Kebonang jails Magosi, Macholo for contempt
Oarabile Mosikare | Wednesday August 27, 2025 16:59
The 401 DIS employees had registered several victories against the DPSM and DIS in a case in which they had taken the employer to court for breach of contract (for refusal to pay them backpay dating as far back as 2001). Their main contention was that the employer had failed to pay them salary backpays despite the government having issued Directives and Savingrams to that effect. The employees had taken the DPSM, DIS, and Attorney General to court seeking salary back pay effective from April 2008. The Court of Appeal on June 14, 2025, hammered the last nail in the coffin when a bench of three Judges struck off the appeal with costs in an ordinary scale. Yesterday, Justice Kebonang declared that Magosi and Macholo were in contempt of the order of the court issued on June 3, 2025.
He issued an order committing the duo to imprisonment, where they shall be held until they purge their contempt. 'An order directing the Registrar to forthwith issue a writ of personal attachment and committal to prison pursuant to the above order authorising Deputy Sheriff or officers of Botswana Police Service to apprehend the first [Macholo] and second [Magosi] respondents and deliver them to any prison in Gaborone,' Justice Kebonang ordered.
He also declared that the DPSM, DIS and Attorney General be ordered jointly and severally, with one paying the other to be absolved, to pay costs of this application on the punitive scale of legal practitioner and client.
In his previous December 2024 judgment, Justice Kebonang had declared that the decision not to pay the officers was unlawful. The decision not to pay the officers back pay is unlawful insofar as the decision to pay is not back-dated to 2001 when Directive No.10 of 2001 came into force, he said. Justice Kebonang also ordered that the decision not to pay the officers was contrary to Directive No. 6 of 2008 as read with the Savingram titled Implementation of the Court of Appeal Judgment Pertaining to Directive and Savingrams on Multiple Tilting and Grading of C-Band Positions dated May 13, 2022. He stated that the decision not to pay officers was unlawful because they had a legitimate expectation to receive back pay effective April 2008.
“The decision not to pay the employees is contrary to the parity principle, thus unlawful,” Justice Kebonang said at the time. The spy agency responded to the employees’ grievances by filing an appeal with the Court of Appeal on the grounds that the claim made by the employees was a dispute of fact and ought to have been supported by led evidence.
“The claim of entitlement to multiple grading and titling of C-Band is a clear dispute of fact on which evidence ought to have been led. The orders of the court remain unenforceable as the respondents’ case was for an unliquidated claim, and there is nothing before the court that speaks to the payment breakdown of each respondent,” reads the appeal. The holding grounds in the appeal further stated that the application of the Directive is in their discretion and that they have justly applied the same Directives and Savingrams. The appeal also maintained that the employees’ claims for progression and training cannot be confirmed as final, as they are tantamount to specific performance and that the orders of the court of June 3, 2024 and by extension of December 6, 2024, are vague and therefore rendered unenforceable. “Moreover, the court a quo erred in holding that the respondents were entitled to reliefs sought when, ex facie their papers, the respondents had failed to prove their entitlements and quantum thereof,” reads the papers. The appellant is seeking relief in that the orders of the High Court be set aside, costs of suit and further or alternative relief. The back and forth between the DIS and its employees is a lawsuit based on the fact that about 401 employees in 2023 issued a writ of summons against the DPSM, DIS, and AG on grounds that the decision taken by the government not to pay salary back pays effective from April 2008 was unlawful.
The writ of summons came from a long-standing issue between the officers and their employer on the fast tracking of employees’ progression, as the officers have in the past bemoaned that the DIS continues to ignore a court order that was issued against all ministries for salary scales and a subsequent Directive by the DPSM enforcing the judgment. The employees' concerns are in relation to the DPSM directive, reportedly meant to fast-track progression of public servants in the C-band category, but at the DIS, it has been alleged by some employees that things have not been effected as per the directive. According to the officers, in 2007, the government introduced multiple titling and grading of C-band positions through a Savingram DPSM 13/34/9 (43) dated May 30, 2007. The Directive was reportedly meant for all ministries, but with the government realising many were not complying as a follow-up to the 2007 Savingram, the government issued Directive No. 6 of 2008, where the objectives of multiple grading and titling were vividly set out. The Directive allowed for direct appointment of graduates with appropriate academic qualifications at entry level, but without experience, and to facilitate faster progression of serving officers who qualify for promotion without the need for ministries to request additional posts or resources. In their court papers, with both the 2007 Savingram and the 2008 Directive on multiple grading and titling of C-band positions being applicable to all ministries, the DIS officers alleged that they were also included but have not yet benefited from the Savingram and the Directive.
Particulars of the claim were that the officers were aggrieved by the decision taken by the government not to pay salary back pays despite the court order and the Directive. “The decision is contrary to Directive No. 6 of 2008 as read with the Savingram titled Implementation of the Court of Appeal Judgment Pertaining to Directives and Savingrams on Multiple Titling and Grading of C-Band Positions dated May 13, 2022,” read the summons. The officers, who were at the time represented by Collins Chilisa Consultants, argued that they had a legitimate expectation to receive back pays effective from April 2008 and that the decision was unlawful insofar as the decision to pay was not back-dated from 2001 when the Directive No. 10 of 2001 came into force. The officers had also submitted that the government has communicated its intention not to pay them salary back pays in terms of the 2008 Directive, effective from 2010 when they joined the DIS. In the summons, the officers had further argued that a cause of action was clear in the sense that in terms of Directive No. 10 of 2001, public officers have the right to be assessed and where a vacancy exists, they are to be recommended for promotion after a minimum period of two years instead of three years as was the case before that directive.