Walia hits back at BUAN in retrenched driver's case

Goitsemodimo Kaelo | Wednesday April 30, 2025 13:04

In a ruling delivered last Friday, BUAN once again lost the legal battle against its driver, Gilbert John Ramontsho who was retrenched when the institution converted to a university four years ago.

The university had tried to fight back in what is akin to a ‘back door’ tactic to avoid reinstating and paying Ramontsho's four-year back-pays after the CoA had ruled in February this year that his retrenchment in 2019 was unlawful.

Following their loss at the CoA, BUAN then filed an application to the court for the reconsideration of the appeal seeking the following reliefs: 1) that there are exceptional circumstances arising, in respect of the matter as a result of the appeal, judgment and order of this dated and handed down on February 21, 2025, leave is hereby granted for the appeal to be reconsidered by this court on its merits that the appeal in the above matter is hereby re-enrolled for re-hearing and reconsideration and that the respondent should pay costs of the application inclusive of the costs consequent upon the employment of counsel.

BUAN raised what it claimed to be exceptional circumstances that require the court to revisit its decision.

The institution argued that the court erred in finding that the vacancies existed in its structures allowing the re-employment of the respondent; the court erred in finding that the employment of the respondent on a short-term contract post his retrenchment should be used as a factor to order his reinstatement.

Furthermore, the institution argued that the court was in error in concluding that there was no evidence in lodging the respondent’s complaint wasn't attributable to him without properly investigating the issue; it was incumbent on the respondent to explain the delay in pursuing his claim; the court was in error in tampering with the decision of the industrial court; and that the court was in error in accepting the respondent’s post retrenchment qualification.

However, the application fell flat as Justice Sigh Walia described it as no more than the rantings of an unsuccessful litigant. Justice Walia said he found no exceptional circumstance or reason for departing from the functus officio and finality in litigation principles.

“The applications is without merits and is hereby dismissed with costs,” reads Walia’s order.

In his reasoning, Justice Walia said the doctrines of functus officio and finality in litigation could de departed from in exceptional cases and in the interests of justice. In law, functus officio refers to a situation where an authority or body, like a judge or tribunal, loses its jurisdiction over a case once its functions are completed, such as after issuing a final judgment or award.

He stated that save for the unequivocal admission that the respondent’s retrenchment was unlawful, the applicant advanced no argument before the Industrial Court. He reasoned that none of the matters raised at the hearing of the appeal were canvassed at the Industrial Court.

“The delay in proceeding, the issue of qualification, the time lapse since the date of retrenchment, and whether or not there was a breakdown of relations between the applicant and the respondent were all matters of justiciable by the Industrial Court but the applicant chose not to raise them at the proper forum,” reads the judgment.