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.”
Stanbic Bank Botswana Quarterly Economic Review indicates that Botswana will fail to meet some of its Vision 2036 targets, particularly unemployment reduction and reaching high-income status.
The report says this is mainly due to the slow economic growth that the country is currently experiencing. This Quarterly Economic Review focuses on the 2020 Budget Speech.
The first paper reviews the entire budget with its key observations being that this budget is prepared as prescribed by the Public Finance Management Act; the priorities it seeks to address are drawn from Vision 2036 and the eleventh
The 2020 budget Speech, which was the maiden speech by the Minister of Finance and Economic Development, Dr. Thapelo Matsheka, and the first after the 2019 general elections, was delivered to Parliament on the 4th of February 2020.
It has been well received by the labour unions, business community, and the public at large as well as international organisations such as the International Monetary Fund (IMF).
It mainly derived its support from key facets including, emphasis on changing the business-as-usual approach to development; outlining the transformation agenda; fiscal reform that minimizes the negative impact on economic development and human welfare, competiveness and the decision to implement the 2019 negotiated and agreed public sector.
The budget’s progress review shows that economic growth was consistent with the NDP 11 projections, with growth of around 4 percent. At this growth rate, the country would neither ascend to a high-income status nor reduce unemployment towards the Vision 2036 target of a single digit.
Simple calculations of this review confirm that the economy will need to grow the Vision 2036’s target of 6 percent over the next 16 years for per capita income to increase from around USD 8,000.00 to above USD 12,000.00 in current prices.
Further, the population is anticipated to grow by only 2 percent per annum.
For this reason, the focal areas for the forthcoming FY’s budget include measures to increase economic growth towards an average of 6 percent per annum.
Economic diversification is reportedly progressing fairly well. The report says, the share of the non-mining private sector in value added has risen to 66 percent in 2018 from to 63 percent in 2015.
The sectoral pattern of growth showed that the performance of services sector (particularly transport & communications, trade, hotels & restaurants, and finance & business services) has been the silver lining and that of mining sector was subdued whilst the utility sector disappointed.
The drive towards the service sector of the economy, especially to low-productivity activities (tourism, public administration, wholesaling and retailing) does not bode well for the country’s development aspirations.
In the previous versions of this Quarterly Review, it was noted that there is need for the rethinking of economic diversification. Since the country’s domestic market is small, it is inevitable that economic diversification not only focus on broadening the product mix, but also the composition of exports and markets.
This understanding of economic diversification has not been embraced by this year’s budget. Consequently, Botswana’s exports are still overwhelmingly diamonds, which means that the rest of economic sectors are still highly dependent on foreign-exchange earnings from diamonds. Thus, “the transformation programme requires a review of the country’s entire ecosystem”.
The budget review of the economic context also depicts that an economy with positive medium-term prospects, with growth expected to recover to 4.4 percent in 2020 from the expected growth of 36 percent in 2019 largely due to faster growth of services sectors and, thereafter, to slow-down to 4 percent in 2021.
These projected growth rates are comparable to those of the IMF staff’s baseline scenario of 4.2 percent in 2020 and 4 percent in 2021. Thus, the business-as-usual scenario produces growth rates that are still too low to achieve Botswana’s development objectives and create enough jobs to absorb the new entrants into the labour market.
Trade tensions between the two major markets for diamond exports, viz., the United States of America and China, is one of the factors that are cited as contributing to, indeed, undermining not only the domestic growth, but also the fiscal position.
Another notable downside risk to both global and domestic growth is outbreak of the coronavirus in China around January 2020. This has been declared as a global health emergency. In an attempt to contain the spread of the novel coronavirus pneumonia, the Chinese authorities have ordered city lockdowns and extended holidays, of course, at the expense of near- term economic growth, according to the new Stanbic Bank Botswana report.
According to Nomura Holdings Inc., fewer migrant workers returned for work than in previous years and business activities have been slow to pick up. The havoc wreaked by the virus on the world’s second largest economy is likely to spill over to the global economy. In fact, it has resulted in a glut in crude oil and, thereby placed oil markets into a contango, i.e., a market structure where near-term prices trade at a discount to future contracts.
It also presents significant risks one of Botswana’s main drivers of economic growth, diversification and foreign exchange earnings. According to the Financial Times (February 13, 2020), Chinese tourists spent $130 billion overseas in 2018. Regardless of whether the growth materializes, the projected domestic growth rate would not transform the economy to a high-income one.
Progress towards reduction of unemployment, to a target of single digit, and poverty and achieving inclusive growth has also been relatively slow, the Stanbic Bank Botswana Review says.
Ministry of Presidential Affairs, Governance and Public Administration (MOPAGPA) has through the Office of the President (OP) proposed to avail Orapa House for use by private training institutions as well as research institutions involved in the area of technology development.
For a very long time the monumental building located in the heart of the city has been a white elephant, despite government purchasing it for nearly P80 million from De Beers in 2012.
However, government has now identified a productive use for the iconic building. “The overall vision is for the building to be transformed into a hub for digital technology research and development to be carried-out by institutions, such as; Limkokwing University, BIUST, BITRI and other relevant stakeholders.”
The decision was taken as government traverse a new path of transforming the economy from a mineral led economy to a knowledge based economy through the promotion of research and innovation. However, the facility will need major maintenance to be carried-out in order to meet the requirements of the proposed change in use.
“The work will include provision of laboratories, work stations, production areas and seminar rooms; audio visual centre, high speed internet connectivity, exhibition areas and offices,” reads the proposal note for the development.
These developments will be done through the refurbishment and maintenance of the main building, workshop, and ablution block, gate house, parking area, grounds, and access control and security service.
