Pilate seeks out Judas, Barabbas, and Simon Zelotes for inciting bloody insurrection
With the demise of his all-powerful mentor Aelius Sejanus, Pontius Pilate decided to win and cement the faith of the emperor. Flavius Josephus records that one day the Jews awoke only to find voltive shields – shields which bore an effigy of Tiberius Caesar – set up all over the “Holy City” of Jerusalem. Outraged, they straight off sent a deputation to the governor’s residence in Caesarea to register their disgust. Images of the emperor were considered by Jews to be blasphemous, an affront to the scriptural command to make no “graven images”. They demanded their removal forthwith.
Although Pilate initially refused to budge, he later relented and agreed to meet the protesters at a square in Jerusalem to listen to their petition. Unbeknown to the protesters, they were being lured into a snare as Pilate had stationed troops with concealed weapons around the perimeter. At his signal, the soldiers drew their swords and poised to attack. Pilate then enunciated a warning to the protesters that if they did not at once cease and desist from demonstrating, they would all be slain. If Pilate thought they would immediately cower and retreat, he was grossly mistaken. According to Josephus, the protesters “laid their necks bare, and said they would take their death very willingly, rather than the wisdom of their laws should be transgressed”. For the first time since he took office as governor of Judea, Pilate capitulated to the will of his subjects: he ordered that the shields be removed from Jerusalem and brought back to Caesarea. The injury to his ego must have been enormous but there was no Sejanus to sweep the carnage that would have ensued under the carpet.
There was another such standoff with the Jews that is related by Philo. It also involved shields but this time the shields simply bore an inscription rather than the image of the emperor. The inscription, writes Philo, “mentioned these two facts, the name of the person who had placed them there (Pontius Pilate), and the person in whose honour they were so placed there (Tiberius Caesar).” Once again, when the Jews remonstrated, Pilate cocked a snoop at them. The affair was so potentially tempestuous that this time around, the sons of Herod, led by Antipas, got involved. They told Pilate to his face that if he did not withdraw the shields from the Holy City, they would report him to the emperor and set out before him “his corruption and his acts of insolence, and his rapine, and his habit of insulting people, and his cruelty, and his continual murders of people untried and uncondemned, and his never-ending and gratuitous and most grievous humanity.” Pilate stood his ground nonetheless and the sons of Herod had no choice but to write a letter to Tiberius, who immediately replied, ordering Pilate to remove the shields to Caesarea.
The intervention by Tiberius strained relations between Pilate and Herod Antipas which thawed only after the trial of Jesus (LUKE 23:12). All in all, however, it was a telling lesson to Pilate – that Tiberius was no Sejanus. From this day on, Pilate seemed to have exercised a modicum of caution in his dealings with the Jews, particularly those of Jerusalem. For example, he had in AD 29, 30, and 31 minted coins which bore images with symbols of sacred artifacts used by Roman priests in their pagan religions and which the Jews understandably found offensive. Post-31 AD, no Pilate coin bore any pagan symbols. Be that as it may, Pilate had not exactly mellowed as we shall soon see.
THE BARABBAS INSURRECTION
Sometime in AD 32, Pontius Pilate was at it again in his provocative bunglings against the Jews. He appropriated Temple funds to construct a water carrier to Jerusalem. When the Jews rightfully demonstrated, Pilate responded with heavy-handed reprisals. It seemed this time around, he didn’t care a jot about possible repercussions from Tiberius. In The Jewish Antiquities, Flavius Josephus documents the incident thus: “Pilate undertook to bring a current of water to Jerusalem, and did it with the sacred money, and derived the origin of the stream from the distance of two hundred furlongs (40 km). However, the Jews were not pleased with what had been done about this water.”
