BDF Commander reinstates unfairly dismissed soldier
Staff Writer | Monday November 25, 2024 12:30
After sitting on a court order directing the reinstatement of a soldier for almost six months, Segokgo reinstated Staff Sergeant Bigboy Opelo who was wrongfully dismissed in September 2022. The reinstatement was motivated by an application for contempt of court, which sought to see Segokgo and Attorney General behind bars if they did not comply within seven days. Opelo earlier in June this year convinced court that the decision of Colonel S.S. Chimbombi and the BDF, took on September 21, 2022, through a letter titled 'Medical Discharge- Yourself” be reviewed and set aside.
According to court papers, sometimes in August 2016, Opelo was injured whilst in the course and scope of his employment falling from an obstacle. “The injury was not life-threatening or major. I was given medical attention by and/or through my employer, the BDF, which resulted in surgery and light duty was recommended for me pending my full recovery. I verily swear and aver that I have since fully recovered from the injury,” Opelo stated in his affidavit of the main case. To further cement his case that he was fit, Opelo said on August 12, 2022, the BDF assigned him to escort the then Acting President Slumber Tsogwane. “I firmly aver that the BDF could not have deployed me to such a task of protecting and/or escorting the Acting President of the Republic when I was not fit and proper for military duty. I doubt that the BDF could be so reckless and cavalier to deploy a person who is medically unfit for military duty to protect and/or escort the 1st Citizen of the Republic,” he stated. He shared that on February 18, 2022, a letter was addressed to him to communicate that the BDF Medical Board had found him to be unfit to continue with military duty due to ill-health. The letter, he states further invited him to make representations and show cause why he may not be discharged from the BDF on medical grounds. Opelo stated that he responded to the effect that he disagreed with the employer's intention to be medically discharged because the injuries he suffered did not incapacitate him to perform his duties as a soldier. He also said since the injury, he had been doing Physical Proficiency Tests (PPT) and passed these tests as evidence that he was fit and proper in accordance with the BDF regulations. He also submitted that the medical board had made a finding based on reports when he was still recovering from his injuries and not what obtained at the material time, adding that proper procedure was breached and flouted. Justice Zein Kebonang, who presided over the matter, ordered that Opelo be reinstated to his employment and that he was retrospectively entitled to all emoluments and benefits from September 21, 2022 to the date of judgment.
Justice Kebonang had also ordered that, the BDF could if it so wishes, initiate or commence, the medical assessment of Opelo for purposes of determining his fitness to continue his employment or lack thereof. Such assessment was to be carried out externally and the findings of such an exercise would be shared with Opelo should they carry any adverse findings against him. Having waited in vain, Opelo, through his attorney Kago Mokotedi of Otto Itumeleng Law Chambers, has filed an urgent application with the Gaborone High Court for Segokgo and the Attorney General Mbako Abram to be held in contempt of the court order granted on June 4, 2024.
Opelo also wanted the respondents to be ordered to purge their contempt within seven calendar days from the granting of the order by retrospectively reinstating him to his employment in the Botswana Defence Force. In the event of failure to purge their contempt, he wants Chimbombi and Segokgo, be committed to prison for contempt of court for a period of 30 days. In his latest affidavit for the contempt case, Opelo avers that on July 4, 2024, at the expiry of the 30-calendar days stipulated in the court order, Attorney Kwapa representing Attorney General and the BDF informed his attorneys that he had been instructed to note an appeal against the order of Justice Kebonang. He states that on July 11, 2024, the Attorney General addressed a letter to his attorneys stating; 'In the meantime, we request your indulgence not to file a stay of judgment application and further request your undertaking that you will not enforce the Court Order pending the outcome of the appeal.' Opelo states that the indulgence sought was refused and his attorneys responded and stated that they are unable to give the indulgence sought and demanded that he be reinstated to work. “The respondents never came back and became mute to date. No stay was filed with either the High Court or the Court of Appeal despite being aware that the indulgence sought has been refused. Despite being aware of the Court Order, and having been served with same, the Commander and Attorney General have not complied with the Order by reinstating him to employment with the BDF. “The conduct, action and or inaction of the Commander has effectively rendered a valid order of this honourable Court a proverbial paper tiger. The BDF Commander has elected to ignore its existence and elected not to seek a stay of execution,” he wrote.
They argued that non-compliance of the court order is wilfully deliberate and malafide. The Commander and Attorney General non-compliance is surely intended to undermine the administration of justice and the authority of the court as a last arbiter. Opelo further submitted that the rule of law is stake and the BDF Commander, as an accounting officer of an important security institution in our constitutional democracy cannot be left to walk scot-free when he elects to ignore lawful court orders. He said it sends a wrong message to other accounting officers and society in general for the BDF Commander to ignore a court order. “I have served the BDF and my country for more than 30 years and the least that I deserve is to enjoy the fruits of a court order, which basically restored my dignity and worth as a human being. The embarrassment and unfairness I suffered at the hands of the BDF must come to an end with the implementation of the court order of the 04th of June 2024,” he stated. Appearing in court this past Wednesday, the BDF complied immediately and Opelo is expected back at work since Monday.