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Understanding Botswanas trade dispute resolution framework: Mediation

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 Africas 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 partys knowledge or from the date when the partys 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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STRESS TEST

14th December 2022

We have come a long way from the 19th century, when mental un-healthiness was not recognised as treatable. In those days mental health problems were viewed as a sign of madness, warranting imprisonment in often merciless and unhygienic conditions; and with that backdrop you would think twice before calling in sick because of stress or admit feelings of hopelessness or depression but that’s changing. That may sound like good news but it’s not.

Reasons why employees don’t show up for work can vary, but one thing is for certain; an organisation relies on its staff to get things done and when employees don’t show up for work it disrupts organisational plans, takes up the valuable time from management and lowers the company’s productivity. It’s always been that people miss work for several reasons, some understandable and legitimate and others less so but it’s important that we know the reasons so that such situations can be better managed.

Today stress is one of the most common causes of long-term absence and is especially prevalent amongst office-based staff. This is also related to absence due to depression or anxiety. Is this indicative of where we are as a society, a sign of the times which is that people are constantly pressurised and have less work-life balance?

The British Museum houses a tablet which provides a peek into work-life balance in ancient Egypt. It documents how many sick days and why 40 workers took time off from their workplace in 1250 BC. All sorts of fascinating reasons have been given for why people were away from their work, including a note about someone named Buqentuf, who needed time off for embalming and wrapping the corpse of his dead mother.

There were other reasons like some workers, such as a man named Pennub, missed work because their mothers were ill.  Others had causes that we wouldn’t expect to hear as often today, such as men who stayed home to help around the house due to a “wife or daughter bleeding” – a reference to menstruation. But no mention of mental health, not because it didn’t exist, but it wasn’t labelled thus not reported.

What was reported was a person such as Aapehti who was said to have been ill on a regular basis and also took time off when he was “making offerings to god”.  Workers also took days off when they had to perform tasks for their superiors – which was apparently permitted in moderate amounts. For example, Amenmose was allowed time away from work when he was “fetching stones for the scribe:  And what about other employees who had to excuse themselves from work to brew beer, an activity which was associated with some of their gods and rituals.

All fascinating stuff which provides insight into life at that time. But what insights can we gather from today’s sick leave records? One study recently undertaken gives us insight into the UK police force’s absenteeism. Figures obtained through the Freedom of Information Act from police forces in the UK showed that the number of days absent due to mental health problems increased by 9% in one year, from 457,154 in 2020 to 497,154 in 2021.

And here is the shocker. Police have taken a record 500,000 days off due to mental health issues. Zoe Billingham, a former police inspector, suggested there was a greater prevalence of mental health issues among emergency services, due to what they faced during the pandemic of coronavirus. “Police and other frontline services have protected us during the pandemic,” she said. “The pandemic was a great unknown. People were really scared of dying and coming into contact with the virus, and a lot of people did.”

It is a ‘mental health epidemic’ among police. Alistair Carmichael, Home Affairs spokesman for the Liberal Democrats, said: “Frontline police officers do an incredible job serving their communities. But we know that the stress of policing can take a heavy toll on the mental health of officers, in some cases leading to burnout.

Let’s look at another group. A poll by Gallup reported that in the last three years, 75% of young adults aged 18–22 have left their jobs because of stated mental health reasons. This study showed that employees (millennials and Gen Z) want employers who care about their wellbeing. Contributing factors to mental health stress centre around increases in uncertainty and include: Hybrid work environments and the side-effects: no socialization, no end time, no feedback, caring for others; changing rules around work often with poor communications & clarity;  inconsistency & incompleteness of rule implementation:  Uncertainty from these and other factors leads to anxiety and depression.

 

The real story here is not that burnout, stress, depression and anxiety are becoming the number one reasons for absenteeism but that for a large part they are preventable. We have the data telling us it’s the problem but still organisations are doing very little to proactively manage it. Sure, we have counselling services for staff who are struggling and wellness days to reinforce feelings of wellbeing, but this is not enough.

If we start caring and developing work cultures that do not create unintentional stress through how work gets done, that will go a long way to change the status quo. Simple things like ensuring your culture doesn’t thrive on fire drills and heroics to get things done and that emails do not come with expected responses after hours or over the weekend. If we can stop managers bullying, yelling or losing their cool when there is a performance or customer issue and begin giving people more control over their work – all of these are the kinds of stuff that contribute to weakened mental health and absenteeism.

To sum up, your staff’s stress levels are directly proportional to your business’s absentee levels.  Ergo, lowering the former, will also reduce the latter.  Stress down, productivity up and everybody wins out.

