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Gender inequality in Botswana: decision making positions (Part II)

In this three-part series, we, in observance of this year’s International Women’s Day, made a review of gender equality in Botswana. In the first article, we considered gender equality from the perspective of Botswana’s legal framework.

We considered such aspects as land ownership rights; non-land property ownership rights; succession and inheritance rights; divorce petition rights; rights to independent travel; labour rights and citizenship rights. We concluded that Botswana’s legal framework is generally conducive to gender equality.

In the second article, we looked at gender representation in the executive, judiciary, legislature, Ntlo ya Dikgosi, Attorney General’s Chambers, the Botswana Police Service (BPS) and Botswana Defence Force (BDF). We concluded that with respect to these institutions, decision making positions are male-dominated. In this article, we look at gender representation at local government authorities, parastatals, trade unions and political parties.

Though the Secretary to the Independent Electoral Commission (IEC), Ms. Keireng Auntie Zuze, is a female, the IEC’s decision-making positions are male dominated. With respect to the Commission of seven members headed by a male, Justice Abednico Tafa, four are males while three are females. The Management Team too is not gender balanced. It has five males and three females. Of its entire staff compliment of about one hundred and seventy-nine employees, ninety-six are women while eighty-three are males.

Led by a male, Mr. Augustine Makgonatsotlhe, the Office of the Ombudsman is leading by example in the area of gender equality. Of the Management Team of six, five are females (i.e. the Executive Director and two Chief Legal Investigators), and two are males (i.e. the Deputy Ombudsman and one Chief Legal Investigator). DPSM too is leading by example. The current director, Goitseone Mosalakatane, is a woman. Generally, the situation has not deteriorated from the pre-2008 situation. There is an equal share of decision-making positions between women and men, with women occupying 51% and men occupying 49% of the decision-making positions.

Except for the D1 salary grade and F1 grade where men are more in number than the women’s 39%, women dominate other decision-making positions by salary grade. There are more men than women in local Council leadership. From the sixteen District Council, City Council and Town Council Chairpersons or Mayors, only two are women. They are Mayor Olga Ditsie and Council Chairperson Florah Mpetsane for Jwaneng Town Council and North East District Council respectively.

We also consider parastatals. These include Bank of Botswana (BoB), University of Botswana (UB), Botswana Meat Commission (BMC), Botswana Telecommunications Authority (BTA), Botswana College of Agriculture (BCA), Botswana Bureau of Standards (BOBS), Local Enterprise Authority (LEA), Citizen Entrepreneurial Development Agency (CEDA), Botswana Agricultural Marketing Board (BAMB) and Botswana Institute of Chartered Accountants (BICA).

Following the departure of its long serving Governor, Ms. Linah Mohohlo, Bank of Botswana is now headed by a male, Mr. M.D Pelaelo. Also, its decision-making bodies and positions are male dominated. The Governor is deputized by two Deputy Governors both of whom are male. Not only that. From a total of fifteen members of the Executive Management only four are females while eleven are males. The Board of Directors of seven has four males and three females.

UB is not a centre of excellence when it comes to gender equality. The Vice Chancellor, Prof. David Norris, is a male. Of his four-member Executive Management, three are men. Of its twenty-seven-member Council, which is headed by a male, Dr. Joseph Makhema, only about ten are females. Also, of the seven Vice Chancellors UB has had since 1982, only two, Prof. Kgomotso Moahi and Prof. Sharon Siverts, were women. It is also worth noting that Prof. Moahi only held the position on an acting basis.

At BMC, the positions of decision making are dominated by males. Though the Acting Chief Executive Officer, Dr. Boitumelo Mogome-Maseko, is a female, all eight Head of Department positions are held by males. BMC’s Board of Directors is also male dominated. Its Chairperson, Mr. Victor Senye, is male. Not only that. From a total of nine members, only one is female.

BTC’s Executive Management positions are in the hands of males, with only three women out of an Executive Management Team of thirteen. The Managing Director, Anthony Masunga, is male. Though the Board of Directors of eight is headed by a woman, Mrs. Lorato Baokgomo-Ntakhwana, it has five men and only three women. Though BOBS’s Managing Director, Mrs. M.B. Marobela, is a woman, the Management Team is male dominated. Of the six members, only two are females. The Standards Council is also male dominated, with only five of the twelve members being females.

At LEA, the positions of decision making are dominated by men. The Board of Directors is led by a male, Mr. Mokgethi F. Magapa, and it has four males and six females. The Executive Management, however, is male dominated, with six males and only three females. With its Board Chairperson, Dr. Gloria Somolekae, as a female, BAMB’s Board of Directors is gender balanced, with four males and four females. However, the same cannot be said about its Management Team of eight. Not only is it headed by a male, Mr. Leonard Morakaladi, it has five males and only three females.

