In a classic David and Goliath sequel, Botswana Television (BTV) producer, Koketso Joshua Ntopolelang this week walked out of court a victorious man. Ntopolelang won a Court of Appeal (CoA) bid wherein he sought the court to scupper his ‘dishonest’ election year transfer.
The court set aside his redeployment to the Programs Section and the transfer to the formerly Ministry of Minerals Energy and Water Resources (MMEWR). In January 2014, Ntopolelang was shifted to a less strategic division in BTV after his transfer to MMEWR was foiled by an urgent Industrial Court order.
This redeployment succeeded in extracting him from the News and Current Affairs Section which is primarily responsible for producing current affairs content. In a lead up to the redeployment, he had been apparently told by one Lesole Obonye, a Broadcasting Services Director that he was not trusted enough to head BTV’s News and Current Affairs Section, especially since it was election year (2014).
Ntopolelang’s court papers seen by WeekendPost state that Obonye remarked to Ntopolelang: “Gase gore gare bone bokgoni jwa gago jaaka o bona DPS (Deputy Permanent Secretary) a kgona go go assigner high profile assignments. Re ntse re diilwe ke go bua le bagolo and we were waiting for instructions…kana ke ngwaga wa ditlhopho. Ga se gore gare bone bokgoni jwa gago…ba batla yo ba mo tshephang.” the document reads in part.
Literally translated, Obonye told Ntopolelang that, “It is not that we cannot see your competence, as you can see, the DPS sometimes gives you high profile assignments. The delay was due to discussions with elders and we were waiting for instructions…mind you this is election year. It is not that we don’t acknowledge your competence, but they want somebody they can trust.”
Ntopolelang further noted that Obonye mentioned the phrase ‘ke ngwaga wa ditlhopo (It is election year)’ three times. However, this Thursday Ntopolelang emerged on top in his court skirmish with his bosses. A panel of three CoA Justices comprising Isaac Lesetedi, C Howie and Lord Alistair Abernathy found that Ntopolelang’s employer, being the Secretary in the Ministry of Presidential Affairs, Kebonye Moepeng had not properly consulted him regarding his transfer.
They observed that even though the judge at the previous court determined and held that Ntopolelang’s transfer to MMEWR was preceded by consultation, he had however made no finding in relation to his redeployment to another department within BTV. They further noted that in this particular case there was no material dispute between the parties as to what the law requires in relation to consultations in cases of this kind.
“The dispute was whether in the particular circumstances of this case the legal requirements have been met,” CoA determined. The trio also noted that there was no suggestion by Ntopolelang that the consultation had to take any particular form and that it was accepted that it was for the court to examine the facts and circumstances of the case and determine whether a proper consultation took place.
They highlighted that in consultation, “what follows is not exhaustive and that such consultation is not to be treated perfunctorily or as mere formality. It entails a genuine invitation to the person concerned to say what he wishes to say and a genuine consideration of what he said.”
They further continued: “Sufficient time must be given to enable the person concerned to say what he wishes to say and how to say it.” The judges also determined that sufficient time must then be available to allow the decision maker to consider what has been said and that all this must be done before a decision maker reaches his decision. If his mind is already made up before the consultation process is complete, that is not compatible with a proper consultation.”
The justices further ruled that in regard to the facts of the case it is clear that the legal requirements for a proper consultation were not met either in respect of the decision to transfer Ntopolelang to MMWER or in respect of the decision to redeploy him within the Broadcasting Services.
They also chided that it was not sufficient for Moepeng and Lesole to rely on Ntopolelang to take the initiative in commenting on the stated intention of his superiors to transfer and redeploy him. On the contrary, they stated, it was for them to take initiative and to keep an open mind until the consultation process was complete.
But neither at the meeting on 14 August 2014 nor at the meeting of 10 September 2014 was Ntopolelang given a genuine invitation to comment. Still less was an appropriate timetable set within which he could offer any comments and they could thereafter consider them before coming to a decision.
Indeed from what occurred at the meeting 14 August 2014 and the first Moepeng’s letter of 22 August 2014 it seems to me that she had prior to the meeting of 14 august decided that Ntopolelang was to be transferred to MMWER, the only aspect that remained for discussion was the date the transfer would take place.
They further said that, similarly it seems clear that it had been decided prior to the meeting on 10 September that Ntopolelang was to be redeployed within the Broadcasting services. The very next day, a day before the hearing in the Industrial Court as to whether the interim interdict was to be granted on 5 September 2014 was to be confirmed, Obonye wrote his letter of 11 September.
They further said that even though his redeployment within Broadcasting Services was not illegal, “in my opinion it would be stretching credulity too far to say that it was altogether unconnected with what the Industrial Court might do on 12 September.” Ntopolelang was represented by attorney, Mboki Chilisa of Collins Chilisa Consultants.
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.
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.
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.