Three bulls in one kraal

SHARE   |   Monday, 24 April 2017   |   By Ditiro Motlhabane
Three bulls in one kraal

A courtroom packed to the rafters, an aging judge straining to catch every word uttered by advocates before him, and a marathon of lawsuits over a 3 % salary increase midweek, best describe a public service in crisis. Far from the arguments canvassed in court, observers are in agreement that the dispute is a power struggle for dominance by offspring BOPEU and her estranged parent BOFEPUSU fuelled by a state machinery hell bent on destroying trade unionism in Botswana. To buttress the point, ahead of the joint application for stay of Justice Tshepo Motswagole's judgment by BOPEU and government on Wednesday, the employer walked out of a Public Service Bargaining Council (PSBC) meeting on Tuesday refusing to negotiate. Government's refusal was based on a claim that BOFEPUSU's membership at PSBC had lapsed, the same argument by BOPEU in a failed attempt to block the negotiations at Francistown High Court a day earlier. There are murmurs in the legal fraternity that the route followed by BOPEU and government – disregarding High Court rules on seeking leave to appeal from the judge who decided the original case -raises eyebrows and smells of forum shopping. But legally, it appears there is nothing wrong with circumventing the process, which sometimes returns unfavourable outcome for the would-be appellants as in the Justice Tafa ruling in a leave application over the CoA judges' appointment. On Wednesday afternoon, Justice Monametsi Gaongalelwe of the CoA started hearing an application by BOPEU/DPSM seeking an order staying the execution of the judgment of Justice Motswagole and ordering that the appeal in the same matter be heard on urgency. A strong legal team of Dutch Leburu, Otto Itumeleng and Martin Dingake represented BOPEU while Advocate Timothy Bruinders and Joseph Akoonyatse appeared for DPSM with the federation and her four trade union members fielding a contingent led by Duma Boko.

Recusal request dismissed
First to take the stand was Boko, who immediately launched an application for recusal of Justice Monametsi Gaongalelwe, arguing that the recent judgment by Justice Abednigo Tafa amounts to a structural interdiction and thus disqualify the judge from hearing the matter. Gaongalelwe immediately dismissed the application, promising to deliver reasons at a later stage. However, it had long been clear that he disagreed with Boko's suggestion that he is conflicted in the matter. In a heated exchange, punctuated by slight jabs at each other, the judge brought to Boko's attention that Justice Tafa had suspended the operation of CoA judgment for six months to allow for relevant government arms to regularise the appointment of judges. "As far as I am concerned the six months period lapses sometime in August. The case by the union has brought to the fore mistakes of the past and Parliament, which you are part of, has moved to correct those by amending the law. We must thank the union for that," said Justice Gaongalelwe. But Boko was unmoved, insisting that notwithstanding what Parliament did he believes the judge, like his peers, is directly implicated by the Tafa decision and should recuse himself from the proceedings. In the event the judge ruled against the application, Boko appealed to his conscience to be alive to the position they hold on the matter as he presides over the application for stay of execution and an expedited appeal. He said despite being a Member of Parliament he does not agree with amendments made to the CoA Act, safe for prescribing the number of appeal judges as court ordered. "All else was an attempt to nullify the judgment by making provisions that apply retrospectively and I have made my position known to colleagues in the august house," said Boko. In response, Gaongalelwe said he was not part of the CoA case challenging the appointment of judges therein as he was neither an applicant nor a respondent. He reiterated that his appointment to the CoA bench is not on contractual basis and therefore should not be confused with those referred to in the Tafa judgment. At adjournment, some probably not acquainted with court process or biased by association, already declare victory for BOPEU, saying the federation lawyers had been fumbling. This, notwithstanding that Boko and his team were yet to respond to arguments put forward by the applicants.