CEDA fares terribly when it comes to gender parity with respect to the Board of Directors. Its chairperson, Dr. Alfred Tsheboeng, is a male. The Deputy Chairperson and all Committee chairpersons are males. However, CEDA deserves commendation because though the Chief Executive Officer, Mr. Thabo Thamane, is male, the Executive Management is gender balanced, with four males and four females.

BICA must be commended for gender parity in its leadership structures. In terms of its Council, its president, Ms. Gosego Motsamai, and her deputy are women. The Council has five men and six women. In terms of its Management, the Chief Executive Officer, Ms. Verily Molatedi, is a woman. The Management has six men and four women. Though they are supposed to demonstrate the importance of gender equality to the government, Botswana’s political parties’ structures are tainted with intolerable levels of gender inequality.

For instance, in the ruling Botswana Democratic Party (BDP)’s top six Central Committee (CC) positions, there is no female. In the whole CC of sixteen, only three are women. Even when making co-options into the CC, the party president did not attempt to balance the gender disparity. Of the five nominated members, only two were females. In its recent elections, the BDP Youth League continued its mother body’s poisoned legacy of marginalisation of women. The Chairperson and his deputy as well as the Secretary General and Treasurer are all males.

The opposition is no better. In the Botswana Congress Party (BCP) only two members from its top seven CC positions are females. From the CC of nineteen members only five are women. The Botswana National Front (BNF) is no better. Of its CC of ten members, only one, the Chairperson, Ms. Abigail Mogalakwe, was elected at the party’s last Congress in 2016. In fact, she was the only female contestant during the elections.

The Umbrella for Democratic Change (UDC) is worse. Of the leadership structure of eighteen, only two are women. The UDC has no woman in its top six positions. The aforesaid situation shows that, in Botswana, decision making positions in government, government agencies and directorates, parastatals, local authorities and organized groups are male dominated.

As I have argued before, if Botswana is to achieve the ideal of gender equality, such deliberate measures as a quota system or clear policy pronouncements on gender balance need to be considered, especially in government departments and parastatal organizations.
*Ndulamo Anthony Morima, LLM(NWU); LLB(UNISA); DSE(UB); CoP (BAC); CoP (IISA) is the proprietor of Morima Attorneys

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Understanding Botswana’s trade dispute resolution framework: Mediation

3rd November 2020

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, starting with mediation.

Just like arbitration, mediation is an Alternative Dispute Resolution (ADR) system. In mediation, a neutral third party called a mediator assists the disputing parties in resolving their dispute through facilitation.

Unlike in arbitration, a mediator does not make a binding decision. Professor Oagile Key Dingake puts it aptly when he says “the crux of the mediatory process is that it is the disputing parties themselves who, with the guidance of the mediator, find a solution to their dispute. The mediator facilitates resolution of disputes and does not impose a solution. He is not an advocate of either party and neither is he or she a judge (Individual Labour Law in Botswana 121).”

South Africa’s Court Annexed Mediation Rules (Reg 73 in GN R183 in GG 37448 of 18 March 2014) have a similar definition. Mediation is, therefore, by its nature voluntary and non-confrontational since it is not adversarial. The mediator, who is impartial and independent, helps the parties to settle their dispute (Chau 2007 JPIEE 43).

In terms of section 2(1) of the Act “mediation includes facilitation, conducting a fact-finding exercise, and the making of an advisory award.”  The Act provides for mediation of disputes between employees and employers in the workplace. In terms of Section 6(1) of the Act, a party may refer such a dispute to the Commissioner of Labour or a Labour Officer delegated by the Commissioner and in terms of section 6(2) of the Act such referral has to be made within thirty days if the dispute concerns termination of contract.

In terms of section 7(1) of the Act, a mediator is then required to mediate the trade dispute within thirty days of its referral though in terms of section 7(2) of the Act such period may be extended if the parties agree or if that is provided for in a Collective Labour Agreement entered into by the parties.

If the trade dispute concerns the payment of an entitlement, in terms of section 6(7) of the Act the referral should be made within thirty days or a reasonable period from the date when the non-payment of the entitlement first came to the party’s knowledge or from the date when the party’s right to payment of the entitlement accrued, whichever is the earlier date.

In terms of section 7(3) of the Act, where a mediator fails to mediate the dispute within the stipulated period, the parties to the trade dispute may refer it to arbitration or to the Industrial Court and if they so choose, the mediator is, in terms of section 7(4) of the Act, required to explain the implications of the referral in detail to the parties before referring the trade dispute.

