BDF yet to pay owed nurses

Kabo Ramasia | Monday November 25, 2024 12:59

The BDF is challenging the orders by Judge Lot Moroka of Francistown delivered on September 13, 2023 . The order indicated that the termination of the de-linking be and is hereby declared null and void and that the plaintiffs are entitled to be paid remuneration in terms of the delinking exercise. It further declared that each of the plaintiffs is entitled to be remunerated as per with their civilian counterparts who perform the same duties at the same level.

To counter this, the BDF has applied for a stay of execution of the Moroka judgement pending outcomes of the appeal lodged on December 6 2023. BDF argues that the court should judiciously exercise its discretion in assessing the prejudice or irreparable harm which the respondents (plaintiffs) stand to suffer if leave to execute were granted.

According to an affidavit deposited by Brigadier Anthony Seretse Dikeledi, Director Human Resource Management, BDF stands to suffer more prejudice. Dikeledi stated that should the court fail to indulge it in its stay of execution application, the respondents (army nurses) will benefit unfairly and undeservedly out of a court decision made against the law. “This decision will likely open floodgates of litigation to other equally circumstanced members or those who believe they are equally circumstanced. This will set a bad precedent for future litigants in the same shoes as the respondents,” reads Dikeledi’s affidavit.

BDF further contends that the decision to rule in favour of the army nurses to be remunerated at par with their civilian counterparts without due consideration of their peculiar circumstances to the BDF will undermine the intended discipline effect as an unwarranted element would remain in the force. BDF believes the court erred by “judging the army structure using civilian standards in matters of discipline and nomenclature without any legal basis.” According to the affidavit, the High court erred in usurping powers of the Executive arm of government in creating new policies through its orders.

A supporting affidavit by Colonel Jenamiso Mountain, Deputy Director Human Resource Management (Retention) rubber-stamped this stance. It states that the appeal has prospects of success despite its filling notice being out of time. Mountain reiterated that the BDF stands to suffer prejudice if the matter is not stayed pending the outcome of the appeal.

For their response, the military nurses, Joseph Tsima and 51 others argue that the judgement did not grant upon the applicant any time frame with which it had to be complied with. However, they posit that the BDF was in fact in contempt of court for failing to execute the court orders as given by Judge Moroka on September 13 2023.

“The reasonable period within which the applicant was expected to comply with the judgement was in October 2023. I say this because as at the date the judgement was passed, I expect that the salaries for the month of September would already have been finalized. The earliest opportunity for the applicant to comply with the judgement was in the salary for October 2023,” reads Tsima’s affidavit.

He further mentioned that the applicant, without any valid excuse nor order staying the execution of the judgement, elected not to give effect to the judgement of the court. This willful disregard of the order of the court amounts to the offense of contempt of court, he said. He thus noted that having acted contemptuously, the applicant has no right to seek any redress from the court until the contempt has been purged.

“The applicant decided not to give effect to the judgement of this court although no application for leave not to give effect to the judgment pending appeal was not sought,” further reads the court documents. According to the nurses, the applicant, ought to have approached the court earlier for permission not to effect the judgement, rather than be contemptuous of the judgement for nine months and come to court seeking stay of execution pending appeal. They stated that stay should be sought prior to any offending conduct, not after. Essentially, the respondents are convinced that the appeal has no prospects of success. The affidavit deposed by Tsima denies ythat the decision of this court was made contrary to the law. He said, even if it were, the BDF failed to spell out the violated law.

Regarding the notion that the case may open “floodgates” for litigation he said: “I am not aware of any members of the Botswana Defence Force who are similarly circumstanced with. Though there are many members of the Botswana Defence Force, not all of them are qualified and practicing nurses. I deny that the implementation of the judgment of this court will open any floodgates. In any event, litigation is considered and determined on its own merits.

The basis upon which it is alleged that the judgement of this court will undermine discipline in the Botswana Defence Force has not been spelt out. I am therefore constrained to respond to the allegation. However, I do not admit that the judgement will have the alleged effect.”

This is a 2020 case which entails military nurses who sued the BDF for remuneration and progression. The soldiers argued that the government unlawful terminated the de-linking exercise in 2019. The soldiers stated that delinking was to put their pay structure at par with civilian counterparts as well as ensure automatic progression not tied to ranks. The BDF nurses felt aggrieved that they could not benefit from the exercise hence challenging its legality.