Legal minds ask for more time to �fight�

Isaiah Morewagae | Monday January 13, 2014 17:21

On Friday BOFEPUSU attorney Mboki Chilisa asked the Court of Appeal judges to add an eatra hour to the one normally reserved for arguments for both sides to buttress their issues when the case resumes on Thursday.

The government lawyers were comfortable with the request which means the warring parties will have four hours to tear into each other as they try to convince the judges.

Government through the minister of labour and home affairs is appealing the judgment of Justice Key Dingake’s 2012 ruling against government’s classification of teachers, veterinary services and diamond sorters as essential workers.

The respondents through advocate Alec Freund and Chilisa are opposing the appeal, praying for a dismissal with costs.

The respondents are Botswana Public Employees’ Union (BOPEU), Botswana Teachers’ Union (BTU), Botswana Sectors of Educators Trade Union (BOSETU) and National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU). 

In their heads of argument Freund and Chilisa say that those not engaged in essential services who took part in the strike included employees of the government whose jobs involved rendering veterinary, teaching and transport services and/or providing support activities in connection with the those services.

“Just as Parliament has no power to legislate to take away or restrict fundamental rights, save where the Constitution has made an exception, so too Parliament has no power to legislate in a manner that divests itself of the plenary legislative power vested in it by the Constitution.  

“Even if there is a necessary implication that Parliament has the power to delegate subordinate legislative powers to the executive, there is no necessary implication that Parliament is authorised to delegate to the executive the power to amend an Act of Parliament itself,” they argue.

Under the Trade Dispute Act (TDA) citizens engaged in services not listed in the schedule adopted by Parliament as part of the TDA had a right to strike. 

“Parliament had no constitutional authority to empower the minister to legislate to divest citizens of that right.

Determining which categories of employees should be prohibited from striking is a policy-laden judgment which should, in terms of Botswana’s democratic Constitution, be taken by Parliament,” they say.

By purporting to empower the Minister to override its own judgment, Parliament allowed control over legislation to pass to the executive, effectively abdicating its constitutional legislative responsibility, the lawyers say.

“Whether the right of workers to strike in a particular industry or service should be removed is a controversial question of legislative policy which must be taken by Parliament and not the executive,” they argue.