Soldier sues BDF commander and wins
Lebogang Mosikare | Friday March 13, 2015 18:00
The commander of Botswana Defence Force (BDF) Gaolathe Galebotswe yesterday lost with costs a case in which a soldier had taken him to court to review and set aside the decision to remove him from the de-linking exercise, thus reducing his salary.
Under the de-linking exercise, approved in 2011 via a Presidential directive, the salaries of professionals such as lawyers and computer analysts within the ranks of the BDF were removed and raised separately to curb high turnover.
Erasmus Dodo Ngubevana, who holds a Diploma in Accounting and Business Studies, had his salary adjusted from P5,178 to P13,245 in April 2012 as a result of the exercise.
The applicant was also paid P1,996.75 as housing allowance, P3,311.25 as scarce skill allowance and P1,291.92 as professional allowance.
In or around January 2013, the adjustment made to the applicant’s salary was reversed and he was removed from the de-linking exercise.
As a result, his housing allowance was also reduced to P777,70 and his professional allowance was also reduced to P694,84.
The Attorney General (AG) representing the BDF Commander and attorney Ludo Lowa for the applicant, wanted the court to determine whether the decision of the BDF authorities (Commander) made and effected in or around January 2013 to reduce applicant’s salary and allowances should be set aside, whether the applicant had legitimate expectation that he would continue benefiting from the de-linking exercise hence the continuation of the adjusted or increased salary.
The parties also argued whether the BDF Commander breached the rules of natural justice in failing to afford the applicant a hearing on the issue.
“...I must say that the issue here is not the merits of the linking or de-linking exercise nor whether he qualified or not but the procedure adopted by the Commander in revoking his benefits. Was it or was it not in compliance with the audi alteram partem rule or rules of natural justice? Indeed the theoretical underpinning behind natural justice principles is one of procedure, procedural fairness or propriety and not the outcome or the merits of the case. I take it that the parties and the court are in sync on that issue,” said Justice Kholisani Solo of the Francistown High Court.
Solo said that the courts could only interfere with an act of executive authority if its shown that the authority has contravened the law.
“When an executive discretion is entrusted by Parliament to a body such as the BDF, it can only be challenged in court in a strictly limited class of cases... Crisply put, was the Commander of the BDF acting fairly by calling a mass meeting to address the issue? Was the applicant given an opportunity to make representations at the meeting or soon thereafter or indeed at any time thereafter? Did the applicant at any rate participate meaningfully at that meeting such that one could say that the rules of natural justice were complied with?” said Solo.
The judge said that no record was ever produced in court to prove that the applicant participated meaningfully in the meeting that was addressed by the Commander.
“As a result, we are at a loss of what exactly transpired at the mass meeting other than they were informed of the invocation of Regulation 19 of the BDF Act. A record of the proceedings of that meeting would have shed light on whether the rules of natural justice were indeed followed in respect of the applicant,” said Solo.
He said that in the absence of the record of proceedings, if any was done, it is clear that the applicant legitimately expected in the circumstances, that he expected to be given opportunity to air his views.
Justice Solo said that as a result one of the bedrocks of natural justice the audi alteram partem principle was breached.
“It was on the basis of the above reasoning that this court granted the applicant the remedies he sought together with costs on October 14, 2014. In the result the decision of the BDF Commander made and effected sometime around January 2013 to reduce the salary and allowances of the applicant is reviewed and set aside for want of compliance with natural justice principle. The AG and BDF are to pay legal costs of this application either separately or jointly,” said Solo in conclusion.