The President of the court of appeal, Ian Kirby and the Attorney general on Friday this week refused to be drawn into discussing the President’s prerogative rights in court during a case that involves the President and the Botswana Federation of Public Service Unions (BOFEPUSU).
Kirby has further revealed that the judgement on the matter may be delayed as he could not tell whether it would be ready when other judgments of the January court of appeal session are delivered on February 5th.
Kirby was leading a panel of three judges in a matter in which BOFEPUSU is challenging the High Court order that turned down their urgent application matter regarding President Ian Khama’s decision to announce Public Service salary increment during last year’s salary negotiation process.
BOFEPUSU’s attorney, advocate Alec Freunt of South Africa wanted the court to make a pronouncement on the powers of the President in regards to Public service salary and conditions of service adjustments. Responding to that, Kirby said he would need a panel of five judges to do so as the matter touches on the President’s prerogative powers and the constitution.
Meanwhile the Attorney general, represented by David Moloise refused to go into the merits of the case and argued that, he was only ready to contend against the appeal that was before the court, that is, the urgency matter. However in his filed heads of argument, Moloise suggests that the President had the power to announce the four percent salary increment in March, 2014 during a kgotla meeting because the National Bargaining Council had not yet begun negotiations yet and that the rules governing the negotiations had also not been signed.
At the time of the pronouncement which was effected in April, 2014 there was a dispute over certain procedures and the Bargaining Council had reached a stale mate and called for a few weeks of breathing period.
However according to the State lawyer, the President considered that negotiations could go for a long time or stretch to another year and the civil service were burdened by inflation and could suffer as a result.
Moloise further suggested that the President being the head of state not only had the burden of running the nation but as a matter of “Public Policy”, had to perform a duty to act in the public interest as it was necessary.
But the Union contended that by so doing the President breached the government’s duty of bargaining in good faith and more so that when the pronouncement was made it was made clear that the salary increment would not go beyond the four percent due to budgetary constraints.
Nonetheless, Moloise would contend that there is no actual proof that the statements would have in any way influenced the process as the union had the onus of putting their argument and convincing the bargaining Council that they have a case for the result they seek.
He further mentioned in his filed document that the President is covered by law to act in the manner that he did.
According to Moloise, the council and more particular the Procedures for Meetings and Negotiations are not legally binding on the President especially when read with section 12 of the Public Service Act and therefore Section 12 of the Public Service Act provides that “The exercise of any powers or the performance of any duties under this act shall be subjected to the general discretion of the President as the President may consider necessary.”
In the absence of anything that suggests a deviation from the discretionary power of the said section, the state believes that it should be therefore viewed as un-surped and its discretion superior and unfettered. The Attorney General therefore requested that in interpreting the law, judges must not “usurp Parliamentary legislation functions.”
The constitution divides the state in to three wheels of power, the executive, legislature and the judiciary. The legislature’s main function is to enact laws whist the primary duty of the executive is to take charge of the conduct of the state of affairs and the judiciary adjudicates on disputes that may arise and to have a final word on the interpretation of the law.
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.
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.
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.