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Are our courts biased against Government in labor cases?

Ndulamo Anthony Morima


Especially since the 2011 public sector strike, which led to the summary dismissal of about 2934 essential service employees though 2378 were re-employed on new contracts, there has been a plethora of court cases involving trade unions and government.

Among these cases are the ones relating to termination of certain trade union benefits; termination of secondment of trade union Secretary Generals and the declaration of Teaching, among others, as an essential service. They also related to government’s unilateral salary increase for public officers falling within the scope of the Public Service Bargaining Council (PSBC).

It is on record that government not only lost these cases with costs, but was rebuked by the courts for making decisions which are tainted with both procedural and substantive impropriety. Trade Unions’ victories over government have been so many that some have started suspecting that our courts are biased against government in labor cases.

This suspicion is very serious since it puts, in doubt, one of the foundational pillars of our constitutional democracy, namely judicial independence. It suggests that our judges are not independent and make irrational decisions influenced by irrelevant considerations. This suspicion is disturbing considering the allegations of forum shopping which were once made by Chief Justice Maruping Dibotelo. This, it is said, is particularly so because the cases between government and Unions seem to rotate between certain judges most of whom were, at one stage, members and/or sympathizers of Opposition political parties.

It is in this regard that I wish to make an investigation as to whether our courts are biased against Government in labor cases. I do this by investigating the aforesaid cases, albeit in a cursory manner due to space limitations. Firstly, termination of certain trade union benefits. In this case, government made a unilateral decision to terminate such trade Union benefits as provision of offices and transportation to general meetings. The court held that such a decision was tainted with procedural impropriety because it was made without according the Union the right to a hearing.

The question is: can the court be held to have been biased against government in that instance? The right to a hearing, which has been entrenched in our law through such cases as Masimolole v The Attorney General and Another [1997] BLR 142 (CA), is one of the fundamental tenets of the principle of natural justice.

In Latin it is called audi alteram partem which literally means “hear the other side”. It simply requires that before a decision, especially an adverse one, is taken against a person or an entity, such person or entity has to be heared unless exceptional circumstances exist. Our courts, in such cases as Michael Phirinyana v Spie Batignolles, have held that such exceptional circumstances include cases of emergency, e.g. to save lives during riots and where the right to a hearing is waived.  

On the evidence before the court government had not accorded the Union any hearing before making the decision and no exceptional circumstances existed. Also, there was a Collective Labour Agreement (CLA) entered into between the government and the Union which made negotiation mandatory before making any changes that touch on the CLA.  

Government’s action was, therefore, not only in violation of the right to a hearing, but was also in violation of the CLA and no reasonable court could have found in its favour. In this case, it can be safely concluded that the court did not exercise any bias against government. It merely applied the law as it is. Secondly, the termination of secondment of trade union Secretary Generals. In this case, still without prior consultation with the trade unions, government made a decision to recall the seconded Secretary Generals back to work.  

Here too the courts held that government’s action was unlawful to the extent it not only violated the right to a hearing as discussed above, but also because it reneged on the duty to negotiate with the trade unions as provided for in the CLA. Thirdly, the declaration of Teaching, among others, as an essential service. In this case, government, through Statutory Instrument (SI) No. 57 of 2011 issued in terms of Section 49 of the Trade Disputes Act (TDA), 2003 (“the Act”), declared teaching, veterinary services, diamond sorting and transport services as essential services.

When the matter went to the High Court, Justice Dr. Oagile Key Dingake declared Section 49 of the Act incompatible with the Constitution and thus invalid. He also declared as invalid Statutory Instrument (SI) No. 57 of 2011 made under Section 49 of the Act. The Court of Appeal (CoA) upheld Justice Dr. Dingake’s ruling. The appeal to the CoA concerned the extent to which, if at all, Parliament has the power to delegate its constitutionally conferred legislative function to the Executive.

In his judgment, Justice Kirby, with Justices Lord Alistair Abernethy, Isaac Lesetedi, Monametsi Gaongwalelwe and Lord Arthur Hamilton concurring,  said “… in the majority of cases the legislative power delegated by Parliament in the interests of good government to ministers or to other administrators or bodies is the power to amend Schedules.

It continued to say “… It is only in comparatively rare cases that the power to amend substantive sections of an Act is so delegated – and such cases will, where a challenge is mounted, require particularly close scrutiny by the court as to their constitutionality.” The court held that the decision as to which services or categories of services should be classified as essential services is an important policy matter properly to be debated in Parliament and to be subjected to public scrutiny.

