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BOPEU wins stay of execution appeal case

Botswana Public Employees Union (BOPEU) has won an appeal case at the superior court in which they wanted the Court of Appeal to suspend the implementation of the judgement of High Court by Justice Tshepo Motswagole.

Motswagole had basically ruled that the Public Service Bargaining Council (PSBC) has the sole powers to negotiate and effects salary increments on behalf of all public servants as opposed to government’s unilateralism on the matter. This was after government increased salaries of public servants unilaterally on 30 March 2016 by 3% as well as on April 2017 by 4% outside the auspices of the Bargaining Council.  

When making judgement, this week the Judge presiding ‘alone’ on the CoA bench Justice Monametsi Gaongalelwe ordered that the application for staying the order granted by the High Court on 4th April 2017 “succeeds.” “The operation of the said order hereby stayed pending appeal,” Monametsi added.

According to the CoA Judge when justifying his conclusion he pointed out that “in the circumstances of this case it is my considered view that the prejudice to be suffered by the respondents (BOFEPUSU) if stay is granted is far outweighed by the prejudice and inconvenience to be suffered by applicants (BOPEU and government) if execution of the order of 4th April 2017 is carried out pending appeal.”

He further ruled that the Rule Nisi granted on 6th April 2017 falls away on the basis that the principal order being stayed there would be nothing to operate immediately. In addition, the Judge ordered that in regard to the Rule 11 application the Registrar is hereby directed to list the appeal for hearing during the October 2017 session.

Above all, he later ordered BOFEPUSU to pay the costs. “The first, second, third, fourth and fifth (BOFEPUSU) shall bear the costs of the application jointly and severally one paying the others to be absolved. Such costs to include costs of Counsel.” In justifying the ruling, Monametsi said Dutch Leburu who stood in for BOPEU, has submitted that the matter concerns about 29 000 employees of BOPEU who have enjoyed the increment for about 12 months which is now suddenly cut off.

“Applicants contend that they have been receiving the 3% salary increment since 2016. They assert that they have enjoyed the benefit for a period of about 12 months or so. Their assertion is that on that basis they have made some financial commitments on account of the increment,” the Judge highlighted. As a result of this, he pointed out in the judgement that they say some of them have obtained loans based on the increased salaries and that with the deduction they will not manage to service such loans.

He continued: “it is further contended that some employees qualified for medical aid schemes because of the increase and will find it hard to cope. They have generally been accustomed to living with enhanced salaries and are saying the sudden decrease will cause irreparable hardships.” BOPEU and government assert further that, Monametsi said that, if the stay of execution is ordered BOFEPUSU would not suffer any prejudice at all as they would go on with their regular salaries.  

In fact he said, BOFEPUSU’s Counsel has quite frankly conceded that if stay was to be ordered the union Federation would suffer no prejudice. He however, he added, that they would suffer prejudice in the sense that they are law abiding employees and cannot manage to live with a blatant violation of the constitution of the Bargaining Council. Why Gaongalelwe didn’t recuse himself in the case

In the same judgement, Justice Monametsi explained why he could not recuse himself in the first instance as requested by Advocate Duma Boko who was arguing on behalf of BOFEPUSU. Boko said Justice Gaongalelwe was likely to be biased as he too was directly affected by High Court Judge Justice Abednigo Tafa who ruled that the appointment of Justices cited as respondents in the case was unconstitutional.

“The factors canvassed constitute reasons for the dismissal of the recusal application. The bottom line is that the grounds advanced for the complaint were all flimsy and unfounded,” Gaongalelwe said when he also dismissed the recusal application by Boko.   
Another Appeal on the scope of Bargaining Council in October

In light of the appeal in principle of Motswagole judgement, Gaongalelwe said the Registraar is directed to list the appeal for hearing during the October 2017 session. Additionally, in his stay of execution judgement, the CoA Judge stated that in terms of prospects of success on appeal, the standards is not to be put higher than showing that in the circumstances of a particular case there would be a reasonably arguable appeal. “Applicants (BOPEU and government) have in their papers made reference to a number of pieces of legislation which would have to be interpreted and unravelled at the appeal stage.”

At this stage, he pointed out that is sufficient for the purpose of demonstrating that the appeal would be a reasonably arguable one. He added: “my view is that for the purposes of a proper determination at this stage the court does not have to delve any further into the issue since such will be the task of the court that will hear the appeal.” The triumph by BOPEU and government on the stay of execution case by Justice Gaongalelwe may be viewed by certain interested parties as an endorsement of the unilateral salary increment by government.

This means that following Motswagole judgement, 3% and 4% shall remain credited unlawfully to a section of the public service including non BOFEPUSU and non-unionised members. However the case appealing Motswagole judgement in terms of “scope of Bargaining Council” will be heared by a full bench of the CoA bench later in October as BOPEU has also appealed the matter. Meanwhile In the matter the appellants of stay of execution; government was represented by Advocate Timothy Bruiners and Joseph Balosang Akoonyatse while Dutch Leburu and Martin Dingake represented BOPEU. Advocated Duma Boko and Mpho Garebatho stood in defense of BOFEPUSU.

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DPP halts JSC, Judge’s back to work plan

25th January 2021

The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.

JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.

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BDP rejects Saleshando payment proposal

25th January 2021
MP saleshando

Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.

This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.

“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.

This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.

“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.

UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.

In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.

This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.

Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”

Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”

UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.

Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.

“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview
UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.

The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.

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Boko-Khama axis viewed with suspicion

25th January 2021

President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.

While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.

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