“There will be minimal modifications to the structure as it stands. The project is estimated to cost approximately P50, 000, 000,” says the report. In this regard, it is said, the initial scope of the OP facility will be modified to accommodate the envisaged digital technology research and development hub.
With funds needed to improve the building, OP has requested that; “the 2020/21 annual budget provision for Orapa House will need to be increased by P37,500,000 from P2,500,000 to P40,000,000 to kick start the maintenance works.” Funds will be sourced from the projects that have been delayed due to Covid-19 protocols during the 2020/21 financial year.
The building has been a thorny issue for government for years. Initially, OP was expected to move there but the move never materialised. At one point it was a question of whether the Office of the President and the Ministry of Finance and Economic Development were planning to override a decision by Parliament which rejected the proposal to buy Orapa House under the belief that government may be buying its own property. The building was to be bought at a negotiated cost of P79 million.
Again in 2012, Government had wanted to buy Orapa House for a negotiated P79m but the Finance and Estimates Committee of Parliament had rejected the request because of the inconsistencies realised in the supporting documents of the proposed procurement. The valuation of the building was put at P74 million.
The Ministry of Lands and Housing had initially offered De Beers P73, 000,000 as the purchase price. However, De Beers countered with P85, 000,000. On negotiation and converging of the minds, the selling price was finally agreed at P79, 000,000.
Auditor General, Pulane Letebele, has expressed discontentment at the worrying and deteriorating state of brigades in the country.
In an audit inspection which was carried out at Tshwaragano Brigade in Gabane, a number of observations showed weaknesses and shortcomings in the conduct of the financial affairs of the institution.
According to Letebele’s report, former students of the brigade had been engaged to carry out maintenance works on the school premises, comprising of painting, tiling, plumbing and electrical works, which covered the period from July 2017 to June 2018.
Although the agreed maintenance period had elapsed, the works had not been completed because of unavailability of funds and this situation had persisted up till the time of inspection in November 2019.
Auditor General says arrangements should have been made in time for funds to be available to complete these relatively minor works even before the works commenced.
Various contractors had been engaged for clearing the bush and for the supply of concrete stones, pit and river sand and hiring equipment for digging the trench towards the construction of an auto mechanics workshop, the report said.
It stated that the cost of services and supplies provided totalled P117 949.80. However, despite the services and the supplies having been paid for, the construction works had not commenced for a long period afterwards, resulting in the trench filling back in.
The audit inquiries had not elicited satisfactory responses as both the institution and the Ministry had not accepted the responsibility for the project, although orders for the provision for the supplies had been made. For their part, the Ministry had stated that they had sub warranted funds for the purchase of porta cabins.
Letebele indicated that it is therefore confusing that a project which is critical to the functioning of an institution such as this one would commence without a well-defined plan.
Furthermore, the accounting and maintenance of records for the supplies items were not of the standard prescribed by the Supplies Regulations and Procedures in that the supplies ledger cards, the main accounting records for Government assets, were not properly maintained for the recording of receipts and issues.
This had resulted in significant discrepancies between physical and ledger balances, while in other instances the supplies items had not been recorded at all.
The report says 24 of the 91 new computers found in the computer laboratory at Kumakwane ABC campus were not recorded anywhere, as were the other computers in the storeroom which could not be counted due to the disorderly storage conditions.
The institution had entered into a contract agreement with a security company for the provision of security services at Tshwaragano Brigade, ABC and Horticulture campuses at Kumakwane for a 2-year period which ended in June 2018, WeekendPost learnt.
After the contract expired in June 2018, an extension was granted till the 30th September 2018. Since then, there has been no security service coverage for the institution to-date. According to Auditor General, in the face of prevailing crimes, it is of paramount importance that government properties be protected by provision of security services at all times.
At Tlokweng Brigade, it was noted that the kitchen staff were working under difficult conditions as the kitchen facilities and equipment, such as the cold room, tilting pot, food warmers and solar power for hot water were dysfunctional. The kitchen roof was leaking and men’s restrooms was not working. All these need to be brought to a reasonable and functional state of repair.
The kitchen staff should use a purpose-designed Rations Ledger for the recording of receipts and issues of foodstuffs to reflect the usage of those items. As far back as 2014 the Department of Buildings and Engineering Services had found that the house occupied by the bursar was uninhabitable on account of structural defects, the report said.
A site visit during the audit had established that the house was indeed unfit for occupation as there were cracks on the walls, power switches were not working and the roof was leaking. On a sadder note, there were a number of finished items of clothing, such as dresses, shirts, and jackets from students’ practical exercises from the Fashion Design Textiles Workshop.
Auditor General shared her take on this, saying: “I have not been able to ascertain the policy on the disposal of products from these practicals. A trace of 103 green acid-proof overalls which had been purchased in August 2018 had indicated that there was no record of these items having been recorded or issued, nor were they available in stock. I was not able to obtain any explanation for this situation.”
Kgatleng brigade was also audited and inspected by Auditor General who observed that the brigade has 26 institutional houses at Bokaa, both old campus and new campus. Some of these houses are very old and dilapidated, with two declared uninhabitable. The condition of the houses is a clear indication of lack of care and maintenance of these properties.
At the time of the audit, there was no contractor engaged for the provision of security guard services at the new campus, after expiry of the previous one in July 2019. It is hoped that steps would be taken to safeguard the security of the premises and government properties against any acts of hooliganism.
In August 2019, there was a break-in at the electrical and at the plumbing maintenance workshops and a number of high value items, such as drilling machines, bolt cutters, spanners and cables, were stolen. The break-in and theft were reported to the police.
“However, at the time of writing this report I was not aware of the outcome of the police investigation, nor of any loss report submitted in terms of the Supplies Regulations and Procedures,” Letebele said.