In terms of section 7(5) of the Act, the mediator is empowered to determine how the mediation should be concluded and may require further hearings to be held within the period referred to in section 7 (1).

In terms of section 7(6) of the Act, any statement made and any information divulged by a party to a trade dispute during mediation is regarded as confidential and without prejudice to the party unless the party states otherwise.

Therefore, subject to section 7 (6), in terms of section 7(7) of the Act, a party to a mediation process or any other person concerned in or present during the mediation, is prohibited from disclosing any statement made or any information divulged, to any person.

In terms of section 7(8) of the Act, a person who contravenes section 7 (7) commits an offence and is liable to a fine of P 2 000 or to imprisonment for 12 months or to both. Notwithstanding the time lines for referral and mediation of trade disputes, in terms of section 7(9) of the TDA, 2016, a mediator may, in terms of section 7(9) (b) of the Act, allow an application for the condonation of a late referral provided that the applicant shows good cause for such late referral.

In addition to this power, the mediator, still in terms of section 7(9) of the TDA, 2016, has the power to, in terms of section 7(9) (c) of the Act, dismiss a referral if the referring party fails to attend a mediation hearing.

In terms of section 7(9) (d) of the Act, the mediator also has the power to give a default award on any matter, except an award for reinstatement, if a party upon whom a referral has been served in terms of section 6(3) of the Act fails to attend a mediation hearing.

In terms of section 7(9) (e) of the Act, the mediator can also reverse, on good cause shown, any dismissal of a referral, or default award, contemplated under paragraphs (c) and (d) above respectively.

The mediator can, in terms of section 7(9) (f) of the Act, also recommend a settlement or, in terms of section 7(9) (g) of the Act, make an advisory award if the parties request so, or if it is in the interests of settlement to do so.

In terms of section 7(10) of the Act, it is mandatory that a default award made pursuant to section 7 (9) (d) of the Act should be confirmed or varied by the Commissioner after the expiry of the period referred to in section 7 (12).

In terms of section 7(11) of the Act, the requirements for the Commissioner to exercise this function are that there should be an ambiguity, error or omission in the default award. Any party affected by a dismissal of a referral or by a default award may, within 30 days of the date of the dismissal of the referral or the default award, apply to the mediator for the reversal, on good cause, or the dismissal of referral or the default award. In terms of section 7(12) of the Act, the party is of course required to give notice to the other party in whose favour the dismissal of the referral or the default award was made.

Where a settlement has been recommended to the parties by a mediator, in accordance with section 7 (9) (f), as per section 7(13) of the Act, the terms of the settlement agreement have the same force and effect as a judgment or order of the Industrial Court and can be enforceable in the same manner as such judgment or order.

In terms of section 7(14) of the Act, just like a settlement agreement, a default award by a mediator and confirmed by the Commissioner has the same force and effect as a judgment or order of the Industrial Court and is enforceable in like manner as such judgment or order.

This has been confirmed by the Court of Appeal, with Kirby J.P writing for the unanimous court, in the case of Veronica Moroka and 2 Others v The Attorney General and Another, Court of Appeal Civil Appeal No. CACGB-121-1.

In giving effect to the judgment, the Judge President of the Industrial Court, in terms of section 15(9) of the Act, issued Practice Directive No.1 of 2018 on Execution of Awards and Settlement Agreements under section 7(3) and (15) of the Act. The Practice Directive became effective on 10 September 2018.

In terms of section 7(15) of the Act, a party to a dispute may appeal to the Industrial Court in respect of a decision made in terms of section 7 (9) (a) (iii), (b) or (e). A mediator is not a compellable witness in any legal proceedings regarding anything said or information divulged during mediation.

The mediator is, however, required to provide the Industrial Court with a form, prescribed by the Minister and signed by the referring party, setting out the claims that the referring party had referred for mediation and the claims that were mediated on.

In terms of section 7(16) of the Act, this is to enable the Industrial Court to establish whether or not it has jurisdiction to hear the matter. Subject to section 7 (18) of the Court, the mediator is, in terms of section 7(17) of the Act, required to issue a certificate of failure to settle if the trade dispute is not settled within the period prescribed under section 7 (1) or (2).

The mediator may issue a certificate of failure to settle before the expiry of the period prescribed under section 7 (1) or (2) if he or she is satisfied that there are no prospects of settlement at that stage of the trade dispute. Following this, either party may, in terms of section 7(18) of the Act, refer the trade dispute to the Industrial Court for adjudication.