Judas Iscariot, who was the underground leader of the Zealots, the Essene military wing, and Theudas Barabbas (the disciple Thaddeus in the gospels, who is also the second Judas on the list) consulted with the then Essene Pope, Simon Zealotes, on the matter. The three Zealot top brass decided a protest should be staged during the forthcoming Feast of Dedication in November AD 32. The “Anti-Pilate Protest” would therefore be the theme of the festival. The Jews were accordingly rallied, with Theudas Barabbas at the head of the protest march, which was dominated by the more belligerent pilgrims from Galilee. “Many ten thousands of the people got together, and made a clamour against him (Pilate), and insisted that he should leave off that design,” relates Josephus. “Some of them also used reproaches, and abused the man, as crowds of such people usually do.”
Pilate, who naturally operated on a very short fuse, felt affronted and dared against. His reflex inclination was to pounce. First, he sounded off a hypocritical warning he well knew would not be heeded. Josephus: “So he habited a great number of his soldiers in their habit, who carried daggers under their garments, and sent them to a place where they might surround them. So he bid the Jews himself go away.” When the Jews stayed put, “boldly casting reproaches upon him”, Pilate “gave the soldiers that signal which had been beforehand agreed on; who laid upon them much greater blows than Pilate had commanded them, and equally punished those that were tumultuous, and those that were not; nor did they spare them in the least: and since the people were unarmed, and were caught by men prepared for what they were about, there were a great number of them slain by this means, and others of them ran away wounded. And thus an end was put to this sedition.” This is the carnage alluded to by the evangelist Luke with respect to the “the Galileans whose blood Pilate had mingled with their sacrifices” (LUKE 13:1-3).
The demonstration had turned into an insurrection thanks to Pilate’s penchant for disproportional cruelty. Pilate’s forces did not escape unscathed nonetheless: a few were killed. Further incensed by the loss of his men, Pilate proceeded to issue a warrant of arrest for the three ring leaders. At the top of the wanted list was Theudas Barabbas, who had spearheaded the protest: he was charged with murder as the life of a Roman soldier was far more precious than any number of Jews. Next was Judas Iscariot for being the leader of the Zealots overall. Simon Zealotes was third as he was at once a Zealot and their spiritual leader in his capacity as the Essene Pope.
Meanwhile, Jesus, who was the political leader of the three as they numbered among his 12-man shadow government (called the 12 disciples), censured them for provoking the Pilate backlash. Part of this outrage he expresses in JOHN 10:11 thus: “The good shepherd lays his life down for the sheep (the demonstrators in this context); and the hireling (mercenaries, a cynical characterisation of the three ring leaders), and not being a shepherd, whose own the sheep are not, does behold the wolf (Pilate) coming, and does leave the sheep, and does flee; and the wolf catches them, and scatters the sheep; and the hireling does flee because he is an hireling, and is not caring for the sheep (the three had gone into hiding instead of sticking their necks out for the sake of the demonstrators.)” Clearly, the three had acted unilateral, without seeking the opinion of Jesus on the matter.
SIMON ZELOTES IS DEMOTED
The disastrous riot against Pilate scandalised Simon Zelotes. Remember, Simon Zelotes had in September AD 31 succeeded John the Baptist (after his execution) as the Pope, or the Father of the Essene community. Now that his reputation was in tatters and a warrant of arrest had been issued against him, he could not be Pope anymore. Accordingly, Jonathan Annas (the disciple Nathaniel) acceded to the papacy forthwith. In the Jesus movement, there were two factions – the Belligerent Faction, who advocated a forceful expulsion of the Romans, and the Peace Faction, who preached co-existence with the Roman overlords. Simon Zelotes headed the former, whilst Jonathan Annas headed the latter. As such, Jonathan was agreeable to the Roman authorities too.
As the new Pope, Jonathan took one more step: he decided to excommunicate Simon Zelotes and Judas Iscariot from the Essene fold primarily to placate Pilate (it is not clear why Theudas Barabbas was not excommunicated). Jesus was talking about this course of action when he said, “I saw Satan and Lightning fall from Heaven” – the proper translation and not the one we typically encounter which wrongly reads, “I saw Satan fall like lightning from Heaven” and into which the Christian clergy have read all sorts of wishful meanings. As we have long explicated, “Satan” was the nickname of Judas as the leader of the Zealots and “Lightning” was the nickname of Simon Zealotes as the head of the war faction in the Jesus movement. Once Simon Zealotes was excommunicated, it meant he would never ever be Pope again and Jonathan Annas would be practically uncontested as Pope.
