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 email@example.com
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.
Youngest Maccabees scion Jonathan takes over after Judas and leads for 18 years
Going hand-in-glove with the politics at play in Judea in the countdown to the AD era, General Atiku, was the contention for the priesthood. You will be aware, General, that politics and religion among the Jews interlocked. If there wasn’t a formal and sovereign Jewish King, there of necessity had to be a High Priest at any given point in time.
Initially, every High Priest was from the tribe of Levi as per the stipulation of the Torah. At some stage, however, colonisers of Judah imposed their own hand-picked High Priests who were not ethnic Levites. One such High Priest was Menelaus of the tribe of Benjamin.
Parliament has rejected a motion by Leader of Opposition (LOO) calling for the reversing of the recent appointments of ruling party activists to various Land Boards across the country. The motion also called for the appointment of young and qualified Batswana with tertiary education qualifications.
The ruling party could not allow that motion to be adopted for many reasons discussed below. Why did the LOO table this motion? Why was it negated? Why are Land Boards so important that a ruling party felt compelled to deploy its functionaries to the leadership and membership positions?
Prior to the motion, there was a LOO parliamentary question on these appointments. The Speaker threw a spanner in the works by ruling that availing a list of applicants to determine who qualified and who didn’t would violate the rights of those citizens. This has completely obliterated oversight attempts by Parliament on the matter.
How can parliament ascertain the veracity of the claim without the names of applicants? The opposition seeks to challenge this decision in court. It would also be difficult in the future for Ministers and government officials to obey instructions by investigative Parliamentary Committees to summon evidence which include list of persons. It would be a bad precedent if the decision is not reviewed and set aside by the Business Advisory Committee or a Court of law.
Prior to independence, Dikgosi allocated land for residential and agricultural purposes. At independence, land tenures in Botswana became freehold, state land and tribal land. Before 1968, tribal land, which is land belonging to different tribes, dating back to pre-independence, was allocated and administered by Dikgosi under Customary Law. Dikgosi are currently merely ‘land overseers’, a responsibility that can be delegated. Land overseers assist the Land Boards by confirming the vacancy or availability for occupation of land applied for.
Post-independence, the country was managed through modern law and customary law, a system developed during colonialism. Land was allocated for agricultural purposes such as ploughing and grazing and most importantly for residential use. Over time some land was allocated for commercial purpose. In terms of the law, sinking of boreholes and development of wells was permitted and farmers had some rights over such developed water resources.
Land Boards were established under Section 3 of the Tribal Land Act of 1968 with the intention to improve tribal land administration. Whilst the law was enacted in 1968, Land Boards started operating around 1970 under the Ministry of Local Government and Lands which was renamed Ministry of Lands and Housing (MLH) in 1999. These statutory bodies were a mechanism to also prune the powers of Dikgosi over tribal land. Currently, land issues fall under the Ministry of Land Management, Water and Sanitation Services.
There are 12 Main Land Boards, namely Ngwato, Kgatleng, Tlokweng, Tati, Chobe, Tawana, Malete, Rolong, Ghanzi, Kgalagadi, Kweneng and Ngwaketse Land Boards. The Tribal Land Act of 1968 as amended in 1994 provides that the Land Boards have the powers to rescind the grant of any rights to use any land, impose restrictions on land usage and facilitate any transfer or change of use of land.
Some land administration powers have been decentralized to sub land boards. The devolved powers include inter alia common law and customary law water rights and land applications, mining, evictions and dispute resolution. However, decisions can be appealed to the land board or to the Minister who is at the apex.
So, land boards are very powerful entities in the country’s local government system. Membership to these institutions is important not only because of monetary benefits of allowances but also the power of these bodies. in terms of the law, candidates for appointment to Land Boards or Subs should be residents of the tribal areas where appointments are sought, be holders of at least Junior Certificate and not actively involved in politics. The LOO contended that ruling party activists have been appointed in the recent appointments.
He argued that worse, some had no minimum qualifications required by the law and that some are not inhabitants of the tribal or sub tribal areas where they have been appointed. It was also pointed that some people appointed are septuagenarians and that younger qualified Batswana with degrees have been rejected.
Other arguments raised by the opposition in general were that the development was not unusual. That the ruling party is used to politically motivated appointments in parastatals, civil service, diplomatic missions, specially elected councilors and Members of Parliament (MPs), Bogosi and Land Boards. Usually these positions are distributed as patronage to activists in return for their support and loyalty to the political leadership and the party.
The ruling party contended that when the Minister or the Ministry intervened and ultimately appointed the Land Boards Chairpersons, Deputies and members , he didn’t have information, as this was not information required in the application, on who was politically active and for that reason he could not have known who to not appoint on that basis. They also argued that opposition activists have been appointed to positions in the government.
The counter argument was that there was a reason for the legal requirement of exclusion of political activists and that the government ought to have mechanisms to detect those. The whole argument of “‘we didn’t know who was politically active” was frivolous. The fact is that ruling party activists have been appointed. The opposition also argued that erstwhile activists from their ranks have been recruited through positions and that a few who are serving in public offices have either been bought or hold insignificant positions which they qualified for anyway.
Whilst people should not be excluded from public positions because of their political activism, the ruling party cannot hide the fact that they have used public positions to reward activists. Exclusion of political activists may be a violation of fundamental human or constitutional rights. But, the packing of Land Boards with the ruling party activists is clear political corruption. It seeks to sow divisions in communities and administer land in a politically biased manner.
It should be expected that the ruling party officials applying for land or change of land usage etcetera will be greatly assisted. Since land is wealth, the ruling party seeks to secure resources for its members and leaders. The appointments served to reward 2019 election primary and general elections losers and other activists who have shown loyalty to the leadership and the party.
Running a country like this has divided it in a way that may be difficult to undo. The next government may decide to reset the whole system by replacing many of government agencies leadership and management in a way that is political. In fact, it would be compelled to do so to cleanse the system.
The opposition is also pondering on approaching the courts for review of the decision to appoint party functionaries and the general violation of clearly stated terms of reference. If this can be established with evidence, the courts can set aside the decision on the basis that unqualified people have been appointed.
The political activism aspect may also not be difficult to prove as some of these people are known activists who are in party structures, at least at the time of appointment, and some were recently candidates. There is a needed for civil society organizations such as trade unions and political parties to fight some of these decisions through peaceful protests and courts.