Lobatse Town Council (LTC) is refusing to stop deductions of subscriptions of its employees, who were before termination, members of Botswana Land Boards, Local Authorities & Health Workers Union (BLLAHWU); Gaborone High Court Judge Justice Terrence Rannowane heard this week.
In the matter before the High Court, ex BLLAWHU members want the court to declare that the union and Lobatse Town Council (LTC), by continuing to withhold BLLAWHU member subscription fees after having being instructed by the individual employees to stop deductions, are violating the Employment Act.
Section 79 of the Employment Act states: “(1) Except where otherwise expressly permitted by this Act or any other written law, no employer shall make any deduction or make any agreement with any employee (whether or not the agreement is contained in the contract of employment) for any deduction from the wages to be paid by the employer or from any other payments which may be due to the employee or for any payment to the employer by the employee:
Provided that this subsection shall not apply to deductions deposited with the sanction of the Commissioner under section 45. (2) any employer who contravenes subsection (1) shall be guilty of an offence and liable to the penalties prescribed by section 151(d).”
The members, who are around 65 in number, insist that BLLAHWU and LTC should be ordered forthwith from deducting their subscription fees. In addition, they request that the court direct that the duo to reimburse the claimants all monies unlawfully withheld by them. According to court documents seen by WeekendPost the members earlier this year terminated their membership with the union. However the request is said to have fallen on deaf ears.
Although members insist that they informed the Council of the termination, LTC on the other hand told court that there is no proof to substantiate the allegation. An esteemed attorney Uyapo Ndadi of Ndadi Law Firm, representing Keabetswe Sera and 65 others stated in his oral arguments in court this week that: “Lobatse Town Council (LTC) refused an instruction from employees to stop the deduction.”
He continued: “instructions came from employees when the deductions started, and now when they wanted the deductions to stop they followed the same process by writing a letter to employer (LTC) to terminate their deduction. But the employer said they are not going to accede to the request.”
The prominent Attorney explained that employees must authorize employers for the deductions and the law doesn’t give unions any power to be consulted with or be heard, adding that it’s the sole prerogative of employers. Therefore, the lawyer said, in terms of BLLAHWU he is not seeking any substantive relief against them but only from the employer, adding that unions were only cited as an interested party to the matter.
“The union (BLLAHWU) is an interested party because the money deducted from the members does go to them. By continuing to withholding BLLAHWU members’ subscriptions, LTC is violating the Employment Act. Who is deducting money in favour of the unions? It’s only employers. Unions have no control of deducting and there is nothing that the unions can do.”
In January this year, the well regarded lawyer emphasized that there was a sign and power of attorney calling the employer (LTC) to stop deductions. “Therefore they cannot be any sign of seriousness like approaching the courts,” he was quoted as saying. Ndadi said the Local Government Act is clear and gives the Council authority and power to sue and be sued where it warrants so.
In prior heads of arguments, Ndadi, together with Ramou Jallow stated that “the employer was further served with a Statutory Notice by way of registered mail to stop deductions as they are unauthorized and offensive to the Employment Act. Despite the instructions and the demand via the Statutory Notice, the deductions have continued to this day.”
They pointed out that authorization was withdrawn by the employees in relation to the employer, which renders any further deductions from their salaries unlawful and the employees are consequently entitled to a full refund of their respective subscriptions and for the deductions to stop forthwith.
For his part, a close friend of Ndadi, Martin Dingake of Dingake Law Partners who stood in for BLLAHWU, said he was surprised that Ndadi is raising the matter to the effect that they are only an interested party in the oral arguments and did not mention such position in advance in their heads of arguments so that they prepare their contrasting point.
“So today, the applicants’ lawyer (Ndadi) said we have only been cited as an interested party but unfortunately they did not state it in any of their documents like affidavits, notice of motion, heads of argument etc,” the renowned lawyer in Dingake pointed out. Dingake’s point of view was that at that point, since they know the relief is not being sought by the applicants (that Ndadi is representing), it then meant they can change their position, which might also have consequences.
He highlighted that as a consequence it means that the case should revolve around whether or not their opposition to the matter is reasonable or unreasonable and against whom. In defending BLLAHWU, the legal guru went on further to however indicate that withholding of the subscription fees by the union is only lawful adding that the matter is between employer and the union as per the collective labour agreement which is binding – as the expectations is that each deals with the other in good faith.
“Consent was given. Union members, right at the bottom of the consent pledges herself that authorization of deductions continues. Therefore there is no contravention of any law,” Dingake asserted in court. In his assessment he told court that the application is without merit and should be dismissed with costs since no relief has been sought to them (BLLAWHU) they are also entitled to costs in the matter.
Meanwhile in his written heads of argument he had stated: “the applicants did not terminate in accordance with the constitution that governs the union and as such a consequent of that they have effectively failed to terminate their membership.” As such he emphasised “the applicants have failed to terminate membership in accordance with the constitution that governs the union that they are members of and the collective labour agreement.”
