Acting High Court Judge Justice Godfrey Radijeng has this week ordered that the case in which Botswana Federation of Public, Private and Parastatal Sectors Union (BOFEPPPUSU) wanted court to instruct government to come back to the salary negotiation talks as “not urgent.”
Government parties at the Public Service Bargaining Council (PSBC) have refused to continue with the salary talks’ weeks after commencement in October. They were citing a pending court case filed by BOFEPPPUSU at the High Court before Justice Tshepo Motswagole – that will determine and make a ruling once and for all on the “scope of the Bargaining Council” that is currently under dispute.
When making a judgement this week in Lobatse High Court Justice Radijeng stated briefly that the case is “not urgent” and he did not go into the merits.
Speaking to Weekend Post shortly after the case, BOFEPPPUSU, Secretary General Tobokani Rari also confirmed that “the outcome of the court case is that the judge has indicated that the case is not urgent and the issue of the scope is left to be determined by Justice Motswagole in February 10, 2017.”
“We are really disappointed by the outcome. Our view is that the court has really misdirected itself in finding that this case is not urgent. Remember that this is the very case that the Industrial Court found to be urgent because they were basis of urgency of the case in the fact that there is still a salary negotiation pending,” Rari continued.
He said at the Industrial Court when Botswana Public Employees Union (BOPEU) questioned the legitimacy of BOFEPPPUSU the court agreed that the matter is urgent taking into consideration the aspect that the 2016/17 salary talks were and are still pending.
The same case, he added that went to Court of Appeal and the superior court still agreed that the issue is urgent looking into the fact that the 2016/17 wage negotiation were and are still incomplete. “Now it is surprising that a similar case affecting the same salary talks which are still undecided found that there is no urgency on the matter,” Rari complained.
He insisted that: “so we feel that it is unfortunate and disappointing that at the end of the day, court could not determine that this matter is urgent because the matter in our view is holding the awarding on increment of more than 75 000 employees in this Republic.”
It really baffles one’s mind and disappoints that court could arrive at such a decision in a matter that is so grave that affects more than 75 000 public servants who have not got their increment, the BOFEPPPUSU SG maintained.
We have said this several times, he pointed out that now what they have is two sets of public servants in the public service; that is, those that got the 3% and those that did not get the increase.
According to Rari, this is causing a lot of acrimony in the public service so they thought that cause could also determine that the matter have to be treated urgently. He explained that there is a lot of hostility in the public service between government employees themselves; that is, those awarded the 3% and those that did not get it.
“It is also affecting very much the moral of the public service. So like am saying we are really disappointed that the court had arrived at such decision.”The BOFEPPPUSU leader further told this publication that they will weigh options going forward in which they may resort to moving to want to ask Justice Motswagole to expedite the hearing of the case on the scope.
That includes, he said maybe petitioning him to reconsider the date of the hearing which is next year February so that it gets to be done expeditiously to assist them in resolving the case of “scope.” The other option Rari said might also be that, depending on what they will also be advised by their lawyers, they may have to appeal the outcome of the “urgency case” and ask for a leave to appeal the matter.
The union federation leadership will deliberate on the matter this week and thereafter meet their attorney Mboki Chilisa of Collins Chilisa Consultants who will also advise them on the way forward following their defeat.
According to Rari, they will also be writing and appealing to members to realise that they are in a struggle – fighting to preserve a principle and fighting “a coordinated and organised system.”
“We will notify our members that they should not despair. We are not just fighting for the 3% but they should realise that we are fighting for the bigger principle which is to protect the Bargaining Council and the Bargaining process in this country,” the unionist highlighted.
Rari has maintained to Weekend Post that “our strong view is that we cannot let the Bargaining Council be eroded but we should fight and if it means forfeiting the 3% for the purposes of protecting the Bargaining principle and the Bargaining power in this country let it be.”
He said that is why they approached lawyers with the intention to instruct government to come back to the negotiation table because their conduct of refusing to continue on the basis that the federation union has a case at High Court is “an unreasonable conduct.”
When narrating the event that has led to the court case, Rari said they initially started with a verification process as triggered by the court, which found that Manual Workers have got the numbers to sit in the PSBC.
“Therefore that the union being part of BOFEPPPUSU can now get into the Public Service bargaining Council and start negotiating so we then went to back to the Bargaining Council with the intention to negotiate.”