*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 anmorima@gmail.com anmorima@gmail.com

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Understanding Botswana’s trade dispute resolution framework: Litigation

26th October 2020

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  anmorima@gmail.com

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Understanding Botswana’s trade dispute resolution framework: Industrial Action

19th October 2020

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 second leg of Botswana’s trade dispute resolution framework-arbitration. In this article, we discuss the third leg, namely industrial action.

Industrial action is generally defined as a situation where the employer and employees use their bargaining power to exert pressure on the other to achieve a particular result. It entails such things as strikes and lockouts.  In terms of section 2(1) of the Act, Industrial action means “a strike, lockout or action short of a strike, in furtherance of a trade dispute”.

In terms of section 2(1) of the Act, “a strike means the cessation of work by a body of employees in any trade or industry acting in combination or under a common understanding or a concerted refusal or a refusal under a common understanding by such body of employees to continue work.”

A lock-out is the employees’ equivalent of a strike. In terms of section 2(1) of the Act, a lock-out is defined as “ the closing of a place of employment by an employer in any trade or industry or the suspension of work by such an employer or the refusal by such an employer to continue to employ any number of his or her employees in that trade or industry.”

While on a strike, employees use their numbers to inflict economic pain on the employer by withdrawing their labour, in a lock-out, the employer uses its power by not providing employees with work, thereby inflicting economic harm on them in terms of the ‘no-work, no pay’ principle.
In terms of section 2(1) of the Act, an action short of a strike means “any method of working (other than the method of working commonly known as working to rule) undertaken by a body of employees in any trade or industry acting in combination or under a common understanding, which method of working slows down normal production or the execution of the normal function under their contracts of employment, of the employees undertaking such method of working.”

In terms of section 42(1) (a) of the Act, it is obligatory to refer a dispute of interest for mediation before resorting to a strike or lockout. Also, in terms of section 42(1) (b) of the Act, a party must give the other party a 48-hour notice before the commencement of a strike or lockout. In terms of section 43(1) of the Act, before a strike or lockout commences, the parties have to agree on the rules regulating the action, failing which the mediator must determine the rules in accordance with any guidelines published in terms of section 53 of the Act.

These rules include those concerning the conduct of the strike or lockout and any conduct in contemplation or furtherance of the strike or lockout including picketing and the use of replacement labour. In terms of section 43(2) of the Act, the latter is, however, subject to the provisions of subsection (4) of the Act.

Employers are not allowed to engage replacement labour if the parties have concluded an agreement on the provision of a minimum service. In terms of section 43(3) of the Act, such prohibition also applies if no minimum service agreement is concluded within 14 days of the commencement of the strike or lockout.

In terms of section 43(4) of the Act, a trade union is allowed to picket outside the employer’s premises during a strike or lockout if the parties have concluded an agreement on the provision of a minimum service or if no such agreement is concluded within 14 days of the commencement of the strike or lockout.

The Act prohibits strikes and lockouts that do not comply with the aforesaid provisions or an agreed procedure. The prohibition also applies if the strike or lockout is in breach of a peace clause in a collective labour agreement.

In terms of section 45(1) of the Act, strikes or lockouts are also regarded as unprotected if the subject matter of the strike or lockout is not a trade dispute, is regulated by a collective labour agreement, is a matter that is required by the Act to be referred for arbitration or to the Industrial Court for adjudication, or is a matter that the parties to the dispute of interest have agreed to refer for arbitration.

In terms of section 47 of the Act, employees in essential services are not allowed to take part in a strike. Similarly, employers in essential services are not allowed to take part in a lockout. It is, however, worth noting that, although an essential service employee who engages in a strike commits an offence and is, in terms of section 48(1) of the Act, liable to a fine not exceeding P 2 000 or to imprisonment for a term not exceeding 12 months, or to both, there is no punishment for an essential service employer who locks out its employees.

In terms of section 48(2) of the Act, the punishment applicable to an essential service employee who engages in a strike, is also applicable for any person who causes, procures, counsels or influences any essential service employee to engage in a strike.

Where there is a trade dispute involving parties in an essential service, it should be reported to the Commissioner by an organisation acting on behalf of the employer, employers or employees. The provisions of section 6(3) apply in respect of a report of the trade dispute made in accordance with section 6 (1).

Where a trade dispute is reported in accordance with that section, it is deemed to have been reported to the Commissioner under section 6. Where there is failure to settle a trade dispute reported to the Commissioner in accordance with section 6 (2) within 30 days from the day on which the trade dispute was reported, the Commissioner may immediately refer the trade dispute to an arbitrator if the dispute is a dispute of interest, except in the case of a collective dispute of interest where the employees are represented by a trade union, or to the Industrial Court if the trade dispute is a dispute of right.

*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 HYPERLINK “mailto:anmorima@gmail.com” anmorima@gmail.com

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