Now, just as being initiated into the Essene fold was referred to as “being born again”, excommunication was referred to as “dying spiritually”. Excommunication involved undergoing a ritual of symbolic death. An excommunicated monastic was put through a burial rite, dressed in grave clothes, and put in his own tomb. In the case of a leader such as Simon Zelotes, the tomb was one of the caves carved out from the ends of the southern cliffs at Qumran. This cave has been found by archaeologists and has been dubbed “Cave 4”. This was a tomb reserved for the burial of Popes. As the first Essene Pope, Menahem, had been given the titular name Abraham, Cave 4 was also known as Abraham’s Bosom in his honour. The excommunicant was placed there for three full days and on the fourth day was brought out and released into the wider world, with all connection with the Essene Community completely severed.
Simon Zelotes was subjected to the same ritual as well. However, before it could run its course, there was a “divine” intervention. Exactly what was this?
JESUS MOVES TO RESTORE SIMON
Whilst he was Pope, Simon Zealotes went by another informal title, “Eleazer”. The title derived from Eleazer of the Old Testament, who succeeded his father Aaron as High Priest. The Pope was the de facto High Priest of the Essene community.
In Greek, Eleazar is Lazarus. When Simon Zealotes, alias Lazarus, was demoted as Pope, he became a “Leper”. This did not mean a diseased person. In Essene jargon, “Leper” was a term for a person who was not to be admitted into sacred surroundings (this definition can be found in a Dead Sea scroll called the Temple Scroll). This was the fate of Simon Zelotes when he was excommunicated from the Essene fraternity. Thus, when Jesus was feted in the house of “Simon the Leper” (MATTHEW 26:6-13/ MARK 14:3-9), it was actually in the house of Simon Zelotes.
Now, although Jesus did not approve of the demonstration against Pilate, he still held Simon Zelotes in very high esteem. Not only was Simon Zelotes his staunchest supporter politically but he was his father-in-law. As the Davidic messiah, Jesus must have therefore been under enormous pressure from his own wife Mary Magdalene and his mother-in-law Helena Salome to do something about the restoration of Simon Zelotes. Eventually, Jesus caved in. The reinstatement of Simon Zelotes is recorded in JOHN 11:1-53, a passage frequently titled as The Raising of Lazarus. The Christian clergy has spun this as the act of summoning Lazarus from a state of natural death and have therefore dubbed it as a miracle. The fact of the matter was that it was the raising of Lazarus not from real death but from symbolic death.
Just to reiterate, when Simon Zelotes was excommunicated from the Essene fold, he figuratively died in that he was banished from all manner of fellowship with the Essene fraternity. Jesus now boldly stepped forward to unilaterally restore him to fellowship. This figuratively meant “raising him from the dead”. When Jesus performed the ritual to reinstate Simon Zelotes, he stepped onto the toes of the Essene top brass and from that day on they began to plot his demise (JOHN 11:53).
At an economically tumultuous juncture of our country’s history as we presently are, where unemployment has become something of a Gordian Knot conundrum, a promisingly ameliorational pursuit known as Business Process Outsourcing (BPO) is well worth exploring as a salvavic option.
One pundit defines BPO as “a subset of outsourcing that involves contracting the operations and responsibilities for a particular business process to a third-party service provider.” Examples of BPO services, which invariably do not constitute a company’s core or primary mission, include inbound and outbound call centres, live chat, bookkeeping, web development, research marketing, accounting and finance, and after-hours call answering services. BPO is driven, fundamentally, by the imperative of cost-cutting and overrides national boundaries through the employment and deployment of technologies that make human and data communications easier, thus lending credence to the concept of the global village that is today’s world.
BPO had been in existence in its primordial form since as early as the 19th century but it was not until the 1980s that its latter-day incarnation loomed larger and the term outsourcing became part of daily business parlance. Today, every continent is into BPO, including the economic Dark Horse called Africa. The Global IT-BPO Outsourcing Deals Analysis segments BPO buyer regions into three categories. These are North and South America (42 percent); Europe, Africa, and the Middle East (35 percent); and Asia and Oceania 23 percent.