He said the government then indeed brought in the counter proposal of 3% to the Bargaining Council but they wanted to stick to the amount – which by then they have already implemented. Then before they could start negotiating they needed to come up with the rules of engagement and so the process of negotiations did not start yet.
“But it’s normal that before you start negotiating you have to start talking about the rules of engagement. So when we were talking about the rules of engagement they raised the issue of “who are we negotiating for” as BOFEPPPUSU.”
In other words they were saying what the scope of our negotiations is, Rari said adding that we then indicated to them that the scope of our negotiations is our members – that is we are negotiating for members of those unions only.
The members include Botswana Teachers Union (BTU), Botswana Sectors of Educators Trade Union (BOSETU), Botswana Land Board & Local Authorities & Health Workers Union (BLLAHWU), National Amalgamated Central, Local & Parastatal Manual Workers' Union (NACLPMWU).
According to the BOFEPPPUSU SG, the reason why they were saying that is because the Industrial Court Judgement has then ordered that the members of the applicants (BOFEPPPUSU) are not going to be given a 3% but instead will be allocated to the non-members of BOFEPPPUSU and the non-unionised.
So we then stuck to what the Industrial Court has ruled particularly where they were stating that the members of the union Federation are not supposed to get the 3% salary increment and even to this day they have not received, he justified.
He said while still there, the Industrial Court has also asserted that BOFEPPPUSU has a good case about the scope of the Bargaining Council that is before Justice Tshepo Motswagole.
“It is at this point that the government parties at the PSBC stated that they find it difficult to proceed with the negotiations because we have an issue of the scope of the PSBC in court before Judge Motswagole and that is true.”
But what happened is that, he explained that when the Industrial Court gave its judgement it pointed out that the scope of the PSBC is only limited to those employees whose unions are in the Council. He admits that still by then they felt that the Industrial Court in fact has misdirected itself but as it was interdict, “we couldn’t appeal it.”
What we could only do was to register a fresh case so that deal finally with the issue of scope currently before Justice Motswagole, he asserted. If we could stay with that Industrial Court Judgement, the unionist highlighted its implications.
“It meant that every year when we negotiate at the PSBC and for instance let us say BOPEU would still not be in the PSBC, it would mean that every year when we are in the process of negotiating, government may continue to make unilateral increments and that would only apply for BOPEU members and the non-unionised.”
He continued to state that therefore it would also mean that every year the Bargaining Council would become useless because they would continuously do so. “That is why the judgement of the Industrial Court meant – in essence.”
He recounted that they then thought that they can’t live with the judgement because it will render the PSBC powerless and useless. “So we then approached the court and registered a new case in which case we wanted the High Court to finally determine what the Public Service Act and the constitution of PSBC say about the scope of the PSBC, he said.
In our interpretation both guiding documents are very clear that there shall be a PSBC responsible for conditions of the “public service.” He added that to BOFEPPPUSU it meant that the PSBC can determine terms and conditions for “all the public servants” except those non-unionised members like the Botswana Defence Force (BDF), Botswana Police Service (BPS), Directorate on Corruption and Economic Crime (DCEC) and others stated in that category.
Rari emphasised categorically that as BOFEPPPUSU they want the outcome of the negotiations of the PSBC to affect the whole of the Public Service. The government has insisted that owing to the case before Justice Motswagole, they felt that they cannot continue with the salary negotiations. Then they maintained that its either BOFEPPPUSU withdraw the case at court or they do not continue with the salary negotiations.
The federation SG said this became difficult for them to withdraw the case because of what they felt the case means for them and therefore told the government party that they cannot withdraw the case and agreed that they disagree.
“After we agreed to disagree we then approached lawyers to say that we intend to instruct government to come back on the negotiation table because their conduct of refusing to continue on the basis that we have a case at High Court is an unreasonable conduct.”
According to Rari, the reasons that we were advanced was to determine who exactly does the outcome of the Bargaining Council affects. “The thing is when you are admitted in the Council you can make a resolution of any form if parties agree. So there was no reason for them to talk about the matter of scope before court as the Council itself can still make a resolution and that’s what we consistently said.”
The issue of scope guides on the parameters of the Bargaining Council and the court case impending before Justice Motswagole is just for theoretical definition so that it is known – the latitude of the PSBC.
Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.
Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.
She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”
Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.
On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.
“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.
One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.
The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”
The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.
Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.
Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.
The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.
The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.
