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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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Free at last: Ian Kirby Speaks Out

6th December 2021
Justice Ian Kirby

The outgoing President of the Court of Appeal, Justice Ian Kirby, shares his thoughts with us as he leaves the Bench at the end of this year.

WeekendPost: Why did you move between the Attorney General and the Bench?

Ian Kirby: I was a member of the Attorney General’s Chambers three times- first in 1969 as Assistant State Counsel, then in 1990 as Deputy Attorney General (Civil), and finally in 2004 as Attorney General. I was invited in 2000 by the late Chief Justice Julian Nganunu to join the Bench. I was persuaded by former President Festus Mogae to be his Attorney General in 2004 as, he said, it was my duty to do so to serve the nation. I returned to the Judiciary as soon as I could – in May 2006, when there was a vacancy on the High Court Bench.

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Civil society could rescue Botswana’s flawed democracy’ 

6th December 2021
Parliament

Botswana’s civil society is one of the non-state actors that could save the country’s democracy from sliding into regression, a Germany based think tank has revealed.  This is according to a discussion paper by researchers at the German Development Institute who analysed the effects of e-government usage on political attitudes In Botswana.

In the paper titled “E-government and democracy in Botswana: Observational and experimental evidence on the effects of e-government usage on political attitudes,” the researchers offer a strongly worded commentary on Botswana’s ‘flawed democracy.’  The authors noted that with Botswana’s Parliament structurally – and in practice – feeble, the potential for checks and balances on executive power rests with the judiciary.

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Bangwato at loggerheads over Moshupa trip

6th December 2021

Bangwato in Serowe — where Bamagwato Paramount Chief and former President Lt. Gen Ian Khama originates – disagree on whether they must send a delegation to dialogue with President Mokgweetsi Masisi’s family in Moshupa. Just last week, a meeting was called by the Regent of Bamagwato, Kgosi Sediegeng Kgamane, at Serowe Kgotla to, among others, update the tribe on the whereabouts of their Kgosi (Khama). 

Further, his state of health was also discussed, with Kgamane telling the attendees that all is well with Khama. The main reason for the meeting was to deliberate on the escalating tension between Khama and Masisi — a three-year bloodletting going unabated.

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