In a Third World country such as Botswana, overseas-oriented BPO is key to bringing in those paramount hard currencies besides engendering a radical turnaround in the all too dingy joblessness picture. But are we up to it folks? Have we gotten aboard the bandwagon or we are virtual spectators watching nonchalantly as the BPO locomotive streaks away at breakneck speed?
JAX’S FLASH-IN-THE-PAN SUCCESS
The extent to which BPO has taken root in Botswana is not apparent. The first time I heard of it was in August 2007, when the Botswana Qualifications Authority (BQA), then going by the name Botswana Training Authority (BOTA), put it on record at a one-day IFSC-organised conference that they were in the process of developing standards for the nascent BPO industry in Botswana whilst they benchmarked with Mauritius, the UK, and South Africa. Little, if anything at all, has been heard of their progress since.
In February 2018, The Botswana Guardian reported of the newly-established Direct BPO, a fully-owned subsidiary of Mascom, which was looking to employing 400 people at the very outset. Once again, details as to how Direct BPO, whose establishment coincided with Mascom’s 20-year anniversary, has fared to date remain sketchy.
Perhaps the most spectacular case of a BPO operation in Botswana was that of Oseg, a company begun by Majakathata Pheko, affectionately known as Jax, in 2003 under the Debtsolve franchise umbrella. Oseg, which comprised of three divisions, offered customer management and financial services solutions and operated out of Gaborone and Windhoek in Namibia, where it touted MTN as its principal client. Oseg did receivable management for local financial blue chips such as Barclays Bank, FNB, Bayport, MVA, Botswana Insurance Company, Letshego, and Standard Chartered, and in due course CEDA and Mascom. It also served the Australian offshore market. Its account receivable division was the biggest in Botswana, handling over 60,000 accounts and managing a portfolio of over P400 million.
At its height, Oseg employed 150 people and had spent over P15 million on cutting edge technology and manpower training. In 2007, Oseg was nominated for Best Non-European Contact Centre at the CCF Awards held that year in Birmingham, UK, the “Oscars of the industry”.
Then in 2016, the sky seemed to have fallen. Oseg found itself saddled with an odious P4.4 million debt, with its staff resultantly trimmed to just under 50. According to media reports, Jax pointed to his own bankrollers and their partners in the alleged crime as his rather devious saboteurs. “I have evidence that powerful people in the bank and a cabal of friends both inside and outside the bank were intentionally and aggressively looking for ways to weaken Oseg, tarnish its name and diminish its value as they were in the same competing business interests, in the call centre and the factoring business,” the then youthful entrepreneur, who was only 41 at the time, bemoaned.
Jax reported the matter to NBFIRA and what came of that, not to mention the continued viability of his business, I have not been able to establish. I just hope and trust that Jax personally weathered the tempest as I have it on good authority that he is doing fairly well.
BOTSWANA MISSING OUT ON DOLLAR-DENOMINATED BILLIONS
For emerging economies, and even peripheral Third World countries, the BPO business can be something of a gold mine. According to the latest McKinsey report, the global BPO industry is valued at $163 billon and is expected to grow at $183 billion by the year 2023.
In the Philippines, BPO, which began with a call centre setup way back in 1992, accounts for 11 percent of GDP, the single biggest contributor to the nation’s economic activity. It employs 1.3 million people in over 700 outsourcing companies. One company, called Teleperformance, alone employs 47,000 people in 21 sites. In 2019, the BPO sector generated revenues of the order of $26.3 billion.
In India, the BPO sector, now 30 years old, provides direct employment to 2 million people and indirect employment to 8 million. In 2019, the BPO income overall amounted to $8.6 billon. In Mauritius, the ICT/BPO sector contributed 6 percent to GDP in 2019, representing a key driver of the Mauritian economy. The BPO sector is responsible for 53 percent of the 27,000 people employed in the ICT/BPO superstructure in 850 companies.
