Magosi, Macholo set dangerous precedent, say DIS employees
Mpho Mokwape | Monday September 8, 2025 15:59
They are accusing their bosses of setting a dangerous precedence by using their high end positions as a shield from the law. “They are attempting to avoid rightful imprisonment for contempt of court by making weak and misleading claims about constitutional rights and national security,” reads the employees’ response to the duo’s application.
Magosi and Macholo recently filed an urgent application seeking to block their arrests as ordered by Gaborone High Court Judge, Justice Zein Kebonang. This followed after a contempt of court order was issued against them on August 25, 2025.
Kebonang had directed that the two be imprisoned until they had complied with a previous court judgment requiring them to pay long-outstanding salary backpays owed to the said DIS employees.
The original judgment dates back over a year, and the employees say there has been little to no attempt for compliance.
In their urgent application, the two superiors had argued that arresting them would violate their constitutional right to personal liberty, and further claim that their imprisonment would cause disruption to public services and pose a risk to national and public security.
They argue that, as Presidential appointees holding key government positions, their continued freedom is essential to the functioning of the State.
But DIS employees, through their legal team, Charles Batsalelwang of Collins Chilisa Consultants have completely rejected the claims.
In their responding court documents, they describe the applicants’ arguments as “worrisome,” “perplexing,” and “legally misplaced.”
“The bosses are trying to abuse court procedures to escape accountability and delay justice even further.
“They are trying to use their high-level government positions as a shield from legal consequences, which sets a dangerous precedent for the rule of law in Botswana,” argued Batsalelwang.
He argued that while the constitutional right to liberty is important, it is not absolute.
Batsalelwang explained that the Botswana Constitution, specifically Section 5, allows for imprisonment in cases where a person had been lawfully convicted or is being punished for contempt of court.
He argued that this case clearly falls within that exception, and that the applicants are not above the law simply because of the positions they hold.
The attorney warned that if the court accepts such an argument, it would open the floodgates for anyone facing legal consequences to claim constitutional violations and flood the courts with urgent applications, bringing the justice system to a standstill.
“The courts should be extremely cautious when hearing urgent matters and should not allow their schedules to be disrupted by what they describe as “self-serving and unconvincing,” he put it to court.
On claims by Magosi and Macholo that public services and national security would be compromised by their arrest, the employees responded by saying that this argument is false and exaggerated.
They argued that the institutions the applicants lead are not dependent on one individual and that there are deputies and structures in place to ensure continuity.
According to them, the idea that national security will collapse because a director is held accountable in court is not only wrong, but also disrespectful to the many civil servants who keep the government running daily.
Batsalelwang also raised a crucial point that the directors failed to act on the court orders for more than a year, that the judgment requiring them to pay backpays was issued in June 2024, and a follow-up judgment in December 2024 further confirmed their obligations.
“Yet, they have not complied, and have instead been dragging the matter through the courts. Even their appeal to the Court of Appeal was filed late and was struck out, forcing them to apply for leave to file out of time,” he said.
“It shows a pattern of delays and disrespect for the law, and they have no strong prospects of success in their appeal.”
The employees also challenged claims that the court orders were vague or unenforceable insisting that the judgments clearly outlined what the applicants were supposed to do pay the employees their outstanding salaries.
Batsalelwang pointed out that the court is not required to give step-by-step instructions on how to do that, they say. It is up to the applicants to follow the law and comply in good faith.
On the argument by the directors that they were not personally served with the court orders, and therefore cannot be held in contempt, the employees said the orders were served on the applicants’ lawyers, who have a duty to inform their clients.
Furthermore, they stated that they were well aware of the ongoing court proceedings and had full knowledge of the orders made against them.
“The law says that if someone knows about a court order, they are expected to follow it, whether they were personally handed the paperwork or not,” Batsalelwang added.
In terms of prejudice, the employees emphasised that they are the ones suffering the most saying many of them have not been paid their back salaries for over 10 years, despite working hard and serving the country with dedication.
They argued that any further delay in enforcing the court’s decision only increases the harm they suffer, while allowing the applicants to continue violating their rights with no consequences.
They also find it shocking that Magosi and Macholo claimed the employees would suffer no further harm if the stay of execution is granted.
The DIS workers reminded the court that justice delayed is justice denied, and that the longer the applicants avoid paying what they owe, the more damage is done to the employees and their families.
At the end, the employees asked the court to reject the urgent application by Magosi and Macholo and allow the contempt of court order to be carried out as originally ordered pointing out that the applicants can end their contempt at any time simply by doing what the court ordered over a year ago: paying the employees what they are lawfully owed.
The parties had been involved in a contentious litigation battle from November 7, 2023 whereupon the employees filed a claim against the DIS and DPSM headhonchos. The employees at the time filed a claim in court for backpays pursuant of Directive No. 6 of 2008 as read with the Circular Savingram dated May 13, 2002 titled “Implementation of the Court of Appeal Judgment Pertaining to Directives and Savingrams on Multiple Titling and Grading of C-Band Positions.”
According to court documents, the Directive was subsequent to Directive No. 10 of 2001 which stated that all public officers had the right to be assessed, and where a vacancy exists, they are to be recommended for promotion after a minimum period of two years.
In order to accommodate this improvement, progression and capacity in the public sector, the government resolved that all positions at the C-Band be multiple titled and graded C–1/2/3/4 and effectively created a pool of posts at the C-Band.
This implementation had the effect of providing government ministries with flexibility to recruit and fill out these posts and this was effectively communicated on May 30, 2007 in terms of DPSM Savingram.
Subsequently, Directive No. 6 of 2008 referenced above provided that all public officers in the C-Band who qualify for promotion became entitled to automatic progression after every two years up to the top notch of the C-Band scale. This had the effect of creating a progression regime in the public service unique to the C-Band and for which progression was not limited to the number of positions available in successive higher notches of the C-Band.
The courts records concluded that the Directive consequently opened up and made available at each notch of the C-Band openings and posts to cater for those from the lower notches of the C-Band.
It added that when they each completed two years, in a lower succeeding band and they automatically rose to the higher notch thus creating a plateau at the top notch of the C-Band, provided that they were eligible for promotion, and this progression was only limited to the C-Band.