Standard Chartered Bank Botswana (SCBB) has informed the government that it will not be accepting new loan applications for the Government Employees Motor Vehicle and Residential Property Advance Scheme (GEMVAS and LAMVAS) facility.
This emerges in a correspondence between Acting Permanent Secretary in the Ministry of Finance Boniface Mphetlhe and some government departments. In a letter he wrote recently to government departments informing them of the decision, Mphetlhe indicated that the Ministry received a request from the Bank to consider reviewing GEMVAS and LAMVAS agreement.
He said: “In summary SCBB requested the following; Government should consider reviewing GEMVAS and LAMVAS interest rate from prime plus 0.5% to prime plus 2%.” The Bank indicated that the review should be both for existing GEMVAS and LAMVAS clients and potential customers going forward.
Mphetlhe said the Bank informed the Ministry that the current GEMVAS and LAMVAS interest rate structure results into them making losses, “as the cost of loa disbursements is higher that their end collections.”
He said it also requested that the loan tenure for the residential property loans to be increased from 20 to 25 years and the loan tenure for new motor vehicles loans to be increased from 60 months to 72 months.
Mphetlhe indicated that the Bank’s request has been duly forwarded to the Directorate of Public Service Management for consideration, since GEMVAS and LAMVAS is a Condition of Service Scheme. He saidthe Bank did also inform the Ministry that if the matter is not resolved by the 6th June, 2022, they would cease receipt of new GEMVAS and LAMVAS loan applications.
“A follow up virtual meeting was held to discuss their resolution and SCB did confirm that they will not be accepting any new loans from GEMVAS and LAMVAS. The decision includes top-up advances,” said Mphetlhe. He advised civil servants to consider applying for loans from other banks.
In a letter addressed to the Ministry, SCBB Chief Executive Officer Mpho Masupe informed theministry that, “Reference is made to your letter dated 18th March 2022 wherein the Ministry had indicated that feedback to our proposal on the above subject is being sought.”
In thesame letter dated 10 May 2022, Masupe stated that the Bank was requesting for an update on the Ministry’s engagements with the relevant stakeholder (Directorate of Public Service Management) and provide an indicative timeline for conclusion.
He said the “SCBB informs the Ministry of its intention to cease issuance of new loans to applicants from 6th June 2022 in absence of any feedback on the matter and closure of the discussions between the two parties.” Previously, Masupe had also had requested the Ministry to consider a review of clause 3 of the agreement which speaks to the interest rate charged on the facilities.
Masupe indicated in the letter dated 21 December 2021 that although all the Banks in the market had signed a similar agreement, subject to amendments that each may have requested. “We would like to suggest that our review be considered individually as opposed to being an industry position as we are cognisant of the requirements of section 25 of the Competition Act of 2018 which discourages fixing of pricing set for consumers,” he said.
He added that,“In this way,clients would still have the opportunity to shop around for more favourable pricing and the other Banks, may if they wish to, similarly, individually approach your office for a review of their pricing to the extent that they deem suitable for their respective organisations.”
Masupe also stated that: “On the issue of our request for the revision of the Interest Rate, we kindly request for an increase from the current rate of prime plus 0.5% to prime plus 2%, with no other increases during the loan period.” The Bank CEO said the rationale for the request to review pricing is due to the current construct of the GEMVAS scheme which is currently structured in a way that is resulting in the Bank making a loss.
“The greater part of the GEMVAS portfolio is the mortgage boo which constitutes 40% of the Bank’s total mortgage portfolio,” said Masupe. He saidthe losses that the Bank is incurring are as a result of the legacy pricing of prime plus 0% as the 1995 agreement which a slight increase in the August 2018 agreement to prime plus 0.5%.
“With this pricing, the GEMVAS portfolio has not been profitable to the Bank, causing distress and impeding its ability to continue to support government employees to buy houses and cars. The portfolio is currently priced at 5.25%,” he said. Masupe said the performance of both the GEMVAS home loan and auto loan portfolios in terms of profitability have become unsustainable for the Bank.
Healso said, when the agreement was signed in August 2018, the prime lending rate was 6.75% which made the pricing in effect at the time sufficient from a profitable perspective. “It has since dropped by a total 1.5%. The funds that are loaned to customers are sourced at a high rate, which now leaves the Bank with marginal profits on the portfolio before factoring in other operational expenses associated with administration of the scheme and after sales care of the portfolio,” said the CEO.