According to the Economic Development Board of Mauritius, leading multinationals such as Accenture, Huawei, Aspen Pharmacare and Allianz have back office operations in Mauritius. In addition, a number of international payroll companies currently use Mauritius as a service delivery centre.
Kenya is also looking to position itself as a hub for global digital BPO, notably through government promotion schemes such as Ajira. According to the ITC Authority of Kenya, the market size for online work was estimated to be $4.8 billion in 2016 and was projected to generate $15 billon by 2020. With only 7000 people employed in the BPO industry in the country, we are talking about a modest figure though it is still brisk compared to the rather lugubrious situation in Botswana. Clearly, there are billions in US dollar terms to be had in BPO and we are missing out on these big time.
MZANZI LEAVES BW IN THE DUST
Yet it is Big Brother next door from whom we have precious much to glean as he is our immediate competitor potentially in the BPO race. Remember, if our IFSC continues to flounder to date, it is largely on account of the fact that in Mzansi, we have a formidable rival right on our doorstep.
As we speak, the South African BPO sector is valued at $461 million going by the invariably authoritative McKinsey survey. It employs 270,000 people in six cities, a figure projected to more than double to 775,000 by 2030. Of the current total staff base, 65,000 serve international clients. That South Africa has made such enormous strides in the BPO arena is meritoriously earned and not simply fortuitous. It has been voted the second most attractive BPO location in the world for three years on the trot.
The South African BPO sector is tipped to grow by 3 percent per annum over the next three years, a rate which is in line with the trends in the global BPO space. There are currently over 100 local and international BPO providers operating in South Africa, with local players in the main serving large multinational customers. The industry’s key offshore business clientele is domiciled in English-speaking countries, notably the United Kingdom, United States, Canada, Australia, New Zealand and Ireland, with 61 percent coming from the United Kingdom, 18 percent from the United States and Canada, and 11 percent from Australia.
In June this year, the $1.5 trillion-strong Amazon announced that it would be signing up a total of 3000 South Africans to help cater to its customers in North America and Europe, which is testament to the fact that the country’s BPO market continues to make waves in the Western world. If Jeff Bizos is impressed, you can count on the likes of Elon Musk and Mark Zuckerberg to follow suit too sooner rather than later.
A FORGONE OPPORTUNITY TO TURBO-CHARGE THE BPO INDUSTRY IN BOTSWANA
Empowerment Africa is an organisation that boasts a business network that enables established and emerging businesses to connect, partner, and create long-term value with Africa-based projects. With reportedly 3000 esteemed contacts, it liaises with governments, major corporations, and investors to facilitate business opportunities, deliver deal flow, and provide research across its network to the Empower Africa business community.
Empowerment Africa recommends seven countries in Africa with thriving outsourcing industries. They are Ethiopia, Nigeria, South Africa, Kenya, Ghana, Mauritius, and Madagascar in that order. Botswana is conspicuous by its absence and that must be ample cause for concern to our Monetary Authorities, especially given that at least on paper, we are economically better off than three to four of these countries.
In 2015, Jax approached the Ministry of Youth, Sport and Culture and propositioned a joint partnership with Oseg in unlocking BPO potential in Botswana by looking at the public sector Debt Collection and Call Centre services for government. Jax reckoned that the total market for Receivables and Revenue collections sitting in Government and Parastatal organisations at the time amounted to over P3.5 billion, equivalent to 8% of the National Budget then. If the BPO sector was to be utilised to assist in collecting this debt, over 2700 jobs would be created.
Furthermore, considering that a typical government employee spent half the time attending to inquiries from members of the public, the exercise would result in improved efficiency delivery in government departments in addition to boosting government’s liquidity position.
This is what Jax said in a 50th independence anniversary publication in 2016 on the same subject. “Our estimations are that once all the collections work is outsourced, there is a potential to collect more than P100 million every month for the Government of Botswana.