BOPEU push for 3% increase
Leading the BOPEU application attorney Dutch Leburu quickly threw a sucker punch, drawing the attention of the court to Justice Motswagole's omission in issuing an interim order for compliance by the state, which he said contravenes State Proceedings Act. The Act states that any decision/judgment against government has to be allowed three months for its implementation. Both parties conceded the oversight and agreed that the matter be resolved administratively by bringing the said provision to the attention of Justice Motswagole to discharge the rule nisi. Leburu argued that his clients will suffer prejudice caused by Justice Motswagole's judgment, which nullified the salary increase of 2016/17. He said of the estimated 125 000 public servants, BOPEU represented 29 000 who have been enjoying the 3 % salary increment since April 2016 and are looking to start enjoying 4% this week. He said such salary adjustment had an impact on qualification for and deductions for medical aid cover, pensions, income tax, and other financial arrangements that employees entered into because of an improvement in their earnings. "As demonstrated, this will also affect the unborn as some expectant mothers may be cut off medical aid benefits when the increment is withdrawn. The complexity in management of the government payroll process is an expensive exercise where experts will have to be brought in from abroad to reverse the 3% already added to salaries only to be engaged a couple of months down the line to reinstate the increment should we be successful on appeal," said Leburu, adding that BOFEPUSU members do not stand to suffer any prejudice because they never enjoyed any salary increase. Adding to that, Advocate Bruinders said even in common sense BOFEPUSU cannot claim what they never had.

According to Leburu, PSBC should not be the only forum for negotiations and engagement with the employer. He said as a legally recognised trade union there should be a platform where they can be engaged because they have also entered into collective labour agreement with the employer. He said the current arrangement endorsed by Justice Motswagole's judgment will disenfranchise thousands of non-unionised employees, management cadres, disciplined forces and public officers whose trade unions are not part of the bargaining council. "It cannot be right that what BOFEPUSU says goes for everybody in the public service," said Leburu. He argued that the jury is still out and no definitive decision has been made on how the bargaining process should be undertaken, after Justice Harold Ruhukya of the Industrial Court and Justice Tshepo Motswagole of the High Court ruled differently on the interpretation of the constitution of the bargaining council. While Ruhukya ruled that the scope of the PSBC is restricted to only members who are party to it, Motswagole recently said decisions of the bargaining council – which has been established by the Public Service Act – affects all public servants and therefore decisions made therein bind all. BOPEU and the Directorate of Public Service Management (DPSM) have lodged an appeal on Motswagole's judgment, and pleaded with the judge to grant it urgency to expedite its hearing. "Another judge on appeal could find differently. We argue, on appeal, that we should not be bound by decisions of a forum we are not party to as the industrial court found. Therefore we pray for the stay of Motswagole's judgment pending the hearing and finalisation of our appeal," said Leburu.

Boko responds
On Thursday morning Boko spent hours opposing the stay application, insisting that no prejudice will be suffered by public officers who have been enjoying the unlawful 3%. He urged court to be wary of being dragged into perpetuating continuation of unlawful action by government. Punching holes in the BOPEU/DPSM submission, Boko dismissed their argument as mere allegations which are not supported by evidence. He said although DPSM has provided a list of public officers employed after the 3% increment, the applicants have failed to provide the same evidence to support their claim of prejudice that their members stand to lose some benefits or have made financial commitments. "It is for those who allege to suffer prejudice to demonstrate how they are disadvantaged by the decision of the High Court. They have to present factual evidence before this court to assist you (judge) to help them. We say, there are no facts in their papers, just unsubstantiated speculation about their members having made financial commitments," roared Boko, to a pin drop silence in the courtroom. Boko emphasised that the fight to continue enjoying the unlawful 3 % increase is calculated to destroy a forum set up by the PSA for bargaining and in the process discredit BOFEPUSU, leading to resignation of its members. This, he said, will be the effect of giving government an open cheque to increase salaries by any amount whenever s/he wishes disregarding the PSBC. "The prejudice here is that BOFEPUSU will lose members and eventually collapse as public officers follow the unlawful salary increase enjoyed by others," he said, further dismissing claims that the federation is trying to dictate terms for everybody in the public service. "It is the law. If you want anything different amend the law," he told BOPEU. Boko dismissed the argument about the complexity of manipulation of the government payroll system as a non-starter, which does not show prejudice because even if BOPEU/DPSM lose on appeal the same procedure will have to be carried out. Justice Gaongalelwe also made a comment that he also believes the same. Boko said BOPEU/DPSM had failed to demonstrate prospects of success on appeal and therefore their application should be thrown out, with costs. Judgment has been reserved for a later date.