QUOTE

Contributing factors to mental health stress centre around increases in uncertainty and include: Hybrid work environments and the side-effects: no socialization, no end time, no feedback, caring for others; changing rules around work often with poor communications & clarity;  inconsistency & incompleteness of rule implementation:  Uncertainty from these and other factors leads to anxiety and depression.

 

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Diana Irks Queen

14th December 2022
I

In September 1978, General Atiku, Princess Diana had enrolled for a cookery course. That same month whilst she was staying at her parents’ home in Norfolk, her friends innocently asked about the health of her father  John Spencer, the 8th Earl. Hitherto, the Earl’s health had never been a matter of concern but Diana somewhat inscrutably voiced a somewhat portendous outlook. “He’s going to drop down in some way,” she said.  “If he dies, he will die immediately;  otherwise he’ll survive.”  

It came to pass,  General. The following day, the telephone bell rang to the news that her father had collapsed in the courtyard of his Althorp Estate residence and that he had been rushed to a nearby hospital after suffering a massive cerebral haemorrhage. The medical prognosis was bleak:  Earl Spencer was not expected to survive the night. Writes Andrew Morton in Diana Her True Story: “For two days the children camped out in the hospital waiting-room as their father clung on to life. When doctors announced that there was a glimmer of hope, Raine [second wife] organised a private ambulance to take him to the National Hospital for Nervous Diseases in Queen Square, Central London, where for several months he lay in a coma.”

Raine was so fiercely protective of her beloved husband that she had the nurses see to it that his own children did not come near him in this critical condition in his elitist private room.  ‘I’m a survivor and people forget that at their peril,” she would later tell a journalist. “There’s pure steel up my backbone. Nobody destroys me, and nobody was going to destroy Johnnie so long as I could sit by his bed – some of his family tried to stop me – and will my life force into him.” But if Raine had steel in her, General, so did the implacable Spencer children, more so the eldest of them all.  “During this critical time,” Morton goes on, “the ill feeling between Raine and the children boiled over into a series of vicious exchanges. There was iron too in the Spencer soul and numerous hospital corridors rang to the sound of the redoubtable Countess and the fiery Lady Sarah Spencer [the Earl’s firstborn child] hissing at each other like a pair of angry geese.”

As Diana had correctly predicted, her father was not destined to die at that juncture but healthwise he was never the same henceforth. First, he suffered a relapse in November that same year and was moved to another hospital. Once again, he teetered on the brink. He was drifting in and out of consciousness and as such he was not able to properly process  people who were visiting him, including his own daughters when nurses relented and allowed them in. Even when he was awake a feeding tube in his throat meant that he was unable to speak. Understandably, Diana found it hard to concentrate on the cookery course she had enrolled in a few days before her father suffered his stroke.

But Raine, General,  was determined that her husband survive come rain or shine. Morton: “When his doctors were at their most pessimistic, Raine’s will-power won through. She had heard of a German drug called Aslocillin which she thought could help and so she pulled every string to find a supply. It was unlicensed in Britain but that didn’t stop her. The wonder drug was duly acquired and miraculously did the trick. One afternoon she was maintaining her usual bedside vigil when, with the strains of Madam Butterfly playing in the background, he opened his eyes ‘and was back’. In January 1979, when he was finally released from hospital, he and Raine booked into the Dorchester Hotel in Park Lane for an expensive month-long convalescence. Throughout this episode the strain on the family was intense.”

Altogether, Earl Spencer had been in hospital for 8 straight months. The lingering effects of the stroke left him somewhat unsteady on his feet when he escorted his daughter down the aisle at St. Paul’s Cathedral in 1981 for her marriage to the Prince of Wales.

 

R.I.P. EARL SPENCER

 

It was not until March 29, 1992, General, that Earl Spencer finally gave up the ghost. He was admitted in hospital for pneumonia but what killed him days later was a heart attack. Rumours of his death actually began to make the rounds the day before he passed on. At the time, Diana was on a skiing holiday in the  Austrian Alps along with  her estranged hubby Prince Charles and their two kids William and Harry.

When Diana was told of her dad’s death, she insisted that under no circumstances would she return to England on the same flight as Charles, with whom she was barely on talking terms. “I mean it, Ken,” she told her body minder Ken Wharfe. “I don’t want him with me. He doesn’t love me – he loves that woman [Camilla]. Why should I help save his face? Why the bloody hell should I? It’s my father who has gone. It’s a bit bloody late for Charles to start playing the caring husband, don’t you think so?”