The opportunity to create more than 2700 exists, which will help to mop out unemployed graduates and upskill them. The economic impact of 2700 jobs would support more than 15,000 people in the economy and also help to create jobs in other industries that support the BPO sector, and will stimulate the whole ICT sector. Over and above that, the outsourcing would stimulate the whole IT sector and help improve Botswana’s position as an ICT and Call Centre hub.”
Once again, I am not privy to what came of this proposition, but I am persuaded that had government acceded to it, the BPO business in the country would have quantum-leaped and we would today be waltzing on the proverbial Cloud 9 in terms of revenues generated. Even the road retarder Oseg encountered with its bankers would not have been a factor at all. As significant, we would in all probability have made it on Empowerment Africa’s short list for the continent’s pre-eminent BPO addresses.
THE INSTRUMENTALITY OF GOVERNMENT IN BOOSTING BPO FORTUNES
Granted, with the advent of the still latent E-Governance, the synergic potential with the Call Centre business is stupendous. As per Jax’s pitch to those who care to hear, “The outsourcing of the E-Governance and collections will greatly improve efficiency in service delivery in the government departments. Directing traffic and enquiries to a Call Centre would empower the BPO sector in such a way that would be able to help the public from all over the country from one central point 24 hours and 7 days week.
The Call Centres would also relieve Government of the pressure to develop brick and mortar representations/offices across the country. This would help to save billions of Pula as the public will be able to access the services from the comfort of their homes and villages. The Call Centre service would bridge the urban and rural division as everyone will now be able to access Government services and receive the same service.”
The real jackpot both to government and the broader citizenry, however, resides in the offshore market. With sales cycles in the BPO business taking up to 12 months, contracts typically run from five to seven years, which is sustained lucrativeness by any measure. It is in the direction of the overseas market that much of our energy should be focused, though wary that we do not recklessly neglect the domestic market, if we are to reinvigorate the BPO industry and get meaningful returns out of it.
Developed countries are all the more keen to outsource as one way to insulate their economies against severe hurt inflicted by globalwide economic tremors. For instance, it was thanks to offshore outsourcing that Australia so ably navigated the 2008 economic crisis. That year, IBM released a BPO report showing that 80% of Australian companies were willing to outsource from offshore companies to save 50% in expenses.
Here in Botswana, I would recommend that government be in the BPO vanguard by splashing on a whole host of catalytic factors. In South Africa, for instance, the Department of Industry, Trade and Competition devoted R1.3 billion between 2007 and 2018 to bolstering the BPO industry in one way or the other and committed a further R1.2 billion in 2019 alone, gestures which no doubt underlie the solid performance of the industry.
Even when the lockdowns were in progress, the industry was accorded essential services status so that it kept the momentum going. As if not to be outdone, the South African BPO industry body, Business Process Enabling South Africa (BPESA), has commendably done its part in aiding the growth of the industry by supporting skills development, sharing best practice, and providing its members with access to other business networks and associations that drive and influence the sector’s transition into the digital economy. In Mauritius, the Prime Minister himself, and not a man of lesser stature, directly oversees the BPO sector.
For Botswana to make a mark in the BPO arena, it has to build a reputation as a reliable, cost-effective, and high-quality destination for outsourced business services, attributes all of which South Africa excels in. In addition, South African BPO players provide higher-quality services owing to strength across five key areas: availability of skills, infrastructure, risk profile, business environment, and industry size. In Botswana, we will need to nurture some of these strengths with the instrumentality of government.
With the advent of COVID-19, it is of essence that traditional BPO providers build capabilities to enable rapid deployment and ramp-up of fully functional teams under crisis scenarios. Operational resilience, that is, the ability to pivot when an ordinarily disruptive set of circumstances hits, is key. South Africa demonstrated this capacity most eloquently when 90 percent of the workforce was able to switch to remote work in residential settings, when 50 percent of operations in key competing locations such as the Philippines and India came to a virtual standstill.
Lastly but by no means the least, a competitive currency is a reasonably efficacious undercutting strategy. In recent months, the South African Rand has significantly weakened against the US dollar, in which the cost of outsourcing is typically denominated, and this has enabled South African BPOs to compete more effectively with Asian offerings.
