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Understanding Botswana’s 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 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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DIS Parley Committee selection disingenuous 

25th November 2020

Intelligence and Security Service Act, which is a law that establishes the Directorate of Intelligence and Security Service (DIS), provides for establishment of a Parliamentary Committee. Recently, the President announced nine names of Members of Parliament he had appointed to the Committee.

This announcement was preceded by a meeting the President held with the Speaker and the Leader of Opposition. Following the announcement of Committee MPs by the President, the opposition, through its leader, made it clear that it will not participate in the Committee unless certain conditions that would ensure effective oversight are met. The opposition acted on the non-participation threat through resignation of its three MPs from the Committee.

The Act at Section 38 provides for the establishment of the Committee to examine the expenditure, administration and policy of the Directorate. The law provides that the Parliamentary Committee shall have the same powers and privileges set out under the National Assembly (Powers and Privileges) Act.

On composition, the Committee shall consist of nine members who shall not be members of Cabinet and its quorum shall be five members.  The MPs in the Committee elect a chairperson from among their number at their first meeting.

The Members of the Committee are appointed by the President after consultation with the Speaker of the National Assembly and Leader of the Opposition in the National Assembly. It is the provision of the law that the Committee, relative to its size, reflect the numerical strengths of the political parties represented in the National Assembly.

The Act provides that that a member of the Committee holds office for the duration of the Parliament in which he or she is appointed.  The Committee is mandated to make an annual report on the discharge of their functions to the President and may at any time report to him or her on any matter relating to the discharge of those functions.

The Minister responsible for intelligence and security is obliged to lay before the National Assembly a copy of each annual report made by the Committee together with a statement as to whether any matter has been excluded from that copy in pursuance of the provision of the Act.

If it appears to the Minister, after consultation with the Parliamentary Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Directorate, the Minister may exclude that matter from the copy of the report as laid before the National Assembly.

So, what are the specific demands of the Opposition and why are they not participating in the Committee? What should happen as a way forward? The Opposition demanded that there be a forensic audit of the Directorate. The DIS has never been audited since it was set up in 2008, more than a decade ago.

The institution has been a law unto itself for a longtime, feared by all oversight bodies. The Auditor General, who had no security of tenure, could not audit the DIS. The Directorate’s personnel, especially at a high level, have been implicated in corruption.  Some of its operatives are in courts of law defending corruption charges preferred against them. Some of the corruption cases which appeared in the media have not made it to the courts.

The DIS has been accused of non-accountability and unethical practices as well as of being a burden on the fiscus.  So, the Opposition demanded, from the President, a forensic audit for the purpose of cleaning up the DIS.  They demand a start from a clean slate.

The second demand by the Opposition is that the law be reviewed to ensure greater accountability of the DIS to Parliament. What are some of the issues that the opposition think should be reviewed? The contention is that the executive cannot appoint a Committee of Parliament to scrutinize an executive institution.

Already, it is argued, Parliament is less independent and it is dominated by the executive. It is contended that the Committee should be established by the Standing Orders and be appointed by a Select Committee of Parliament. There is also an argument that the Committee should report to Parliament and not to the President and that the Minister should not have any role in the Committee.

Democratic and Parliamentary oversight of the intelligence is relatively a new phenomenon across the World. Even developed democracies are still grappling with some of these issues. However, there are acceptable standards or what might be called international best practices which have evolved over the past two or so decades.

In the UK for instance, MPs of the Intelligence and Security Committee are appointed by the Houses of Parliament, having been nominated by the Prime Minister in consultation with the Leader of the Opposition. This is a good balancing exercise of involvement of both the executive and the legislature. Consultation is taken for granted in Botswana context in the sense that it has been reduced to just informing the Leader of Opposition without much regard to his or her ideas; they are never taken seriously.

Furthermore, the current Committee in the UK has four Members of the ruling party and five MPs from the opposition. It is a fairly balanced Committee in terms of Parliamentary representation. However, as said above, the President of Botswana appointed six ruling party MPs and three from the opposition.

The imbalance is preposterous and more pronounced with clear intentions of getting the executive way through the ruling party representatives in the Committee. The intention to avoid scrutiny is clear from the numbers of the ruling party MPs in the Committee.

There is also an international standard of removing sensitive parts which may harm national security from the report before it is tabled in the legislature. The previous and current reluctance of the executive arms to open up on Defence and Security matters emanate from this very reason of preserving and protecting national security.

But national security should be balanced with public interest and other democratic principles. The decision to expunge certain information which may be prejudicial to national security should not be an arbitrary and exclusive decision of the executive but a collective decision of a well fairly balanced Committee in consultation with the Speaker and the minister responsible.

There is no doubt that the DIS has been a rogue institution. The reluctance by the President to commit to democratic-parliamentary oversight reforms presupposes a lack of commitment to democratization. The President has no interest in seeing a reformed DIS with effective oversight of the agency.

