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Employees have limited right to interdict employer from carrying out disciplinary hearings


There are many instances where the Industrial Court has stopped the employer from carrying out disciplinary hearing against errant employees. The reasons range from delay in pressing charges, double jeopardy, and bias among other factors.

The Court of Appeal has clarified the approach to be taken when an employee seeks to stop a disciplinary hearing. The decision has caused confusion as it has been interpreted by some(the employer no doubt falls into this category ) to mean that an employee cannot even in appropriate circumstances interdict an employer from carrying out a disciplinary hearing.

This decision will, of course, be clarified in the near future. The decision made by the Court followed an appeal launched by Debswana Diamond Mining Company. Industrial Court Juge Bahuma had granted Patrick Mwenge an order which read “The respondent is hereby interdicted from conducting disciplinary proceedings against the applicant”

The Appeals Court comprised of Justice Legwaila(deceased), Lestedi and Gaongalelwe. Justice Legwaila one of the pioneering Industrial Court Judges penned the decision. He wasted no time in condemning the inelegant drafting of the Order(it seems the Court of Appeal always has complaints about decisions made by lower Courts either that the Court below decided the matter on facts, not before it or for some other reason).Judge Bahuma’s Order gave a blanket protection against all future disciplinary hearings against Mwenge.
Mwenge had been charged with two charges. These were “serious noncompliance with the Company Code of Conduct and ethics”

“wilful disclosure”

The Industrial Court had granted the interdict on the basis that Debswana had waived the right to institute disciplinary proceedings against Mwenge.There was according to the Court a long delay in taking disciplinary steps. The decision was based on the reading of the proviso to Section 26(1) of the Employment Act. In terms of this Section, an employer waives its right to discipline an employee if there is a delay in instituting the disciplinary process.

Justice Legwaila clarified that Section 26(1) is not there for the employees taking. He stated that “There is, therefore, no doubt that as a general principle, an employee has the right to object to being disciplined after the lapse of a reasonable time. That is simply the legal principle but the employee complaining that that legal right is being breached must provide a factual basis for the assertion.”

The Court Overturned Justice Bahuma’s decision. Justice Legwaila emphasised that an interdict is an extraordinary, unusual and drastic remedy not be granted lightly. His words are worth repeating “Because of the facts of this case, I believe it is apposite to open the discourse in answering the issues raised by reminding courts of the very important but probably routinely glossed over words of caution repeated by Tebbutt JA (as he then was) in the case of Spectra V First National Bank (1995) BLR 210 CA at 214C-D-‘an interdict in the South African context has been described as an “unusual, extraordinary and discretionary remedy”.

It is not available to a litigant who is possessed of another or alternative remedy” Those strong words, extraordinary, unusual and drastic, implore us as Judges to tread with caution and to satisfy ourselves that indeed there is no “other alternative remedy” before we close the door to normal commercial or labour relations.”

What then is an alternative remedy? The Judge of Appeal answered as follows “…I need to briefly refer to the no remedy requisite. In this case, the Court a quo should have ben alerted from the outset that this was not a case for an interdict. The applicant had a remedy ready and prepared for him and guaranteed by law in the form of an internal disciplinary hearing. That guaranteed him the right to defend himself before a panel that was expected to apply the rules of fairness. That remedy should still be escalated to legal redress through the courts if need arose. A reinstatement and/or damages are redresses that come to mind where the ultimate disciplinary punishment by the employer was to be found to have be unlawful”

With these last words, it seems the Judgement has effectively put a curb on an employee’s right to interdict a disciplinary hearing. That, in fact, is the theme of the entire Judgement. The Court emphasised that employees should not spurn an initial opportunity to be heard at a disciplinary forum. Employees should tread carefully before attempting to interdict disciplinary process lest they are told as Mwenge “What was the respondent talking about running to court alleging a delay in disciplining him”

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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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