The court held that “… This is more so because, in the case of the teachers and other public servants … the right to strike was only fairly recently conferred upon them by an Act of Parliament, after full debate…  To allow the right to strike to be arbitrarily cancelled by a member of the Executive would not pass constitutional muster.” No person can argue that these judgments were unfair to government for they promoted the doctrine of separation of powers which is one of the foundational pillars of our constitutional democracy.

This view prevails in other jurisdiction, e.g. South Africa where the constitutional court held, in Executive Council Western Cape Legislature v President of Republic of South Africa 1995 (10) BCLR 1289 (CC), that while the Legislature may not delegate plenary law-making powers to the Executive, it may delegate subordinate law-making powers.

Lastly, the unilateral salary increase for public officers falling within the scope of the PSBC. In this case, government made a unilateral 3% salary increase for the public service including members of the Botswana Defence Force, Botswana Police Service, Botswana Prison Service, Directorate on Intelligence Services and Directorate on Corruption and Economic Crime.

Government’s contention was that since the scope of the PSBC is limited to unionized public officers, it can make salary increments for non-unionized public officers outside the PSBC. Trade unions on the other hand argued that the scope and coverage of the PSBC is not limited to unionized public officers.

The court, per Motswagole J, in Botswana Landboards, Local Authorities & Health Workers Union & 4 Others v Director of Public Service Management & 6 Others, Case No MAHGB-000343/16, on 4th April 2017, agreed with the trade union’s argument, holding that “… all public officers employed in terms of the Public Service Act No.30 of 2008(the PSA), save as expressly excluded therein, fall within the scope of the PSBC…”

Before we express our opinion as to whether the court was right in its finding it is apposite that we quote a critical article from the constitution of the PSBC. Article 3.1 provides that “the registered scope of the PSBC is the Government as the employer and all employees of the public service as defined by Article 2.11 of this Constitution.”      

Article 2.11 of the PSBC constitution defines the public service as all Government ministries, sections, units and departments, except the Botswana Defense Force, Botswana Police Service and Botswana Prison Service. The question is whether or not this definition includes non-unionized public officers?

In my view it does, making them fall under the scope of the PSBC. No wonder, as the court says, “…the PSBC, in its constitution, has provisions for notifying unionized employees, of the resolutions passed thereat…” The court further held that all employees covered by the PSA, including Management employees, fall within the reach of the PSBC. Certainly, no one can argue that this judgment was biased against government. It is, in my view, a very fair judgment which rightly distinguished the case of First National Bank v Botswana Bank Employees’ Union [2012] 1 BLR at 666 which government relied on.  

While that case, which concerned private sector employees, rightly held that the pay and annual increments of non-unionized employees are not negotiable matters as between an employer and a Union, this case relates to public sector employees and the PSBC which, unlike a trade Union, affects public servants in general save for disciplined forces. 

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Export Processing Zones: How to Get SEZA to Sizzle

23rd September 2020
Export Processing Zone (EPZ) factory in Kenya

In 2005, the Business & Economic Advisory Council (BEAC) pitched the idea of the establishment of Special Economic Zones (SEZs) to the Mogae Administration.

It took five years before the SEZ policy was formulated, another five years before the relevant law was enacted, and a full three years before the Special Economic Zones Authority (SEZA) became operational.

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Egypt Bagged Again

23rd September 2020

… courtesy of infiltration stratagem by Jehovah-Enlil’s clan

With the passing of Joshua’s generation, General Atiku, the promised peace and prosperity of a land flowing with milk and honey disappeared, giving way to chaos and confusion.

Maybe Joshua himself was to blame for this shambolic state of affairs. He had failed to mentor a successor in the manner Moses had mentored him. He had left the nation without a central government or a human head of state but as a confederacy of twelve independent tribes without any unifying force except their Anunnaki gods.

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23rd September 2020

If I say the word ‘robot’ to you,  I can guess what would immediately spring to mind –  a cute little Android or animal-like creature with human or pet animal characteristics and a ‘heart’, that is to say to say a battery, of gold, the sort we’ve all seen in various movies and  tv shows.  Think R2D2 or 3CPO in Star Wars, Wall-E in the movie of the same name,  Sonny in I Robot, loveable rogue Bender in Futurama,  Johnny 5 in Short Circuit…

Of course there are the evil ones too, the sort that want to rise up and eliminate us  inferior humans – Roy Batty in Blade Runner, Schwarzenegger’s T-800 in The Terminator,  Box in Logan’s Run,  Police robots in Elysium and  Otomo in Robocop.