He is insincere. This is because the President loathes the idea losing an iota of power and sharing it with any other democratic institution. He sees the agency as his power lever to sustain his stay in the high office. He thought he could sanitize himself with an ineffective DIS Committee that would dance to his tune.

The non-participation of the opposition MPs renders the Committee dysfunctional; it cannot function as this would be unlawful. Participation of the opposition is a legal requirement. Even if it can meet, it would lack legitimacy; it cannot be taken seriously. The President should therefore act on the oversight demands and reform the DIS if he is to be taken seriously.

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The Maccabean Uprising

25th November 2020
Jewish freedom fighters

 Jews drive away occupying power under the command of guerrilla leader Judas Maccabees but only just

Although it was the Desolation Sacrilege act, General Atiku, that officially sparked the Maccabean revolt, it in truth simply stoked the fires of an already simmering revolution. How so General?

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Atomic (CON)Fusion

25th November 2020

For years I have trained people about paradigm shifts – those light-bulb-switch-on moments – where there is a seismic change from the usual way of thinking about something to a newer, better way. 

I like to refer to them as ‘aha’ moments because of the sudden understanding of something which was previously incomprehensible. However,  the topic of today’s article is the complete antithesis of ‘aha’.  Though I’d love to tell you I’d had a ‘eureka ‘, ‘problem solved’ moment, I am faced with the complete opposite – an ‘oh-no’ moment or Lost Leader Syndrome.

No matter how well prepared or capable a leader is. they often find themselves facing perplexing events, confounding information, or puzzling situations. Confused by developments of which they can’t make sense and by challenges that they don’t know how to solve they become confused, sometimes lost and completely clueless about what to do.

I am told by Jentz and Murphy (JM) in ‘What leaders do when they don’t know what to do’ that this is normal, and that rapid change is making confusion a defining feature of management in the 21st century.  Now doesn’t that sound like the story of 2020 summed up in a single sentence?

The basic premise of their writing is that “confusion is not a weakness to be ashamed of but a regular and inevitable condition of leadership. By learning to embrace their confusion, managers are able to set in motion a constructive process for addressing baffling issues.

In fact, confusion turns out to be a fruitful environment in which the best managers thrive by using the instability around them to open up better lines of communication, test their old assumptions and values against changing realities, and develop more creative approaches to problem solving.”

The problem with this ideology however is that it doesn’t help my overwhelming feelings of fear and panic which is exacerbated by a tape playing on a loop in my head saying  ‘you’re supposed to know what to do, do something’. My angst is compounded by annoying motivational phrases also unhelpfully playing in my head like.

  • Nothing happens until something moves
  • The secret of getting ahead is getting started

and

  • Act or be acted upon

All these platitudes are urging me to pull something out of the bag, but I know that this is a trap. This need to forge ahead is nothing but a coping mechanism and disguise. Instead of owning the fact that I haven’t got a foggy about what to do, part of me worries that I’ll lose authority if I acknowledge that I can’t provide direction – I’m supposed to know the answers, I’m the MD!  This feeling of not being in control is common for managers in ‘oh no’ situations and as a result they often start reflexively and unilaterally attempting to impose quick fixes to restore equilibrium because, lets be honest, sometimes we find it hard to resist hiding our confusion.

To admit that I am lost in an “Oh, No!” moment opens the door not only to the fear of losing authority but also to a plethora of other troubling emotions and thoughts:  *Shame and loss of face: “You’ll look like a fool!” * Panic and loss of control: “You’ve let this get out of hand!” * Incompetence and incapacitation: “You don’t know what you’re doing!”

As if by saying “I’m at a loss here” is tantamount to declaring “I am not fit to lead.” Of course the real problem for me and any other leader is if they don’t admit when they are disoriented, it sends a signal to others in the organisation stating it’s not cool to be lost and that, by its very nature encourages them to hide.  What’s the saying about ‘a real man never asks for direction. ..so they end up driving around in circles’.

As managers we need to embrace the confusion, show vulnerability (remember that’s not a bad word) and accept that leadership is not about pretending to have all the answers but about having the courage to search with others to discover a solution.

JM point out that “being confused, however, does not mean being incapacitated.  Indeed, one of the most liberating truths of leadership is that confusion is not quicksand from which to escape but rather the potter’s clay of leadership – the very stuff with which managers can work.”

2020 has certainly been a year to remember and all indications are that the confusion which has characterised this year will still follow us into the New Year, thereby making confusion a defining characteristic of the new normal and how managers need to manage. Our competence as leaders will then surely be measured not only by ‘what I know’ but increasingly by ‘how I behave when I accept, I don’t know, lose my sense of direction and become confused.

.I guess the message for all organizational cultures going forward is that sticking with the belief that we need all-knowing, omni-competent executives will cost them dearly and send a message to managers that it is better to hide their confusion than to address it openly and constructively.

Take comfort in these wise words ‘Confusion is a word we have invented for an order not yet understood’!

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