MESD wins against teachers
Lebogang Mosikare | Monday September 4, 2023 10:03
The case was attended by scores of teachers from many parts of the country who were hoping for the best. But they left the Francistown High Court an unhappy lot after Justice Bashi Moesi ruled in favour of the ministry.
When delivering the ruling, Justice Moesi said it is common cause that teachers in government schools are members of BOSETU on one hand whilst they are employees of government through MESD. “It is common cause that there is an entity called Botswana Examination Council (BEC) which though is not a party to these proceedings is a key stakeholder in matters over which the parties from time to time contracted.
These matters in a nutshell entail teachers producing course work content to which the teachers must then produce practical results for students in government schools in respect of which projects are finally evaluated and assessed by the teachers providing marks or grades which will then be factored into the students’ external examination results for final grading.
It is common cause that the service(s) teachers are paid course work and invigilation fees which are set by the parties (MESD and BOSETU). As to what considerations influence such agreements is not apparent and is by all appearances not relevant for this ruling,” said Moesi. Suffice to say, Moesi continued, up until 2022, the parties on an annual basis concluded what they termed “Concluding joint statements between the MESD and recognised trade unions, BOSETU and Botswana Teachers Union (BTU)”.
“Sometime between July 2023 and August 2023, MESD and BEC reached an agreement on the basis of which responsibility for payment of course work assessment was given to MESD while BEC retained the responsibility for payment of invigilation fees. This precipitated a decision by BOSETU on or about August 7, 2023, amongst other things, advising its members that negotiations for the 2023 course work and invigilation had not been concluded and that such negotiations had reached deadlock and that therefore there was no agreement for 2023. BOSETU consequently advised its members to stop course work activities and that they should not submit course work marks. MESD has taken the view that the action taken by BOSETU is unlawful in that it offends labour law statutory provisions and the collective labour agreement between BOSETU and MESD. MESD further maintains that the timing of BOSETU’s work stoppage is disruptive such that if it is not immediately curtailed, it would cause immense and irreparable harm to the final year students,” said Moesi. Moesi added: “The AG has approached court on urgency praying for, amongst others, that the matter is urgent and that the instruction and or advice of BOSETU to its members contained in a jointly executed correspondence with BTU dated August 7, 2023 is hereby declared unlawful and that BOSETU shall within 24 hours of this order accordingly in writing withdraw such instruction to its membership and copy such to MESD...” On the other hand, Moesi added, BOSETU prays with the court to rule that the matter, among others, is not urgent since no allegations have been made to substantiate urgency. “...Having objectively and carefully applied my mind to the relevant facts, I am of the view that it really cannot be seriously contended in a matter of this complexity that there was a delay in bringing the application. Any delay, in my view, was extremely limited or minimal. I am thus of the view that the AG has more than adequately answered BOSETU’s points in limine formulated as lack of urgency...,” Moesi clarified. BOSETU having not filed an answering affidavit, Moesi continued, and having neglected to refute the allegations advanced by MESD as captured on paragraph 6, 7, 8, 9, 11 and 12 of the founding affidavit is taken to admit these allegation and I am similarly not satisfied that the alleged contempt of court on part of MESD passes muster... “The provisions of Section 7 are peremptory as opposed to being merely directory. Consequently, in my view, whether or not a court order specifies a period of compliance it is mandatory that where there is default on the part of the party carrying or bearing the obligation to perform, the innocent party before launching contempt proceedings must approach the court on notice to the defaulting party seeking an order in terms of which a report may be made to the president. I am not impressed by the argument advanced by the defence counsel for BOSETU. I am not impressed by the argument by the defence counsel that such a report as a prerequisite to any further steps against a defaulting party is not always necessary. The argument has no legal foundation in light of the provisions of Section 7. It is a matter of common cause that as regards to proceedings pending for decision by this court, the same were not preceded by a report to the president. Without prejudging the said application, it must be said that the prospects of that application succeeding are quite bleak. Consequently, they cannot be relied upon as a basis for contending that MESD has approached this court with dirty hands. This point in limine must also fail,” said Moesi. In conclusion, Moesi said: “The application is urgent, the instruction and/or advice of BOSETU to its members contained in a jointly executed correspondence with BTU is hereby declared unlawful and the respondent shall within 24 hours of this order accordingly in writing withdraw such instruction/advice to its membership and copy such withdrawal to the AG.
BOSETU is hereby further interdicted from doing any act whatsoever instructing its membership to withdraw their labour regarding their contractual obligations to carry out all course work activities until the court has disposed of the contempt of court proceedings in the case of BOSETU vs Opelo Makhandela, case No. MAHFT 000 013/09 (interlocutory application filed on June 28, 2023). BOSETU is to pay the legal costs of this application to the AG on attorney/client scale.” After the ruling, Tobokani Rari, the secretary-general of BOSETU, said that although they respect the court ruling, they are of the view that the judge misdirected himself by saying that the matter was not urgent since the application of MESD was brought well after the prescribed court dates had passed. Rari also stated that BOSETU has misgivings that the judge dealt with the contempt of court which was not before him.