Naturally, General, Charles was alarmed, particularly that his efforts to use one of his right-hand-men to reason with the Princess had been rebuffed. He therefore  prevailed over Wharfe to try and ram sense into his wife. “Lord Spencer’s death was a major news story,” writes Ken Wharfe,  “and if the Prince and Princess did not return to Britain together then nothing, not even compassion for the grief-stricken Diana, would stop the journalists from going for the jugular. The truth about the Waleses would be immediately and blindingly obvious to the most naive journalist … Returning to the Princess’s room, I told her bluntly that this was not a matter for debate. ‘Ma’am, you have to go back with the Prince. This one is not open for discussion. You just have to go with it’.’’

At long last persuaded, General, Diana said, “Okay Ken, I’ll do it. Tell him I’ll do it, but it is for my father, not for him – it is out of loyalty to my father.” But what in truth got Diana to change tack was the intervention of the Queen, who personally called her at Charles’ own request. That, however, General, was only as far as Diana was prepared to play ball: as far as engaging with Charles in conversation was concerned, that was simply inconceivable. “There was an icy silence for the rest of the two-hour journey,” writes Wharfe. “Nothing was said during the entire flight. The Princess did not want to speak to her husband and he, fearing a furious or even hysterical outburst, did not dare even to try to start a conversation. Whatever the discomforts of the journey, however, it was soon clear that the PR spin had worked. The next day it was reported that Prince Charles was at Diana’s side in her hour of need. Yet as soon as the Prince and Princess arrived at Kensington Palace they went their separate ways – he to Highgrove, and she to pay her last respects to her father.”

Lord Spencer was 68 when he died. He was a remote descendant of King Henry VIII.

 

PRINCE CHARLES FINALLY OWNS UP TO ADULTERY WITH CAMILLA

 

In June 1994, when Diana and Charles had been separated for exactly one-and-half years, Prince Charles was interviewed in a BBC documentary by Jonathan Dimbleby. The interview was billed as intended to mark Charles’ 25 anniversary as Prince of Wales but it was in truth a not-to-cleverly-disguised riposte to Diana Her True Story, the highly controversial 1992 collaboration between Diana and Andrew Morton.

In the interview, which was watched by 13 million people, Charles, General, openly admitted for the first time that he had committed adultery with Camilla Parker-Bowles, who he hailed as, “a great friend of mine who has been a friend for a very long time and will continue to be a friend for a very long time”. Diana had been requested to feature in the interview alongside her husband but she parried the overture on the advice of her aides, which was spot-on as she would have been greatly embarrassed by her hubby’s unsavoury confession in her own face and on national television.

The Prince’s candid confessional was followed weeks later by a book titled The  Prince of Wales: A Biography, which was written by the same Jonathan Dimbleby. The book was even frankier than the interview. In it, Charles put it bluntly that she had never once loved Diana and that he married her only because he was coerced into doing so by his  notoriously overbearing father. Charles also made it known that as a child, he had been bullied by his abusive father, virtually ignored by his mother, and persecuted by a wife he portrayed as both spoiled and mentally unstable.   Both Diana and his parents were revolted by the bare-knuckle  contents of the book though Dana need not have been irked considering that it was she herself who had fired the first salvo in the Morton book.

 

BASHIR INTERVIEW BODES ILL FOR DIANA

 

If Diana’s collaboration with Morton was a miscalculation, General, Prince Charles’ Dimbleby interview was equally so. For in November 1995, the wayward Princess hit back with her own tell-all interview on BBC’s  current affairs programme called Panorama. “She wanted to get even with Prince Charles over his adulterous confession with the Dimbleby documentary,” writes Paul Burrell, her final butler, in A Royal Duty.

The interview was conducted by journalist Martin Bashir who was attached to BBC, and was watched by 23 million people,  conferring it the distinction of having attracted the largest audience for any television documentary in broadcasting history. In the interview, Diana voiced concern about there having been “three of us in this marriage and so it was  a bit crowded”, the intruder obviously being Camilla. Diana also gave Charles a dose of his own medicine by confessing to her own adulterous relationship with James Hewitt, of whom she said, “Yes, I adored him, yes, I was in love with him”. Hewitt had at the time documented his affair with Diana in lurid detail in a best-selling book and Diana thought he had ill-conceivedly stabbed her in the back.

And as if to rub salt into the wound, General, Diana cast serious  doubts on her husband’s fitness to rule as future King and therefore his eventual accession to the British throne.   Unfortunately for her, the interview sealed her fate  in so far as her marriage was concerned. “In her headstrong decision to co-operate with Bashir,” says Burrell, “she had never considered, perhaps naively, the implications that Panorama had for her marriage.” Indeed, just four weeks after the interview, the Queen, after consultation with the Prime Minister and the Archbishop of Canterbury, wrote personally to both the Prince and Princess of Wales requesting that they divorce sooner rather than later.

