The year of an 'executive minded' judiciary
Oarabile Mosikare | Friday December 20, 2013 14:39
The CoA led by Judge President Ian Kirby also ruled that the Industrial Court was right to declare as unlawful the participation of ESE in the strike. The unions were devastated. They even challenged the partiality of Justice Kirby who they described as ‘executive minded’.
This prompted the then Registrar and Master of the High Court Godfrey Nthomiwa to respond that BOFEPUSU’s statement bordered on contempt of court. He accused BOFEPUSU of personal and disrespectful attacks against members of the judiciary.
In a statement BOFEPUSU said: “We will in due course organise a seminar to look into the merits of the judgments. The demerits of the judgements recently delivered by the Court of Appeal, at which we will invite the leading public lawyers in Southern Africa to come and share their views on it.”
The federation said the view of advocate Martin Brassey, Senior Counsel, who was one of the first labour lawyers in South Africa, and appeared for the unions in the dismissals case, is that the judgement is wrong and government should be happy that the court is willing to deliver for it.
The view of Wim Trengove SC was that the judgment is wrong because it failed to engage with unions’ principal argument that the unions should have been given a collective hearing on government’s intention to resort to mass dismissals.
“The judgement fails to state why it was not reasonable to comply with this form of audi. Our view is that the judgement is littered with too many political statements that were not germane to the resolution of the dispute between the parties, and which are not supported by evidence that was led by the parties, e.g. the executive’s budgeting process; the economic recession; the suggestion that strikes in the public service should be a rare occurrence. There is no legal basis for the assertion that strikes in the public service should be a rare occurrence; it may be what the executive wants, but it is not supported by any legislative interventions because both the Trade Disputes Act, and the Public Service Act permit public servants to resort to industrial action in furtherance of any dispute of interest.”
But it was not all doom and gloom for the unions. In another case, Justice Lot Moroka nullified the decision of the then Directorate of Public Service Management (DPSM) director Festinah Bakwena to terminate organisational rights that unions had enjoyed until August 2011 when her controversial decision was to take effect. In declaring Bakwena’s decision null and void, Justice Moroka agreed with the union’s argument that the decision to terminate their organisational rights without giving them a hearing had rendered it unfair and unlawful.
The government is appealing the judgement and the CoA is scheduled to hear the appeal early next year. BOFEPUSU scored another victory against the government in a case in which the federation was de-registered in 2009.
Justice Michael Leburu was scheduled to hear the case but the government developed cold feet. When the case was called, no government attorney was in court to defend the decision of the Registrar of Trade Unions and Employers Organisation to cancel BOFEPUSU’s registration four years ago.
In the event of government’s non-appearance, Justice Leburu granted the application to BOFEPUSU, the Botswana Public Employees Union (BOPEU) and the National Amalgamated, Central and Local Government and Parastatal Workers Union (NACLGPWU) in terms of the draft order.
The registrar had struck BOFEPUSU off the roll saying it was registered by mistake or misrepresentation.
The development came after it was discovered that BOFEPUSU flouted the law because it was not formed through a secret ballot by constituent unions. Further, the then registrar Lesego Pule said that contrary to the law, she was not notified by any of the constituent unions of their intention to amalgamate 14 days before holding the ballot.
In addition, she was not furnished with a complete alphabetical list of the members eligible for voting, 14 days before the day on which the ballot was supposed to be held.
In another case, Justice Abednico Tafa granted BOFEPUSU an interim interdict against the Directorate of Public Service Management (DPSM) after the latter suspended the Public Service Bargaining Council (PSBC) last month.
Tafa found that BOFEPUSU had established the requirements to interdict DPSM director Carter Morupisi for his suspension of the PSBC. This means that Morupisi must go back to the table with BOFEPUSU for the 2013/14 salary negotiations.
A month ago, BOFEPUSU filed an urgent application before Justice Tshepo Motswagole in Lobatse to review the suspension of the PSBC by Morupisi.
Before the DPSM suspended the council, it claimed that it was disturbed by some members of the council who continue to make political statements contrary to the provisions of the Public Service Act.
The DPSM also claimed that the political statement made has the potential to interfere with or influence the activities of the council.