State struggles to motivate Court of Appeal case

Isaiah Morewagae | Friday January 24, 2014 16:09

At one point, he conceded that his principals did not consult trade unions when they included teachers, diamond sorters and transport and communication employees in the essential service workers list in the aftermath of the 2011 public service strike. This was a departure from the government position stated by the Minister of Labour and Home Affairs who said trade unions were consulted before the listing.

Chamme argued that in Botswana, all instruments made by a subordinate lawmaking authority passes through Parliament. He asserted that the High Court says Section 49 of the TDA is unconstitutional because the exercise of power by the minister is not properly guided.

“But notwithstanding everything, it says it accepts that delegation that is regulated is proper. Our submission is that boundaries of delegated power have to be examined in the context of the whole Act and in particular what the legislature itself has listed as essential,” Chamme argued.

In the premise, Chamme urged the Court of Appeal to set aside the High Court’s order that declared Section 49 of TDA unconstitutional.

On the other hand, the unions’ legal team led by South African Advocate, Alec Freund SC, argued that those not engaged in essential services who took part in the strike included employees whose jobs involved the rendering of veterinary, teaching and transport services and/or providing support activities in connection with the listed 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,” Freund submitted. He argued that

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.

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. Freund argued that Parliament had no constitutional authority to empower the minister to legislate to divest citizens of the 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. 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,” Freund said.

He added that 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.

Court of Appeal president, Ian Kirby said the matter was a complex one, hence they will need more time to research and come up with a decision. He informed all the parties that the date for judgment will be announced in due course. In the case, the government is appealing a High Court decision annulling the decision to declare teachers, diamond sorters, transport and telecommunication employees and fire fighters as essential service employees. Four trade unions under Botswana Federation of Public Sector Unions (BOFEPUSU) and National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU) oppose the appeal.

Kirby, Lords Alistair Abernethy and Arthur Hamilton heard the appeal together with justices Steve Gaongalelwe and Isaac Lesetedi in a full bench of the court.