It was a dream-come-true for at least two parties to the triangle, namely Charles and Camilla. But did it also constitute music to the ears of Princess Diana too, General?

 

Pic Cap

SOWING THE WIND ONLY TO REAP THE WHIRLWIND: Martin Bashir interviews Princess Diana in a BBC documentary which aired on Monday 29 November 1995. The interview incensed the Windsors: the following month, Queen Elizabeth ordered Charles and Diana to sever matrimonial ties. In her vengeful resolve to hit back at her husband following his own interview the previous year, Diana had foolishly sown the wind and reaped the whirlwind.

NEXT WEEK: DIANA REVERTS TO SINGLENESS

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Rights of an Individual in Islam

14th December 2022

Islam is a way of life completed and perfected by the last and final Messenger of Allah, Prophet Muhammad (pbuh). The Holy Quran along with the practical teachings of the Prophet (pbuh) forms the basis of Islamic law, social, economic and political systems of Islam – in short the basis of a complete code of conduct for the entire life of a Muslim

Regrettably in this day and age there are certain views in non-Muslims that have a very negative ‘view’ of Islam. The bottom line is that if a Muslim says that two plus two is four, others can ‘argue’ to say three plus one is four, or two times two is four or the square root of 16 is four. The bottom line is no matter what we may think we all are ‘correct’. The fact is that we are all on this earth for a ‘limited’ time. Regardless of beliefs, tribe, race, colour or our social standing in life, we will all die one day or the other and we will “all” be called up thereafter to answer for our behaviour, beliefs, and our life on this earth.

To a Muslim the Holy Quran is the Divine Revelation which is all encompassing and lays down in clear terms, how we should live our daily lives including the need for humans to allow fellow humans certain basic rights at all times. Due to the limited space available I can only reflect on some of the major fundamental rights laid down by Islam:

Right to life

The first and foremost of fundamental basic human-rights is the right to life. “Whosoever kills any human being (without any valid reason) like manslaughter or any disruption and chaos on earth, it is though he had killed all the mankind. And whoever saves a life it is though as he had saved the lives of all mankind” (Quran Ch5: v 32). It further declares: “Do not kill a soul which Allah has made sacred except through the due process of law” (Quran Ch6: v 151). Islam further explains that this sacrosanct right to life is not granted only to its adherents (believers), but it has been granted to all human beings without consideration of their religion, race, colour or sex

Right to Equality 

The Holy Quran recognises equality between humans irrespective of any distinction of nationality, race, colour or gender. “O Mankind We have created you from a male and female, and We made you as nations and tribes so that you may be able to recognise each other (not that you may despise each other). Indeed the most honourable among you before God is the most God-conscious”. (Quran Ch49: v 13). The Prophet Muhammed (pbuh) further explained this: “No Arab has any superiority over a non-Arab, nor does a non-Arab have any superiority over an Arab…… You are all the children of Adam and Adam was created from soil”. If there is any superiority for a man it is based on his piety, righteousness, sense of responsibility and character. Even such a person with these noble qualities would not have any privileged rights over others.

Right to justice

Allah Almighty has bestowed on all human beings, believer or non-believer, friend or foe the right to justice.  The Holy Quran states: “We sent our messengers with clear teachings and sent down along with them the Book and the Balance so that society may be established on the basis of justice” (Quran Ch 57 : v 25). It further says “O Believers stand for the cause of God and as witness to justice and remember that enmity of some people should not lead you to injustice. Be just as it is nearest to God consciousness” (Quran Ch 5:v  8 ). This makes it obligatory that a believer must uphold justice in all circumstances, including to his enemies.

Right to freedom of conscience and religion

The Holy Quran clearly mentions that there is no compulsion in accepting or rejecting a religion. “There is no compulsion in (submitting to) the religion” (Quran Ch 2 : v 256). Every individual has been granted basic freedom to accept a religion of his or her choice. Therefore no religion should be imposed on a person.

Right to personal freedom

No person can be deprived of his or her personal freedom except in pursuance of justice. Therefore there cannot be any arbitrary or preventive arrest without the permission of duly appointed judge and in the light of a solid proof.

Right to Protection of Honour

Every person has been ensured basic human dignity which should not be violated. If someone falsely attacks the honour of a person the culprit will be punished according to the Islamic Law. The Holy Quran says: “Do not let one group of people make fun of another group”. It further states: “Do not defame one another”, the Quran goes on to say: And do not backbite or speak ill of one another” (Quran Ch 49  : v 11-12).

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