It concerns me that last year, the Pula appreciated by 1.6 percent against the SDR (Special Drawing Right), which is a compound of five currencies, namely the US dollar, the British Pound, the Euro, the Japanese Yen, and the Chinese Yuan. If that relatively ripped Pula trajectory persists, it will not help our BPO competitiveness at all Rre Moses Pelaelo.
Mighty Persian King ends Babylonian exile after 60 years
For all his euphoria and grandiose preparations for Nibiru King Anu’s prospective visit to Earth, General Atiku, Nebuchadnezzar didn’t live to savour this potentially highly momentous occasion. In fact, none of his next three bloodline successors were destined to witness up-close the return of the Planet of the Gods, as Nibiru was referred to in Sumerian and Egyptian chronicles.
Nebuchadnezzar died in 562 BC, having ruled for 43 years, missing Nibiru, which showed up circa 550 BC as we set down in The Earth Chronicles series, by a whisker. During the next 6 years, he had three successors in such an unconscionably short period of time. His immediate one was Merodach, his eldest son.
In Botswana, the Trade Disputes Act, 2016 (“the Act”) provides the framework within which trade disputes are resolved. This framework hinges on four legs, namely mediation, arbitration, industrial action and litigation. In this four-part series, we discuss this framework.
In last week’s article, we discussed the third leg of Botswana’s trade dispute resolution framework-industrial action. In this article, we discuss the fourth leg, namely litigation at the Industrial Court. The Act does not define the term litigation. Litigation is generally understood to mean a situation where parties to a trade dispute take their dispute to a court, in this case the Industrial Court, for determination by a judge.
Just like an arbitrator, a judge’s decision is binding on the parties though they can, of course, appeal it. However, while an arbitrator must be acceptable to both parties, a judge does not have to be acceptable to the parties. A party can, however, apply for the judges’ recusal from the case for such reasons as reasonable apprehension of bias.
Before discussing litigation at the Industrial Court, it is apposite that a brief background of the origins and evolution of the Industrial Court be given. The original Trade Disputes Act (No. 19/1982) provided for disputes to be adjudicated, inter alia, by a Permanent Arbitrator. This is confirmed in Veronica Moroka & 2 Others v The Attorney General and Another, Court of Appeal Civil Appeal No. CACGB-121-17 at para 11.
The Industrial Court replaced the institution of the Permanent Arbitrator (Dingake Collective Labour Law in Botswana 23) following the enactment of the Trade Disputes Act (No. 23/1997) which, as confirmed in the Veronica Moroka case supra, came into force on 9 October 1997.
As per Kirby JP, in the Veronica Moroka case supra, the Industrial Court’s status “as a court was uncertain and no provision was made for it to be served by a Registrar, with the usual powers and duties of such office”.
The Court of Appeal, in Botswana Railways Organization v Setsogo and Others, 1996 BLR 763 CA, remedied this defect. It held that the Industrial Court was not a mere statutory tribunal, but was, in line with Section 127(1) of the Constitution of Botswana, a subordinate court, having limited jurisdiction.
Following the change of the definition of subordinate court by Act 2/2002 to exclude the Industrial Court, along with the Court of Appeal, the High Court and a court martial, the Industrial Court became a superior court, albeit still with limited jurisdiction unlike the High Court, for instance, which has inherent unlimited jurisdiction.
Consequently, appeals from the Industrial Court were referred to the Court of Appeal. Perhaps most significantly, according to Veronica Moroka, Industrial Court judges were now, just like High Court judges, protected by, inter alia, security of tenure.
The Trade Disputes Act was further amended and replaced by the Trade Disputes Act, 2003 which commenced on 6 April 2004 as Act No. 15 of 2004. Section 16(8) of this Act provided for the appointment of the Registrar and an Assistant Registrar, but still had no section clothing them with specific powers.
It, through section 20(3), also bestowed, in the Court, the power to hear urgent applications and, in terms of section 18(1), the power to grant interdicts, thereby remedying the defects identified in Botswana Railways Organization v Setsogo & Others supra, but it still had no provision dealing with writs of execution and sales flowing therefrom.
