies during the financial year 2022/23, 2023/24 and 2024/25.

The government argued that its proposals were premised on affordability and sustainability adding that it was important to underscore that the review of salaries and conditions of service for public officers was taking place at a time when there were uncertainties both in the global and domestic economies.

“Furthermore there is need to ensure that any collective labour agreement that is concluded does not breach the fiscal deficit target of 4% of GDP,” the proposal paper stated. The proposal paper further indicated that beyond salary adjustments, the Government of Botswana is of the view that a more comprehensive consideration “must be taken on the issue of remuneration in the public service by embracing principles such as total rewards compensation which involves taking a fully comprehensive and holistic approach to how our organization compensates employees for the work.”

The proposal paper also noted that, “Clearly, the increase in salaries and changes to other conditions of service which have monetary consequences will further increase the proportion of the budget taken by salaries, allowances and other monetary based conditions of services.”

“The consequential effect would be a reduction of the portion that can be used for other recurrent budget needs (e.g. maintenance of assets, consumable supplies such as medicines and books) and for development projects,” the proposal states.

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BPF NEC probes Serowe squabbles

28th June 2022
BPF

Opposition Botswana Patriotic Front (BPF) National Executive Committee will in no time investigate charges party members worked with the ruling Botswana Democratic Party (BDP) membership to tip the scales in favour of the latter for Serowe Sub-council Chairmanship in exchange for deputy seat in a dramatic 11th hour gentleman’s deal, leaving the ruling party splinter under the political microscope.

In a spectacular Sub-council election membership last Thursday, the ruling BDP’s Lesedi Phuthego beat Atamelang Thaga with 14 votes to 12 for Serowe Sub-council Chairmanship coveted seat and subsequently the ruling party’s councilor Bernard Kenosi withdrew his candidacy in the final hour for the equally admired deputy chair paving the way for Solomon Dikgang of BPF, seen as long sealed ‘I scratch your back and you scratch mine’ gentleman’s agreement between the contenders.

Both parties entered the race with a tie of votes torn between 12 councillors each, translating for election race that will go down to the wire definitely. But that will not be the case as two BPF councilors shifted their allegiance to the ruling party during the first race for Chairmanship held in a secret ballot and no sooner was the election concluded then the ruling party answered back by withdrawing its candidacy for the deputy chair position to give BPF’s Dikgang the post on a silver platter unopposed.

BPF councilor Vuyo Notha confirmed the incident in an interview on Wednesday, insisting the party NEC was determined to “investigate the matter soon”. “During the race for the Chairmanship, two more BPF voted for alongside the ruling party membership. It was clear Dikgang voted alongside the BDP as immediately after the vote for Chairmanship was concluded, Kenosi withdraw his candidacy to render Dikgang unopposed as a payback,” Notha added.

As for the other vote, Makolo ward councilor will not be drawn for the identity preferring instead to say: “BPF NEC will convene all the councilors to investigate the matter soon and we will take from there.” Notha will also not be drawn to conclude may be the culprit councilors could have defected to the ruling party silently.

“If they are no longer part of us they should say so and a by-election be called,” was all he could say. As it stands now, the law forbids sitting Councilors and Parliamentarians from crossing the floor to another party as to do so will immediately invite for a new election as dictated by the law. Incumbent politicians will therefore dare not venture for the unknown with a by-election that could definitely cost their political life and certainly their full benefits.

Notha could also not be dragged to link the culprit councilors actions to BPF Serowe region Chairperson Tebo Thokweng who has silently defected to the ruling party and currently employed by the party businessman and former candidate for Serowe West Moemedi Dijeng as PRO for the highly anticipated cattle abattoir project in Serowe.

“As for Thokweng he has not resigned from the party but from the region’s chairmanship,” he said. WeekendPost investigations suggest Thokweng is the secret snipper behind the recruitment drive of the votes for the elections and is determined to tear the party dominance in Serowe and the neighbouring villages asunder including in Palapye going forward.

This publication’s investigations also show BPF’s Radisele and UDC’s Mokgware/Mogome councilors are under the radar of investigations for the votes-themselves associated with the workings and operations of Thokweng.

“NEC will definitely leave no stone unturned with their investigations to get into the bottom of the matter. Disciplinary actions will follow certainly,” Notha concluded, underscoring the need to toe the party line to set a good precedent. For the youthful councilor, the actions of his peers has set a wrong precedent which has to be dealt with seriously to deter future culprits.

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