Public service employees will continue enjoying the three percent salary increase awarded by the Director of Public Service Management (DPSM) Ruth Maphorisa in 2016 and four percent adjustment recently announced by Permanent Secretary to the President (PSP) Carter Morupisi for 2017/18 financial year. This is according to a ruling by Court of Appeal (CoA) Judge Monametsi Gaongalelwe on Friday. The coalition between Government and Botswana Public Employees Union (BOPEU) won a temporary relief when Justice Gaongalelwe ordered the suspension of an earlier High Court order nullifying and blocking unilateral salary increases made by government. The 'stay of execution' of Justice Tshepo Motswagole's April 4 judgment means that management cadres, non-unionised public officers and those belonging to trade unions outside the Public Service Bargaining Council (PSBC) will enjoy a cumulative seven percent increase until an appeal challenging the decision is decided after October 2017. Refusing to recuse himself, Justice Gaongalelwe ruled that he was not directly implicated in the recent CoA Judges case, despite being cited as a respondent because he never participated, except for agreeing to comply with judgment. He dismissed arguments advanced to support the recusal application that he is likely to hold a grudge and be biased against Manual Workers Union and BOFEPUSU who were applicants in the CoA lawsuit, as flimsy and baseless.
According to Justice Gaongalelwe, the 29 000 BOPEU members and other public officers represented by DPSM are a sizeable number who will be adversely affected if the stay order is not granted. That fact alone creates exceptional circumstances, which the judge said justifies circumventing court process of filing leave to appeal in the lower court before motivating the stay application at the CoA. Justice Gaongalelwe concurred with BOPEU lawyers that salary adjustments have had an impact on qualification for medical aid cover, deductions for pensions and income tax, and other financial arrangements (e.g. loans) that employees entered into because of an improvement in their earnings and therefore reversal would have negative implications. He ruled that any prejudice to be suffered by BOFEPUSU members, who never enjoyed any salary increase since 2016, is far outweighed by that of BOPEU members who have been enjoying the three percent increment since April 2016 and have just started enjoying another four percent. Justice Gaongalelwe has further ordered that the appeal by DPSM and BOPEU against Justice Motswagole's judgment be heard in the October session. Even then the decision on the matter may not be delivered until the April 2018 session. Justice Motswagole had found that decisions affecting conditions of service and salaries of public officers made by the bargaining council, which has been established by the Public Service Act, affect and are binding to all public officers. BOPEU argues that their members should not be bound by decisions of a forum they are not party to, as the Industrial Court once ruled.
The stay of execution also discharges a rule nisi issued by Justice Motswagole, which was returnable on May 24 where government was to show cause why she cannot comply with the judgment.
While his comrades were openly celebrating the decision outside court BOPEU Secretary General, Topias Marenga, was guarded and diplomatic in his reaction to the ruling. He said although court has granted them what they wished for, which they fought on behalf of their members, he cannot celebrate because fellow workers in BOFEPUSU still do not enjoy the salary increment. "My mandate as a leader is to unite the working class and I cannot say I am happy that fellow workers are denied the benefit," he said. Justifying the lawsuit Marenga said BOPEU leadership has been mandated to fight any attempt to block the increment awarded by government, a resolution taken by the governing council in 2016. He explained that they have resolved to accept three percent increment and await anything that could come out of the bargaining council while enjoying what has been offered. On the other hand BOFEPUSU leaders said the ruling was expected. "Our struggle is a painful undertaking. The ruling is a minor setback but we will continue to fight for principle. The state is using all its apparatus to frustrate workers but we will not despair," said Tobokani Rari, the Secretary General. In a veiled attack after the ruling Johnson Motshwarakgole told an impromptu gathering of workers outside court that they will continue to call for independence of the judiciary. He said executive minded judges who make decisions that are pro-government are destroying the country by passing judgments calculated to please the current administration. "But this is to be expected when the Executive uses different platforms to award honours to sitting judicial officers, even though they are often litigants before the same judges. What have these judges done for the Executive? We can only guess what they are thanking them for," said Motshwarakgole.