‘Wrongfully’ dismissed police
Innocent Selatlhwa | Monday June 16, 2025 11:04
In the latest case, Goabaone Motseothata and 84 others have dragged government to court after they were sacked pursuant to disciplinary proceedings conducted by a Class II Disciplinary Board acting as a board of first instance and who have not yet been reinstated or compensated.
Ministry of State President (BPS), Commissioner of Police and Attorney General are first and third respondents respectively.
The officers through their attorneys, Winfred Masitha Legal Practice, want government to be compelled by writ of mandamus to comply with the binding judgment of the Court of Appeal (CoA) in Attorney General v Ketshepile Molebalwa (CACGB-143-23), by taking all steps necessary to implement and give effect to the terms and principles of that decision in respect of the Applicants.
The CoA early last year reinstated Molebalwa, who was dismissed for neglect of duty including failure to attend to a report of rape, without loss of pay and benefits.
He was dismissed from the BPS on October 31, 2019, after pleading guilty to neglect of duty, specifically failing to attend to a report of rape and leaving the police camp without permission.
Molebalwa was fined P500 on each count by Class II Board on June 26, 2019, and the disciplinary proceedings were forwarded to the Commissioner, who confirmed his dismissal.
Through a review application before the High Court, he contested the decision, arguing that he should have been tried by the Class III Board, given his lower rank.
Justice Matlhogonolo Phuthego ruled in his favour, saying that the Police Act was breached during the disciplinary proceedings
Despite this, the BPS appealed the decision at CoA but lost the case with costs.
Justice Johan Froneman, delivering the judgment, emphasised that the Commissioner, in dismissing the officer without meeting the statutory requirements for the exercise of his power, acted beyond her powers.
“He explained that it never appeared through the evidence of the police that the Class III Board deferred its hearing and reported the facts to the Commissioner as the officer was only charged before Class II when he ought to have been charged by Class III by virtue of his lowest rank of Constable.
“These are all requirements the Act lays down before the Commissioner may assemble a Class II Board for disciplinary against a junior officer. None of them were met in this case,” he said.
The judge noted that disciplinary proceedings before a Class II may result in dismissal from the service, but disciplinary proceedings before a Class III Board cannot result in dismissal unless it appears to Class III that, because of the gravity of the offence or any other reason, the matter should be dealt with properly by a Class II Board.
“It is a vital distinction that, as far as employment goes, concerns a life and death issue, namely whether a junior officer may be dismissed or not,” Froneman said.
In his founding affidavit, Motseothata states that following their initial statutory notice filed in September 2024, government acknowledged receipt, but no substantive response or remedial action was forthcoming within the prescribed 30-day notice period (or at any time thereafter).
“In particular, the Respondents failed to take any steps to implement the Court of Appeal’s Molebalwa decision or to address the Applicants’ grievances as outlined in the notice. The entire notice period elapsed without compliance, thereby necessitating further intervention by the Applicants’ legal representatives,” he stated.
On March 18, 2025, having received no cooperation or assurance of compliance from the respondents, the applicants’ attorneys dispatched a final follow-up letter.
In that letter, the officers reiterated their demands and afforded the government a final opportunity to avert litigation by complying on or before March 31, 2025.
“The letter expressly reminded the respondents that the applicants’ dismissals had been conclusively declared unlawful by the Court of Appeal in the Molebalwa judgment, yet the Respondents had taken no action to remedy these dismissals,” Motseothata stated.
“It was underscored that this continued failure to comply with a binding judgment was causing the applicants ongoing prejudice and hardship, as they remained out of employment and without compensation in defiance of the law.”
He stated that the follow-up letter highlighted the serious financial consequences of the respondents’ in action.
“It noted that, as of February 2025, the projected financial liability to the State arising from the government’s failure to reinstate or compensate the applicants had already exceeded P161 million. This figure represented an estimated aggregate of unpaid salaries, benefits, and other compensation due to the 84 Applicants then involved in the matter, and it was emphasised that the amount continued to accrue with each passing month,” he stated.
Notwithstanding the officers’ good-faith attempts to engage the employer and the clear warning conveyed in the follow-up letter, Motseothata laments that the government has to date persisted in their failure, refusal and/or neglect to comply with their legal obligations.
“The present application for a writ of mandamus (to compel the respondents to honour the Molebalwa judgment and rectify the unlawful dismissals by reinstating or compensating the affected officers) and for an order certifying a class action is therefore brought as a last resort, with the aim of enforcing compliance and vindicating the Applicants’ rights after all pre-litigation avenues have been exhausted,” he stated.
The officers now want government to be directed to reinstate the officers to their former positions as members of the BPS, with full restoration of all salaries, benefits and entitlements from the effective dates of their respective dismissals.
Alternatively, in the event that such reinstatement is impracticable or declined by any of the officers, they want the government to pay compensation to each such officer equivalent to the remuneration and benefits the officer would have earned from the date of dismissal up to the date of reinstatement or the Order (whichever is earlier), together with interest on the said sum calculated at the prescribed rate from the date of the Order until the date of final payment.
They also want the contingency fee agreement entered into between the officers and their legal representatives – providing for the said legal representatives to charge a fee amounting to 15% of any monetary award or settlement obtained herein – be approved by the Court, in view of and justified by the officers’ general unemployment and inability to pay upfront legal fees, thereby enabling the officers to have continued access to justice under these financial circumstances.
The officers also want the registrar of the High Court to be directed to supervise a fair and transparent process for the registration of all such similarly situated former officers who wish to be included as part of the applicants’ class in these proceedings.
“Such process shall include, at a minimum, the publication by the registrar of a notice inviting registration of class members – to be published in the Government Gazette and in at least one nationally circulating newspaper – and allowing a reasonable period for eligible dismissed officers to register their intention to participate in this class action,” they state.
They also want the court to order the registrar to compile a list of all persons who come forward within the stipulated period and meet the description of the class, and such persons shall be deemed to be part of the applicants’ class for purposes of the proceedings and any resulting relief.
They also want Government of Botswana, through the Ministry of State President to be directed to pay any and all compensation or settlement sums due to the officers into the trust account of the applicants’ attorneys of record.
The said attorneys shall thereafter disburse the funds to each individual beneficiary in accordance with the settlement or judgment, and shall be entitled to deduct the agreed 15% contingency fee from the amounts payable, pursuant to the approved fee arrangement.
They further want government to pay the costs of this application, jointly and severally (the one paying, the others to be absolved), including costs of counsel, in the event of opposition to the application.