Two dismissed Botswana Energy Regulatory Authority (BERA) ex-board members have filed a suit against former Minister of Mineral Resources, Green Technology and Energy Security, Eric Molale.
The move comes after the members were suspended back in May 2019 over allegations of poor performance and were later dismissed. The duo, Sydney Mogapi and Marang Motswetla have filed their suit through Tshiamo Rantao of Rantao Attorneys.
It is stated that in August 2017 the duo signed respective contracts for the positions of executive board members of BERA to operate for five years in line with Section 10 of the BERA Act and their contracts were to expire on August 1, 2022.
However, it is stated that in May 2019 the duo received letters from the former minerals minister suspending them from their positions as board members pending an enquiry on their performance.
It further stated that on July 9, 2019 the duo received letters, which contained seven disciplinary charges that alleged the two ‘misconducted’ contrary to Section 11(2) (h) as read with section 11(3) (c) of the Act.
Attorney Rantao said misconduct is defined in Section 11(3) (h) as any act, done by a member without reasonable excuse which is prejudicial to the efficient carrying out of the functions of the authority or tends to bring the authority into disrepute.
He said it is therefore clear that for a charge to be valid it must state that an accused board member acted ‘without reasonable excuse’ as opposed to ‘unlawfully and without any legal justification or ‘without jurisdictional trigger’ of words to the same effect and other words used in the charges against our clients.
Rantao stated that the earlier phrase, which is a condition precedent for any charge under section 11(3) of the Act, has a materially different meaning from the phrases or words that were used in the charges against his clients.
He said the particulars of the charge are an imperative element of a disciplinary hearing as they lay out the factual matrix that gives to the enquiry and the subsequent action. He said they however
“The purpose of section 11 (3) (h) is to set parameters for what amounts to ‘misconduct’ insofar as the Act is concerned. These parameters are set for the Minister, as he or she is the one tasked with removing a member from office. The Minister acted ultra vires the Act by or alternatively by conducting a disciplinary hearing on the strength of a defective charge or alternatively on grounds not contemplated by the Act and dismissing our client based on a defective charge or alternatively on grounds not contemplated for by the Act,” argued Rantao.
He said in any event the facts before the enquiry clearly did not constitute the offence of misconduct contrary to section 11(20) (h) as read with section 11(3)(c) of the BERA Act. He stated that his clients were found guilty of six of the charges that were levelled against them.
Rantao said in five of these charges, the Minister solely relied on decisions of the Industrial Court or the High Court. He said according to the Minister this is because the court declared that the decisions taken by his clients were unlawful. He further said it is clear that the Minister did not make finding that the acts complained of were made with or without reasonable excuse and he did not consider the issue of reasonable excuse.
“No evidence was availed to the Minister to the effect that my clients acted without a reasonable excuse. It is unknown to my clients how the Minister could find them guilty of misconduct without evidence that is relevant to the requirements of the Act.” He said the other illegality is an order reviewing and setting aside their removal as board members, their reinstatement with back-pays and all benefits and alternatively a declaration that their employment contracts were unlawfully terminated.