The court of appeal (CoA) will on February 5 make a ruling in lawsuit in which government is appealing against a high court judgment last year that the decision to terminate secondment of trade union leaders to the latter's offices was unlawful.
State lawyers from the Attorney Generals chambers last week Friday struggled to convince a panel of three judges of the Court of Appeal that they have a strong case in an application for reversal of the decision interdicting the withdrawal of secondment of secretary generals of three public sector trade unions. The judges Isaac Lesetedi, Ian Kirby and Stephen Gaongalelwe grilled attorney Oteng Thamuku, who was assisted by Mabopiwa Unoda in a lengthy exchange that lasted the whole morning. In the end Thamuku was forced to concede numerous positions. At the commencement of the arguments the state lawyers abandoned their argument on section 9 of the State Proceedings act, which they said precluded the high court from granting a permanent interdict as it did.
She conceded that there was no hearing given to individual trade unions but maintained that meaningful consultation took place making a hearing unnecessary. She said the meeting that took place between BOFEPUSU and the employer was sufficient consultation despite that the individual trade unions and / or general secretaries were never consulted. Although she had earlier argued that local courts should adopt the position of the English law where she claimed that hearsay evidence can be admissible, she later abandoned the argument. Freund objected strongly to that proposition arguing that hearsay evidence cannot be accepted by court willy-nilly. She in turn agreed with court that in such a case the newspaper clippings, which the state had presented as part of the evidence, are inadmissible.
Justice Lesetedi took the union lawyer- Advocate Alec Freund appointed by Mboki Chilisa, to task expressing concern that the lower court made an order which was not being sought by the trade unions. It emerged that Justice Lot Moroka had made a final interdict when the trade unions had sought an interim interdict.
In terms of the recognition agreements between the Government and the respondent trade
unions, the unions may request the employer to second employees who have been elected
to hold office within the unions. Such requests were made and a number of employees were
seconded, including the employees elected as the general secretaries of the BLLAHWU, BTU
and BOSETU. On 30 August 2013 the DPSM sent letters to each of the trade unions asserting
that their respective general secretaries had breached the terms and conditions on which
they had been seconded and, on this basis, revoking their secondments with immediate
The state had raised three points on appeal, namely: that the high court erred in not
finding that consultation with the trade unions “would not have been meaningful”;
that the Court below was precluded by section 9 of the State Proceedings (Civil
Actions by or against Government or Public Officers) Act (Cap 10:01) (“the State
Proceedings Act”) from granting a permanent interdict; and that the high court
misdirected itself in (purportedly) deciding that an officer who is seconded to hold
office in a trade union is entitled to publically speak or demonstrate for or against
any politician or political party.
The high court found that DPSM did not give the trade unions an opportunity to make
representations before making the decision concerned. The high court then granted an order
declaring the decision of DPSM to withdraw the secondments unlawful; interdicting DPSM
from implementing her decision; and directing her to pay the costs.