When responding to the whole matter in court, Thapelo Mphala, who filed the papers with Charity Mahube on behalf of Lobatse Town Council (LTC), said he immediately abandons his earlier contention in his heads of arguments in relation to the Employment Act and raises fresh arguments of locus standi. The attorney brought to the attention of court that “Lobatse Town Council is not the statutory employer of the applicant members on this matter, and therefore deductions are not done by the Council but by the Treasure General of the union which is not an office with LTC in terms of the Local Government Act.”
However the Judge interjected to ask why they participated in the matter while they knew they had no locus standi. Mphala said they appeared because they had already been brought to court. “Applicants must instead crude against the Attorney General not LTC. LTC is a separate entity with its own functions encapsulated in the Local Government Act.” He said the Council cannot reimburse the applicants because the union (BLLAHWU), rightfully before court, is the one which holds the members’ money and not the council.
Although he said they do not have locus standi he also mentioned that the members in question have not signed to terminate their subscriptions at the Council. He argued in the papers that none of the 77 members cited in the papers appended their signatures on their termination letters except for 21 whom have already been sorted out. “We humbly submit that clearly this is a new matter and the Applicants are not being candid with this Honourable Court, they have crafted the list attached to the letter for their own convenience and to mislead the Honourable Court.”
Gaborone Bonnignton South Member of Parliament (MP) Christian Greef has submitted a letter of complaint to party chairman Slumber Tosogwane to take stern action against former minister Dr Alfred Madigele for causing chaos in the constituency.
There has been simmering tension between the two in Gaborone Bonnignton South, where former minister Dr. Madigele is said to be busy working the ground with the intention of contesting the constituency in 2024. Greef is said to have fallen out of favour with the party top hierarchy due to his association with the beleaguered party secretary general Mpho Balopi, something which he says is “unfounded”. Greef told this publication that “there are some with mischievous attempts here, but I will sort them out.”
Insiders, however, reveal that it is Madigele who has been causing unrest in the constituency as he plots his comeback to parliament in 2024. This is notwithstanding the fact that Madigele has also been promised the position of secretary general, should the party faithful ratify a proposal by the party politburo to reconfigure the position.
However, Madigele does not want to count on the SG position, hence the decision to to contest the Gaborone Bonnington South constituency. There are reports that there is a spirited campaign by some party members to reject a mulled plan to have the SG being a full-time employee of the party. This has irked Greef and has since approached the party structures for redress. “We are writing this letter to issue a complaint regarding misconduct by certain members of the BDP in our constituency.
There are several incidents where these individuals have been causing uncalled-for disruptions during party activities in Gaborone Bonnington South,” a letter penned by Greef, addressed to the regional chairperson, reads. He further added, “The group of people who are causing all these unnecessary tension in our constituency is identified and allegedly known by Madigele’s teams who is said to be campaigning for 2023 primary elections.
As the branch we witnessed the same team with similar misconduct during Bophirima Ward by election which we believe caused the party to lose the ward and continue to bring the image of the party in disrepute.” Lately, Madigele has relocated to the same constituency and that has created anxiety to Greef who is a first-time MP. Greef is concerned about how his rival was accepted in his constituency without his knowledge. If he had his wish, he would kick out Madigele from the constituency.
Greef, in another letter copied to President Dr Mokgweetsi Masisi and Chairman Slumber Tsogwane, says Madigele has brought the branch into disarray by campaigning for a parliamentary seat contrary to the party’s regulations for conduct of primary elections. “I therefore humbly appeal to you to call Dr Madigele, who is not a member of our branch, to order,” he said. Party officials in the region are aware of the matter; some say the MP’s complaint is baseless. However, the MP, according to sources, will fight to the bitter end to ensure that his arch rival is purged out.
Monthe and Marumo Attorneys who are representing suspended Director General of the Directorate on Corruption and Economic Crime (DCEC) Tymon Katlholo in a legal dispute pitting him against the Directorate of Intelligence and Security (DIS) have said that they would submit a legal bill to the agency.
This was after DCEC’s acting Director General, Tshepo Pilane had written a letter to the law firm demanding that some files and documents belonging to the agency be returned. “We refer to your letter dated 3rd June 2022 wherein you advised of termination of our mandate. In view thereof we have to file a notice of withdrawal as attorneys of record for and on behalf of the Organisation (DCEC),” Monthe Marumo Attorneys said in their letter.
The lawyers also indicated that, “the firm is in the process of finalizing your invoice and upon settlement of same, we will duly release the contents of the file, in so far as it relate to DCEC.” Pilane had informed the law firm that, “Following the Directorate’s termination of any and/or mandate between the Director General of the Directorate on Corruption and Economic Crime (DCEC) and your law firm and/or attorney of an Associate law firm of Monthe Marumo and Company on the 3rd June 2022.”
He added that, “I do hereby request that all DCEC documents in custody be returned to the DCEC on or before 12hours today the 6th June 2022. You are also informed that none of this information shall be used by your office under any circumstances.” Meanwhile Katlholo has told the High Court that the Directorate of Intelligence and Security was on the rampage as it continues to act with impunity.
