Union secondment case goes back to High Court

Tsaone Basimanebotlhe | Monday February 9, 2015 16:02

The Court of Appeal remitted the case because the judge who heard it and granted the unions’ wish to interdict Government from recalling the officers did not determine the dispute that was brought before him.

The court also set aside the judgement granted on October 4, 2013.

“Firstly, what was brought before the court were contempt proceedings against the director. The order granted by the judge a quo either standing on its own or together with his conclusion... clearly indicates the decision was based on a finding of judicial review which is a different specie of legal proceeding with its own type of remedies flowing from it than one of contempt,” the Court of Appeal said in a decision read by Justice Isaac Lesetedi on Thursday.

The case was filed at the High Court by the Botswana Landboard and Local Authorities Workers Union (BLLAHWU), Botswana Sectors of Educators Union and Botswana Teachers Union after the Directorate of Public Service Management (DPSM) withdrew the secondment of trade union secretary-generals and recalled them to the public service.

Lesetedi said: “The matter is remitted back to the High Court to be dealt with on the proper issues before that court if such issues are still extant. If the issues raised are not, the Judge to make an appropriate order to put the matter to rest”. He said the only commonality between the orders sought and the orders granted was the grant of a restraining and interdicting order.

He said that order is not a stand alone remedy and it is dependent on the findings in respect of the wrong sought to be redeemed by the applicant, or if appropriate, the wrong found to have been established by the court. “There is nowhere in the record showing that the applicants did at any stage amend their papers to seek a remedy different from the one set out in the notice of motion and the draft order.”

The court ordered that each party should bear its own costs of the appeal. Lesetedi said this is such a fundamental and patently incompetent decision that cannot be allowed to be viewed as a competent but possibly erroneous judgment. “It cannot stand on its own as it has no base or foundation,” he said.

The judge said the order that was sought and granted as stand-alone remedy was initially of an interim nature, and was dependent on the contempt remedy sought. “For instance, there was no finding that the director was in contempt of court, hence the interdict order would not on its own stand. The same applies to a finding of unlawfulness on the ground of breach of the audi alteran partem (fairness) rule,” Lesetedi said.