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Are our courts biased against Government in labor cases?

Ndulamo Anthony Morima

EAGLE WATCH


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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The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

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A Strong Marriage Bond Needs Two

8th December 2020

Remember: bricks and cement are used to build a house, but mutual love, respect and companionship are used to build a HOME. And amongst His signs is this: He creates for you mates out of your own kind, so that you may find contentment (Sukoon) with them, and He engenders love and tenderness between you; in this behold, there are signs (messages) indeed for people who reflect and think (Quran 30:21).

This verse talks about contentment; this implies companionship, of their being together, sharing together, supporting one another and creating a home of peace. This verse also talks about love between them; this love is both physical and emotional. For love to exist it must be built on the foundation of a mutually supportive relationship guided by respect and tenderness. As the Quran says; ‘they are like garments for you, and you are garments for them (Quran 2:187)’. That means spouses should provide each other with comfort, intimacy and protection just as clothing protects, warms and dignifies the body.

In Islam marriage is considered an ‘ibaadah’, (an act of pleasing Allah) because it is about a commitment made to each other, that is built on mutual love, interdependence, integrity, trust, respect, companionship and harmony towards each other. It is about building of a home on an Islamic foundation in which peace and tranquillity reigns wherein your offspring are raised in an atmosphere conducive to a moral and upright upbringing so that when we all stand before Him (Allah) on that Promised Day, He will be pleased with them all.

Most marriages start out with great hopes and rosy dreams; spouses are truly committed to making their marriages work. However, as the pressures of life mount, many marriages change over time and it is quite common for some of them to run into problems and start to flounder as the reality of living with a spouse that does not meet with one’s pre-conceived ‘expectations’. However, with hard work and dedication, couples can keep their marriages strong and enjoyable. How is it done? What does it take to create a long-lasting, satisfying marriage?

Below are some of the points that have been taken from a marriage guidance article I read recently and adapted for this purposes.

POSITIVITY
Spouses should have far more positive than negative interactions. If there is too much negativity — criticizing, demanding, name-calling, holding grudges, etc. — the relationship will suffer. However, if there is never any negativity, it probably means that frustrations and grievances are not getting ‘air time’ and unresolved tension is accumulating inside one or both partners waiting to ‘explode’ one day.

“Let not some men among you laugh at others: it may be that the (latter) are better than the (former): nor let some women laugh at others: it may be that the (latter) are better than the (former): nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames.” (49:11)

We all have our individual faults though we may not see them nor want to admit to them but we will easily identify them in others. The key is balance between the two extremes and being supportive of one another. To foster positivity in a marriage that help make them stable and happy, being affectionate, truly listening to each other, taking joy in each other’s achievements and being playful are just a few examples of positive interactions.
Prophet Muhammad (PBUH) said: “The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives”

UNDERSTANDING

Another characteristic of happy marriages is empathy; understanding your spouses’ perspective by putting oneself in his or her shoes. By showing that understanding and identifying with your spouse is important for relationship satisfaction. Spouses are more likely to feel good about their marriage and if their partner expresses empathy towards them. Husbands and wives are more content in their relationships when they feel that their partners understand their thoughts and feelings.

Successful married couples grow with each other; it simply isn’t wise to put any person in charge of your happiness. You must be happy with yourself before anyone else can be.  You are responsible for your actions, your attitudes and your happiness. Your spouse just enhances those things in your life. Prophet Muhammad (PBUH) said: “Treat your women well and be kind to them for they are your partners and committed helpers.”

COMMITMENT

Successful marriages involve both spouses’ commitment to the relationship. The married couple should learn the art of compromise and this usually takes years. The largest parts of compromise are openness to the other’s point of view and good communication when differences arise.

When two people are truly dedicated to making their marriage work, despite the unavoidable challenges and obstacles that come, they are much more likely to have a relationship that lasts. Husbands and wives who only focus on themselves and their own desires are not as likely to find joy and satisfaction in their relationships.

ACCEPTANCE

Another basic need in a relationship is each partner wants to feel valued and respected. When people feel that their spouses truly accept them for who they are, they are usually more secure and confident in their relationships. Often, there is conflict in marriage because partners cannot accept the individual preferences of their spouses and try to demand change from one another. When one person tries to force change from another, he or she is usually met with resistance.

However, change is much more likely to occur when spouses respect differences and accept each other unconditionally. Basic acceptance is vital to a happy marriage. Prophet Muhammad (PBUH) said: “It is the generous (in character) who is good to women, and it is the wicked who insults them.”
“Overlook (any human faults) with gracious forgiveness.” (Quran 15:85)

COMPASSION, MUTUAL LOVE AND RESPECT

Other important components of successful marriages are love, compassion and respect for each other. The fact is, as time passes and life becomes increasingly complicated, the marriage is often stressed and suffers as a result. A happy and successful marriage is based on equality. When one or the other dominates strongly, intimacy is replaced by fear of displeasing.

It is all too easy for spouses to lose touch with each other and neglect the love and romance that once came so easily. It is vital that husbands and wives continue to cultivate love and respect for each other throughout their lives. If they do, it is highly likely that their relationships will remain happy and satisfying. Move beyond the fantasy and unrealistic expectations and realize that marriage is about making a conscious choice to love and care for your spouse-even when you do not feel like it.

Seldom can one love someone for whom we have no respect. This also means that we have to learn to overlook and forgive the mistakes of one’s partner. In other words write the good about your partner in stone and the bad in dust, so that when the wind comes it blows away the bad and only the good remains.

Paramount of all, marriage must be based on the teachings of the Noble Qur’an and the teachings and guidance of our Prophet Muhammad (PBUH). To grow spiritually in your marriage requires that you learn to be less selfish and more loving, even during times of conflict. A marriage needs love, support, tolerance, honesty, respect, humility, realistic expectations and a sense of humour to be successful.

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Chronic Joblessness: How to Help Curtail it

30th November 2020
Motswana woman

The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

It was also reported that a bulb manufacturing company, which is two years old and is youth-led, is making waves in Selibe Phikwe. Called Bulb Word, it is the only bulb manufacturing operation in Botswana and employs 60 people. The figure is not insignificant in a town that had 5000 jobs offloaded in one fell swoop when BCL closed shop in 2016 under seemingly contrived circumstances, so that as I write, two or three buyers have submitted bids to acquire and exhume it from its stage-managed grave.

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