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BOFEPUSU appeals Industrial Court ruling

Botswana Federation of Public Sector Unions (BOFEPUSU) has decided to appeal the Industrial Court decision that pushed the Federation out of the Public Service Bargaining Council (PSBC). The Federation has already filed the appeal paper with the Court of Appeal.

The decision by the Federation follows a ruling by the Industrial Court Judge President Justice Tebogo Maruping this week confirming the interim interdict that he issued on 22nd February 2016 to be a final court ruling.

The confirmed interim interdict which is now a final court ruling provides that, The PSBC verification report that confirmed that BOFEPUSU meets the threshold and as such should continue being admitted into the PSBC is set aside; BOFEPUSU is not entitled to be admitted into the Public Service Bargaining Council; Only trade unions recognized by the government of Botswana on its capacity as the employer, are entitled to be admitted into the Public Service Bargaining Council; and that – For the purposes of verification of whether or not a trade union party should continue to be admitted, the PSBC should take into consideration the individual membership figures of each union rather than as a collective.

BOFEPUSU Secretary General, Tobokani Rari said BOFEPUSU and the four affiliate unions carefully considered the judgement with a view of mapping a way forward. “In doing so particular attention was given to the fact that they are two available options, of either resorting to the mediation process as suggested by the court at paragraph 55 (8) or exercising our right to appeal,” he wrote in a statement.  

Rari said a decision was arrived as there are some fundamental points of law and facts that the court overlooked and as such BOFEPUSU and the four affiliates would appeal the judgement. “Our view is that such misdirections are so grave that they cannot be left to pass without being challenged at the court of appeal.”

The BOFEPUSU Secretary General said the appeal papers have already been signed to be filed before the Court of Appeal.  “We therefore appeal to affiliate unions, their general membership and public service in general to exercise patience and restraint as the case would be proceeding to the Court of Appeal,” said Rari.

HOW THE INDUSTRIAL COURT REASONED

The industrial Court ruling on Wednesday yanked BOFEPUSU out of the Public Sector Bargaining Council (PSBC) in a case where the Botswana Public Employees Union (BOPEU) had sought the court to bar BOFEPUSU as a federation from PSBC.

Judge President of the Industrial Court, Tebogo Maruping ruled that only trade unions which are recognised by the government in its capacity as the employer are entitled to be admitted into the membership of the PSBC.

He also continued that, for purposes of verification of whether or not the trade union party to the PSBC should continue to be admitted, PSBC shall take into consideration the individual membership figures of trade unions that make up BOFEPUSU but not as a collective.

Judge President Maruping also said that, “the dispute has given the court a lot of anxiety, the primary reason being that there is a great deal at stake for both parties.”

He added that, “in the eyes of the court there is even a greater deal at stake for the many public officers who are looking forward to being represented in the salary and conditions of service for 2016/2017 and the court appreciates the fact that time is obviously of essence.”

Judge President Maruping also directed the disputing unions and all labour unions that represent public officers to meet with Directorate of Public Service Management (DPSM) to amend the constitution of PSBC.

He thus interdicted PSBC from proceeding with the 2016/2017 salary and conditions of service negotiations pending the outcome of the mediation of this dispute by the Commissioner of labour within 30 days.

Maruping also said that the court is aware that as the matters stand, if the PSBC were to move forward it will only have one union, National Amalgamated Local Government, Parastatal and Manual Workers Union, as the trade union party, “which is unacceptable.”

He also continued to say that the court is also aware that time has probably run against PSBC as far as negotiations of the 2016/2017 salary negotiations and conditions of service are concerned but it is a matter that the court will leave for resolution by the trade unions and their employer.

Maruping also observed that while BOFEPUSU is cited fifth in the court papers, according to the labour unions making up the federation, BOFEPUSU was an ‘Acting Jointly Arrangement’ or ‘AJA’ which was admitted as the trade union party into Bargaining Council.

He continues that, according to the unions in the federation, it was that ‘AJA’ which went by the name BOFEPUSU and not the federation cited in the court papers before observing that, “curiously if that is correct it would mean that BOFEPUSU ‘AJA’ is not cited as in court proceedings… the question that immediately comes to mind is whether this BOFEPUSU ‘AJA’ has a separate legal existence from the unions under which it exists in the same way that the federation has.”

Judge President Maruping then concludes that, “probably not because as has been emphasized during the hearing of this dispute it is just a label."

He also said that the current constitution of the PSBC which would allow a trade union with 10 000 members to represent its workers in the PSBC while one with 26000 members does not, is not a sensible approach and does not give the best effect to the apparent purpose of all the parties who have agreed to terms of PSBC constitution.