And that’s to name but a few.  As a general rule of thumb, the closer the robot is to human form, the more dangerous it is and of course the ultimate threat in any Sci-Fi movie is that the robots will turn the tables and become the masters, not the mechanical slaves.  And whilst we are in reality a long way from robotic domination, there are an increasing number of examples of  robotics in the workplace.

ROBOT BLOODHOUNDS Sometimes by the time that one of us smells something the damage has already begun – the smell of burning rubber or even worse, the smell of deadly gas. Thank goodness for a robot capable of quickly detecting and analyzing a smell from our very own footprint.

A*Library Bot The A*Star (Singapore) developed library bot which when books are equipped with RFID location chips, can scan shelves quickly seeking out-of-place titles.  It manoeuvres with ease around corners, enhances the sorting and searching of books, and can self-navigate the library facility during non-open hours.

DRUG-COMPOUNDING ROBOT Automated medicine distribution system, connected to the hospital prescription system. It’s goal? To manipulate a large variety of objects (i.e.: drug vials, syringes, and IV bags) normally used in the manual process of drugs compounding to facilitate stronger standardisation, create higher levels of patient safety, and lower the risk of hospital staff exposed to toxic substances.

AUTOMOTIVE INDUSTRY ROBOTS Applications include screw-driving, assembling, painting, trimming/cutting, pouring hazardous substances, labelling, welding, handling, quality control applications as well as tasks that require extreme precision,

AGRICULTURAL ROBOTS Ecrobotix, a Swiss technology firm has a solar-controlled ‘bot that not only can identify weeds but thereafter can treat them. Naio Technologies based in southwestern France has developed a robot with the ability to weed, hoe, and assist during harvesting. Energid Technologies has developed a citrus picking system that retrieves one piece of fruit every 2-3 seconds and Spain-based Agrobot has taken the treachery out of strawberry picking. Meanwhile, Blue River Technology has developed the LettuceBot2 that attaches itself to a tractor to thin out lettuce fields as well as prevent herbicide-resistant weeds. And that’s only scratching the finely-tilled soil.

INDUSTRIAL FLOOR SCRUBBERS The Global Automatic Floor Scrubber Machine boasts a 1.6HP motor that offers 113″ water lift, 180 RPM and a coverage rate of 17,000 sq. ft. per hour

These examples all come from the aptly-named site    because while these functions are labour-saving and ripe for automation, the increasing use of artificial intelligence in the workplace will undoubtedly lead to increasing reliance on machines and a resulting swathe of human redundancies in a broad spectrum of industries and services.

This process has been greatly boosted by the global pandemic due to a combination of a workforce on furlough, whether by decree or by choice, and the obvious advantages of using virus-free machines – I don’t think computer viruses count!  For example, it was suggested recently that their use might have a beneficial effect in care homes for the elderly, solving short staffing issues and cheering up the old folks with the novelty of having their tea, coffee and medicines delivered by glorified model cars.  It’s a theory, at any rate.

Already, customers at the South-Korean  fast-food chain No Brand Burger can avoid any interaction with a human server during the pandemic.  The chain is using robots to take orders, prepare food and bring meals out to diners.  Customers order and pay via touchscreen, then their request is sent to the kitchen where a cooking machine heats up the buns and patties. When it’s ready, a robot ‘waiter’ brings out their takeout bag.   

‘This is the first time I’ve actually seen such robots, so they are really amazing and fun,’ Shin Hyun Soo, an office worker at No Brand in Seoul for the first time, told the AP. 

Human workers add toppings to the burgers and wrap them up in takeout bags before passing them over to yellow-and-black serving robots, which have been compared to Minions. 

Also in Korea, the Italian restaurant chain Mad for Garlic is using serving robots even for sit-down customers. Using 3D space mapping and other technology, the electronic ‘waiter,’ known as Aglio Kim, navigates between tables with up to five orders.  Mad for Garlic manager Lee Young-ho said kids especially like the robots, which can carry up to 66lbs in their trays.

These catering robots look nothing like their human counterparts – in fact they are nothing more than glorified food trolleys so using our thumb rule from the movies, mankind is safe from imminent takeover but clearly  Korean hospitality sector workers’ jobs are not.

And right there is the dichotomy – replacement by stealth.  Remote-controlled robotic waiters and waitresses don’t need to be paid, they don’t go on strike and they don’t spread disease so it’s a sure bet their army is already on the march.

But there may be more redundancies on the way as well.  Have you noticed how AI designers have an inability to use words of more than one syllable?  So ‘robot’ has become ‘bot’ and ‘android’ simply ‘droid?  Well, guys, if you continue to build machines ultimately smarter than yourselves you ‘rons  may find yourself surplus to requirements too – that’s ‘moron’ to us polysyllabic humans”!

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