The interim interdict issued by Industrial court judge Justice Tebogo Maruping last Monday has set BOFEPUSU on a back foot ahead of the hearing for arguments of the merits in the case next week Monday. Justice Maruping has set March 07 as the return date for the temporary order, after ruling in favour of BOPEU in an application to suspend 2016/17 salary negotiations for public servants at the bargaining council and make a final determination about who qualifies to sit at the forum. After the temporary order to freeze proceedings at the bargaining council, the parties are expected to file more replying papers during the week in preparation for arguments in court when the case resumes on 07 March 2016. But some legal experts opine that the Monday hearing will be a formality, considering the wording and tone of the interim order issued by the judge. BOFEPUSU faces a predicament because in the ruling on the temporary relief sought by BOPEU, Justice Maruping also dealt with the merits of the case and made a decision.
At page 87, under the heading Merits of The Application, he found that "if indeed BOFEPUSU is just a label for an acting jointly arrangement then it would probably not be recognised at the workplace and is therefore disqualified. The same would apply if the "F" in BOFEPUSU actually means federation because federations such as Botswana Federation of Trade Unions (BFTU) are not normally recognised at the workplace. Justice Maruping also found that "during argument it was clear to the court that the respondent was unable to give a satisfactory answer to this complaint of the applicant, other than to submit that the applicant never complained about this before its withdrawal from the acting jointly arrangement entered into in November 2011". Justice Maruping said the constitution of the bargaining council stipulates that there must be at least two or more admitted trade unions within an acting jointly arrangement, which means that the trade unions must be recognised at the workplace level and shall represent at least one third of the membership of all recognised trade unions whose members are public officers.
"Based on PSBC answering affidavit it would appear that all except one of these constituent trade unions of BOFEPUSU do not individually meet the one third requirement prescribed and therefore do not qualify for admission into the PSBC," ruled Justice Maruping. The interim order has divided the labour movement with some workers and other union leaders taking to social media to criticise BOPEU for dividing them and seeking to dismantle the federation. They said the judgment in favour of the union is a clear demonstration that BOPEU has a close relationship with the employer. Others congratulated BOPEU leaders saying they are fighting for principle, and should not watch from the sidelines while the federation leadership politicises the labour issues and derail workers from the working class ideology. The Secretary General for BOFEPUSU, Tobokani Rari, said if the court would finally confirm the order upon return to court on March 7th, this would effectively mean that no union stands eligible to be admitted into the PSBC including BOPEU safe for the Manual Workers Union. "We, however, would like not to delve into the merits as the case is on-going, if anything, the court order is the beginning of what we anticipate to be a long legal battle as we shall witness when parties return to court," he said.
On the other hand, Topias Marenga, the Secretary General of BOPEU, said they went to court to fight for principle as they could not allow an unlawful process to continue, simply because they have benefitted from it in the past. "We approached court and won what we sought after the judge agreed with our arguments that what is happening is wrong. If the law says a trade union should be admitted to PSBC, that’s what should happen. BOFEPUSU are the ones who have to convince the judge that they see things differently at the hearing on the March 07. We will await their arguments," he said, emphasising that parties should abide by the law and principle. He said notwithstanding that their membership is said to be currently at 26 000, which is below the threshold the law should be abided by. He said they went to court because they were excluded from the verification process by the other union party and the employer. He said BOFEPUSU was even going around in the media saying they have successfully blocked BOPEU from the bargaining council and in the process destroyed the union. "Because of all this talk, we needed clarification on the issue, hence the reason why we approached court," he said.
Marenga said if court confirms the interim order they will submit their membership for verification. He said should they fail to meet the threshold they will go back to recruit more members from the public service who remain outside trade unions to increase their numbers to meet the requisite threshold. He further dismissed accusations leveled at them, that they have caused delays in 2016/17 salary negotiations. "It is wrong that we delayed negotiations. Following 2014 mediation a resolution was taken by the trade union party that negotiations should start around September and October of the preceding year to allow for decision made at PSBC to be accommodated in the budgeting process. BOFEPUSU only submitted their proposal in the negotiations in November. This delay was not caused by us, they were already behind time," he said.