He also said that in view of the court the trade unions at first had options that would have avoided the current quagmire such as making specific provision for qualification for admission such as preferring absolute numbers such as 5,000, 10,000 or 15,000 as opposed to fractions or the one third of the membership of all recognised trade unions whose members are public officers.

Judge President Maruping also said that as figures stand at the moment it is only the Manual Workers Union which qualifies for admission into PSBC at 30,812 members against a threshold of 28,780. He also continued to say that the court is not convinced that BOPEU does not have direct interest in the case as it is the next largest union and has shown interest in continuing to be a member of the PSBC. He however noted that its application for an ‘acting jointly arrangement’ with unions which does not qualify numerically seems to cast doubt on its own position on the matter.

He also said that the court has come to the conclusion that this is a dispute which requires the parties to look at the bigger picture and to decide what is best for themselves and their members saying that the parties may wish to benchmark on what is considered to be best international practice in such situations.

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Gov’t shy to shame failing ministers

22nd February 2021
Morwaeng

Minister of Presidential Affairs, Governance and Public Administration, Kabo Morwaeng together with Permanent Secretary to the President (PSP) Elias Magosi, this week refused to name and shame the worst performing Ministries and to disclose the best performing Ministries since beginning of 12th parliament including the main reasons for underperformance.

Of late there have been a litany of complaints from both ends of the aisle with cabinet members accused of providing parliament with unsatisfactory responses to the questions posed. In fact for some Botswana Democratic Party (BDP) backbenchers a meeting with the ministers and party leadership is overdue to address their complaints. Jwaneng-Mabutsane MP, Mephato Reatile is also not happy with ministers’ performance.

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Bokamoso, Gov’t in P10M womb removal suit

22nd February 2021
Bokamoso

Bokamoso Private Hospital is battling a P10 million legal suit for a botched fibroids operation which resulted in a woman losing an entire womb and her prospects of bearing children left at zero.

The same suit has also befallen the Attorney General of Botswana who is representing the Ministry of Health and Wellness for their contributory negligence of having the unlawful removal of a patient, Goitsemang Magetse’s womb.

According to the court papers, Magetse says that sometimes in November 2019, she was diagnosed with fibroids at Marina Hospital where upon she was referred to Bokamoso Private Hospital to schedule an appointment for an operation to remove the fibroids, which she did.

Magetse continues that at the instance of one Dr Li Wang, the surgeon who performed the operation, and unknown to her, an operation to remove her whole womb was conducted instead.
According to Magetse, it was only through a Marina Hospital regular check-up that she got to learn that her whole womb has been removed.

“At the while she was under the belief that only her fibroids have been removed. By doing so, the hospital has subjected itself to some serious delictual liability in that it performed a serious and life changing operation on patient who was under the belief that she was doing a completely different operation altogether. It thus came as a shock when our client learnt that her womb had been removed, without her consent,” said Magetse’s legal representatives, Kanjabanga and Associates in their summons.

The letter further says, “this is an infringement of our client‘s rights and this infringement has dire consequences on her to the extent that she can never bear children again”. ‘It is our instruction therefore, to claim as we hereby do, damages in the sum of BWP 10,000,000 (ten million Pula) for unlawful removal of client’s womb,” reads Kanjabanga Attorneys’ papers. The defendants are yet to respond to the plaintiff’s papers.

What are fibroids?

Fibroids are tumors made of smooth muscle cells and fibrous connective tissue. They develop in the uterus. It is estimated that 70 to 80 percent of women will develop fibroids in their lifetime — however, not everyone will develop symptoms or require treatment.

The most important characteristic of fibroids is that they’re almost always benign, or noncancerous. That said, some fibroids begin as cancer — but benign fibroids can’t become cancer. Cancerous fibroids are very rare. Because of this fact, it’s reasonable for women without symptoms to opt for observation rather than treatment.

Studies show that fibroids grow at different rates, even when a woman has more than one. They can range from the size of a pea to (occasionally) the size of a watermelon. Even if fibroids grow that large, we offer timely and effective treatment to provide relief.

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Masisi warned against a sinking Botswana

22nd February 2021
Ndaba GAolatlhe

The Alliance for Progressives (AP) President Ndaba Gaolathe has said that despite major accolades that Botswana continues to receive internationally with regard to the state of economy, the prospects for the future are imperilled.

Delivering his party Annual Policy Statement on Thursday, Gaolathe indicated that Botswana is in a state of do or die, and that the country’s economy is on a sick bed. With a major concern for poverty, Gaolathe pointed out that almost half of Botswana’s people are ravaged by or are about to sink into poverty.  “Our young people have lost the fire to dream about what they could become,” he said.

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