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BOFEPUSU cases sent back to High Court


Justice Lot Moroka of the Lobatse High court has been ordered by the court of Appeal to issue a fresh and appropriate order on a case that was previously before him.


On Thursday this week, the court of Appeal in Gaborone set aside the judgment on a case regarding the withdrawal of the secondment of Secretary Generals of some Public Service Unions by the Directorate of Public Service Management (DPSM) which was ruled in favour of the unions in 2013.


The court is of the view that when making the ruling, Moroka formulated his own case from the evidence then proceeded to give judgement based on his opinion contrary to the case before him.


“…the Judge had in his decision made a case which was not the argued between the parties and granted final judgment not sought and or remedies which were incompetent even under the rubric of “further and or alternative relief.” Justice Isaac Lesetedi together with Judge President, Ian Kirby and Justice Moemedi Gaongalelwe ruled in consent.


Moroka had ruled in favour of the unions in a case in which the Botswana LandBoards, Local Authorities and Health Workers Union (BLLAHWU), Botswana Sector of Educators Union (BOSETU) and Botswana Teacher’s Union (BTU) sued the then Director in the Directorate of Public Service Management (DPSM). Carter Morupisi, for contempt of court after he wrote them letters withdrawing the secondments of their Secretary Generals over alleged political statements they had made.


The unions had asked Moroka to declare that Morupisi’s decision to cancel the secondment was inconsistent with the judgment handed by the court in an earlier case that year and that he should declare that he was in contempt of court. They further sought the court to restrain and interdict him from implementing his decision.

Moroka ruled that the decision to withdraw the seconded officers without affording them an opportunity to make representations was in violation of the agreement between government and the unions and therefore unlawful. Moroka went on to restrain and interdict DPSM or Morupisi from implementing the withdrawal of seconded officers.


The court of Appeal however found this decision glaringly patent when viewing what the unions sought and what the Judge granted. To the bench Moroka did not determine the dispute that was brought before the court but rather made the ruling based on finding of judicial review which they said is a different species of legal proceeding with its own type of remedies.


 “This is such a fundamental and patently incompetent decision that this Court cannot allow it to be viewed as a competent but possibly erroneous judgment. It cannot stand on its own as it has no base of foundation,” Lesetedi led the bench.


The only order which he admitted was consistent with both the relief sought and granted was the interdict order, but said the order was not sought as a stand-alone remedy but in fact initially of an interim nature and dependent on the contempt remedy sought.


“If for instance, there was no finding that the Director was in contempt of court, the interdict order would not on its own stand. The same applies to a finding of unlawfulness on the ground of breach of the audi alteram parten rule,” Lesetedi added.


The appropriate order in the circumstances according to the bench was to have the matter remitted back to Moroka to deal with the issues properly before him if those issues are extant or refuse to grant the rule sought if it is no longer extant so as to put the matter to rest.


Meanwhile a case involving the State President, Lt Gen Ian Khama Seretse Khama and the Botswana Federation of Public Service Unions (BOFEPUSU) was also remitted to the High Court for proper hearing.

This was after the Court of Appeal concluded that the matter about the legality of President Khama announcing a salary increment for the Public Service without the agreement of the National Bargaining Council was not an urgent matter.

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