In terms of section 18(1) of the Act, the Industrial Court’s jurisdiction includes the power to hear and determine all trade disputes except disputes of interest as well as, in terms of section 20(1) (b) of the Act, the power to interdict any unlawful industrial action and to grant general interdicts, declaratory orders or interim orders.
In terms of section 20(1) (c) of the Act, the Industrial Court is also clothed with the power to hear appeals and reviews of the decisions of mediators and arbitrators respectively. It, in terms of section 20(1) (d) of the Act, has the power to direct the Commissioner to assign a mediator to mediate a dispute if it is of the opinion that the matter has not been properly mediated or requires further mediation.
In terms of section 20(1) (e) of the Act, the Industrial Court also has the power to direct the Commissioner to refer a dispute that is before the Court for arbitration. In terms of section 20(1) (f) of the Act, it has the power to refer any matter to an expert and, at the Court’s discretion, to accept the expert’s report as evidence in the proceedings.
The Industrial Court also has the power to give such directions to parties to a trade dispute provided the object of such directions is the expedient and just hearing and determination or disposal of any dispute before it.
In terms of section 20(2) of the Act, any matter of law and any question as to whether a matter for determination is a matter of law or a matter of fact is decided by the presiding judge. In terms of section 20(3) of the Act, with respect to all issues other than those referred to under section 20 (2), the decision of the majority of the Court prevails.
Where there is no majority decision under section 20 (3), the decision of the judge prevails. In terms of section 24(2) of the Act, any interested party in any proceedings under the Act may appear by legal representation or may be represented by any other person so authorised by that party.
In terms of section 28(2) of the Act, a decision of the Industrial Court has the same force and effect as a decision of the High Court, and because, unlike South Africa, Botswana has no Labour Appeal Court, decisions of the Industrial Court, just like those of the High Court, are, in terms of section 20(5) of the Act, appealable to the highest court in the land, that is, the Court of Appeal.
The Trade Disputes Act went through another amendment in 2016. Section 14 of the Act ensures the continuation of the Industrial Court. It outlines its functions as the settlement of trade disputes as well as the securing and maintenance of good industrial relations in Botswana.
In terms of section 15(1) of the Act, the judges of the Industrial Court are appointed by the state President from among persons possessing the qualifications to be judges of the High Court as prescribed under section 96 of the Constitution.
In terms of section 15(2) of the Act, these judges are headed by the President of the Industrial Court designated by the state President from among the judges.
In terms of section 15(4) of the Act, a judge of the Industrial Court who is not a citizen of Botswana or who is not appointed on permanent and pensionable terms may be appointed on contract basis and is eligible for reappointment.
In terms of section 15(5) of the Act, Judges of the Industrial Court sit with two nominated members, one of whom is selected by the judge from among persons nominated by the organisation representing employees or trade unions in Botswana and the other selected by the judge from among persons nominated by the organisation representing employers in Botswana.
In terms of section 15(6) of the Act, where, for any reason, the nominated members are or either of them is absent for any part of the hearing of a trade dispute, the jurisdiction of the court may be exercised by the judge alone or with the remaining member of the Court, whichever the case may be, unless the judge, for good reason, decides that the hearing should be postponed.
In terms of section 18(1) of the Act, An Industrial Court judge vacates office on attaining the age of 70 years, provided that the state President may permit him or her to continue in office for such period as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to proceedings that had commenced before him or her.
In terms of section 18(2) of the Act, in accordance with the provisions of the proviso to section 96(6) of the Constitution, a person appointed to act as an Industrial Court judge vacates that office on attaining the age of 75 years.
In terms of section 19(1) (a) and (b) of the Act, an Industrial Court judge may be removed from office only for inability to perform the functions of his or her office, whether arising from infirmity of body or mind, or from any other cause or for serious misconduct.
In terms of section 19(2) of the Act, the power to remove an Industrial Court judge from office vests in the state President acting in accordance with the procedure provided under section 97 of the Constitution for the removal of High Court judges.
*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys. He can be contacted at 71410352 or email@example.com