In this article, I argue that it is time for the Industrial Court of Botswana to consider levying court fees for all process filed with it as well as issuing costs orders in the same manner that the magistrates ‘courts, the High Court and the Court of Appeal do.
Before expanding this point, it is apposite that we give the possible reason why the Industrial Court neither levies court fees nor issues costs orders as a matter of cause. But before that, a brief history of the evolution of the Industrial Court will be useful.
As per Kirby JP in Veronica Moroka & 2 Others v The Attorney General and Another, Court of Appeal Civil Appeal No. CACGB-121-17 para 11 ( hereinafter referred to as “Veronica Moroka”), the original Trade Disputes Act (No. 19/1982) provided for disputes to be adjudicated, inter alia, by a Permanent Arbitrator.
In his book, Collective Labour Law in Botswana 23, Professor Justice Oagile Key Dingake states that the Industrial Court replaced the institution of the Permanent Arbitrator following the enactment of the Trade Disputes Act (No. 23/1997). According to the Veronica Moroka case supra, this Act came into force on 9th October 1997.
As per Kirby JP, in Veronica Moroka, 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, 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 which has inherent unlimited jurisdiction.
In terms of section 28(2) of the Trade Disputes Act, 2016, “A decision of the Industrial Court has the same force and effect as a decision of the High Court, and shall be enforceable in like manner as such a judgment or order.” Consequently, appeals from the Industrial Court lie with the Court of Appeal.
So, the Industrial Court was only established in 1997. Even then, it was not the Industrial Court as we know it today; it was a subordinate court. It only became a superior court as recently as 2002.
We now return to the issue of court fees and costs of suit, starting with the former. In my view, the fact that the Industrial Court started, first, as a Permanent Arbitrator, and became a mere statutory tribunal before becoming a subordinate court, may explain why it did not levy court fees.
This thinking cannot, however, be sustained because the magistrates’ court and the Land Tribunal have long levied court fees despite the fact that they are a subordinate court and statutory tribunal respectively.
That notwithstanding, it may well be that when the Industrial Court transitioned to a Court, an omission was made with respect to court fees. If that is the case, I submit that now that the Industrial Court is a superior court just like the High Court, it should consider levying court fees for all process filed with it.
This, in my view, will generate revenue for the government and the Court, which revenue can be used to develop the Court by, for instance, establishing more divisions, employing more judges and other personnel as well as publishing and printing its own labour law reports.
It is needless to state that this will assist with the reduction of case backlogs, something which has made some litigants lose confidence with the Court and justice in general.
Those opposed to this suggestion may argue that since the Industrial Court serves employees who may have no money following dismissals from work and small employers who may be struggling financially, it should not levy court fees.
While there may be merit in this argument, I believe that, in the wider scheme of things, the developments which may be brought by the revenue arising from payment of court fees may lead to more benefits for the litigants, including employees.
Also, the court fees that would be payable would be affordable since they are unlikely to exceed P 200.00 for all process required to be filed with and or out of court.
The Land Tribunal, which is not even a court, levies court fees of about P 10.00 when an appellant registers an appeal from a Land Board. Surely, the Industrial Court should, at the very least, be able to do the same, if not more.
Going back to the argument that the litigants lodging cases with the Industrial Court may have no money to pay court fees, it really has no merit because even those lodging cases with all other courts may have similar challenges but they still comply.
We now return to the issue of costs of suit. In terms of section 32(1) of the Trade Disputes Act, 2016, “ costs shall not be awarded by the Court except against a party held by the Court to have acted frivolously or vexatiously, or with deliberate delay in the bringing or defending of a proceeding.”
On the contrary, with respect to the magistrates’ court, the High Court and the Court of Appeal, costs follow the cause though the courts have a discretion in granting them. Therefore, ordinarily, a party that withdraws a case, has its case dismissed or loses a case pays the other party costs as a matter of cause. It is only punitive costs that are granted on an exceptional basis.
In my view, therefore, costs should be payable at the Industrial Court as a matter of cause in the same manner that they are payable at the other courts because the Industrial Court is a court, a superior court for that matter.
There is no reason why a magistrates’ court, which is a subordinate court, should be levying costs of suit as a matter of cause, while the Industrial Court, a superior court, only levies costs on an exceptional basis.
Because the Industrial Court seldom issues costs orders, some employees sometimes take hopeless cases to the court while some employers sometimes defend cases for the sake of delay only to offer settlement when the case is about to go for trial, sometimes after about two years.
This, they do because there is seldom a penalty for such conduct. The Industrial Court has, therefore, become a playground for some, something which makes it lose the respect it should be commanding as a court in the true sense of the word.
In my view, a costs order is a very useful tool for the court to censure undesirable litigation conduct. Without such a tool, the parties can conduct themselves in a manner that can be even detrimental to the very justice the court seeks to enforce.
That the Industrial Court is a court of law and equity, as provided by section 14(1) of the Trade Disputes Act, 2016, does not, in my view, mean that it should lower the bar even on matters that have nothing to do with equity.
In my view, payment of court fees and costs of suit have nothing to do with equity for as long as they apply equally to both parties before the court.
In my experience, it is this emphasis on equity, sometimes in a misdirected manner, that has resulted in the Industrial Court losing its esteem so much so that senior attorneys avoid appearing at the Industrial Court.
Not only that. The Court is often not able to attract senior attorneys to serve as judges, and the few it attracts often leave to go back to private practice or join the High Court.
*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 firstname.lastname@example.org
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.
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.
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.