He revealed this in an urgent application in which he seeks among others that Pilane, Deputy Director General of DCEC Priscilla Israel and the agency’s senior legal advisor Edwin Batsalwelang to be committed to jail for contempt of a court. The Court order had directed that a deputy sheriff should collect files and dockets from the DCEC office and place them into the custody of the Court. “Consequent to the order of his Lordship, the DISS has continued on its rampage and has arrested two officers of the DCEC and detained them in a Hitler style arrangement,” said Katlholo.
He added that, quite clearly the “DISS with the assistance of the 1st to 3rd Respondents seeks to conceal all the evidence by obstructing Judicial process.” He said his latest current application has been brought at the earliest opportunity following defiance and acts of obstruction at the instance of the respondents. Katlholo saidthe conduct of the Pilane, Israel, Batsalelwang and DIS are an aggression on the rule of law, the Constitution of Botswana and the Judiciary in general.
“The DISS clearly has every intention of continuing to defy my rights and with the due assistance of the 1st to 3rd Respondents (Pilane, Israel and Batsalelwang). To refuse an interdict, thereby allowing the perpetration of an ongoing wrong is an anathema to the principle of legality,” said Katlholo. He said, “The DISS cannot be allowed to continue acting in contravention of the law, and to fragrantly invade an act of Parliament.”
He reiterated that the files or documents or dockets remain vulnerable and there is need that they be removed from the office and placed in the custody of the Registrar. There can never be a safe place than Court, said Katlholo. “Should the matter not be heard as urgent, the likelihood of the files concerned and the information therein dissipating or being interfered with is high and once the evidence of the concerned files has been compromised or contaminated there is no other relief in law that fix such, there is therefore no alternative remedy,” he said.
Katlholo added that, “Most importantly, any unwarranted access to the files may compromise the integrity of ongoing investigations and expose informants and whistleblowers. Once they have been compromised, no court action may restore such.” He said it was necessary and extremely urgent that the Court steps in to protect the rule of law against the respondents, more particularly the DIS and its agents.
The United States through its State Department’s annual report on global religious freedoms is keeping tabs on Botswana’s decision to arrest of controversial pastor Thuso Tiego by the police.
The report was released a week ago. Tiego was re-arrested this week by the police after he allegedly attempted to spearhead a campaign aimed at shutting down some shops that are run by foreigners. The US’ State Department report says Police arrested a pastor from the Bethel Transfiguration Church September 7 when he tried to deliver a petition to President Mokgweetsi Masisi demanding his resignation over what the pastor said was mismanagement of the COVID-19 crisis.
“The pastor, Thuso Tiego, also criticized the government for restricting religious gatherings at a time when he said that individuals turned to churches for counselling and support during the pandemic,” the report says. It says Tiego was held overnight at a police station and released without charge. The report cites media reports saying that several of his supporters were beaten by police when they gathered outside the station demanding Tiego’s release.
“The national police service did not announce any disciplinary action against the officers involved,” the report says adding that, “The constitution provides for freedom of religion, with certain exceptions, and protection against governmental discrimination based on creed.” On other related issues, the report said the government continued to pursue court cases involving unregistered churches (sometimes called “fire churches”) coming into the country to “take advantage of” local citizens by demanding tithes and donations for routine services or special prayers.
“The government required pastors of some of those churches to apply for visas – even those from countries whose nationals were normally allowed visa-free entry. The government said in June 2019 that it was reviewing the visa policy for these foreign pastors, but by year’s end had not released the results of this review or announced any changes,” the report says. According to the report, former members of one of the most prominent unregistered churches forced to close in 2019, the Enlightened Christian Gathering, subsequently formed their own smaller, independent churches with local leadership that was ultimately registered by the government.
The report says, under the COVID-19 state of emergency that ended in September, the government limited attendance at religious services to no more than 50 persons at one time and limited services to twice a week. The government also banned all religious gatherings during “extreme social distancing” periods. Although the limits on religious gatherings lasted 18 months and prevented some individuals from fully practicing their faith, most religious groups did not say their freedom of religion was being restricted and stated that the extraordinary measures were necessary for public health
The report says the US Embassy officials engaged with Muslim, Buddhist, Christian, and other religious representatives to discuss religious freedom, interreligious relations, and community engagement. “Topics included government tolerance of minority religious groups, the impact of COVID-19 restrictions on religious expression, and interfaith cooperation to address community challenges,” the report says.
The report says under its broader protections of freedom of conscience, the constitution provides for freedom of thought and religion, the right to change religion or belief, and the right to manifest and propagate religion or belief in worship, teaching, practice, and observance. It says the constitution’s provision of rights also prohibits discrimination based on creed.
The constitution permits the government to restrict these rights in the interest of protecting the rights of other persons, national defense, public safety, public order, public morality, or public health when the restrictions are deemed “reasonably justifiable in a democratic society.” “The state of emergency imposed from March 2020 to September 2021 to prevent the spread of COVID-19, which capped the size of regular religious gatherings and meetings, was the first time the government ever exercised this provision,” the report says.