Justice Tshepo Motswagole of the High Court yesterday dismissed Justice Monametsi Gaongalelwe‘s decision to preside over a matter, which was still alive in another court.
This followed a case at the Court of Appeal (CoA) in which the Botswana Public Employees Union (BOPEU) and Government wanted the execution and implementation of the orders and judgement granted by Motswagole on April 6, 2017 to be stayed pending appeal, which will be heard in October.
Motswagole had ruled that the Public Service Bargaining Council (PSBC) has the sole powers to negotiate and effect salary increments on behalf of all the public servants as opposed to the Government’s unilateralism on the matter.
He then granted an interim interdict which banned Government from continuing paying the three and four percent salary increase outside the auspices of the PSBC to those employees who are not members of the BOFEPUSU Acting Jointly Arrangement (BOFEPUSU AJA). He ordered the parties to return to court on May 24, where the interdict would be made a final court order or be withdrawn.
When the matter returned to court yesterday, Motswagole said it was wrong for Justice Gaongalelwe to preside over the case. He said the CoA judge should have sent the parties back to his court to allow the matter to be finalised.
Motswagole agreed with the Botswana Federation of Public, Private, Parastatals Sector Unions (BOFEPUSU) lawyer, Mboki Chilisa that Justice Gaongalelwe had no jurisdiction over the matter.
He said he regarded Justice Gaongalelwe’s judgement as just an opinion because the CoA was not properly constituted.
Representing BOFEPUSU in the matter at the CoA, Advocate Duma Boko had argued that the case ought to be heard by Motswagole before it could proceed to the CoA unless there were exceptional circumstances, which he said the appellants failed to prove.
However, Justice Gaongalelwe said the application met the requirement to go straight to the CoA and presided over the matter. He then granted Government and BOPEU their wish that those who have been enjoying the three percent continue until the appeal is heard in October. He said in the circumstances of the case, it was his considered view that the prejudice to be suffered by BOFEPUSU if stay is granted is far outweighed by the prejudice and inconvenience to be suffered by BOPEU and Government if the execution of the order of April 6 is carried out pending appeal.
Meanwhile, Motswagole extended the rule nisi and said the parties should try to resolve their issues and return to court on June 1, 2017.