Richard Loses Against National Assembly
Mpho Mokwape | Monday August 29, 2016 18:00
Justice Gaolapelwe Ketlogetswe of the Gaborone High Court on Friday dismissed Richard’s application with no order to costs and also discharged the order that he be made to stay the disciplinary proceedings.
Richard was supposed to appear before the disciplinary committee last Wednesday for alleged illegal political activism while employed under the Public Service Act (PSA). He then moved an urgent application to interdict the National Assembly from continuing with the disciplinary process pending an intended constitutional challenge.
He moved the application for an interim order through his lawyer, Mboki Chilisa while they sought proper interpretation of the statutes of law the National Assembly was using to charge him.
When delivering judgement, Ketlogetswe said Richard’s complaint was that if he was to be put through the disciplinary hearing and was dismissed he would lose out on his employment benefits as he would be entitled only to notice.
“This averment in my view does not touch on the loss of the enjoyment of the freedoms and rights he is seeking to protect, but rather on the financial loss he is likely to suffer should he opt to continue with his being active in politics at the expense of his job,” he said.
He explained that there was no allegation of harm likely to be suffered by him if he opted instead to forgo his being active in politics therefore the court was unable to weigh the extent of the harm likely to be suffered by him and whether such harm would be irreparable.
On the financial loss if Richard could be dismissed, Ketlogetswe said if he was to be successful in challenging the constitutional validity of Section 37 (c) of the PSA and General Orders 38 he would be restored to the status quo ante or be entitled to damages.
“This is because there would have been no legally valid reason to dismiss him. Again the damages in his case in view of his contract will not be difficult to compute. If he was to succeed in his constitutional challenge of the PSA there will not be absence of an ordinary remedy in contractual damages or even constitutional damages,” he said.
Ketlogetswe further said if the interim interdict was issued the respondents would suffer prejudice if it was ultimately determined at a hearing in due course that Section 37 (c) and the General Orders sought to be impugned were constitutional.
He maintained that the state will be saddled with having remained in a contract which was initially breached and whose fruits the applicant was not entitled to have.
In a brief interview after the judgement, Richard said he will consult with his lawyers before deciding on the way forward to see if they can appeal or not.
He said they had thought they will get a progressive judgement that will protect the rights of workers especially those without contracts, pensions and others but the judgement did not tap onto the issues raised.
Richard however noted that he was not afraid of the fate that lied with the disciplinary proceedings, as he was already aware of its outcome.
“I am very disappointed with the judgement and for now I’m not afraid of the proceedings since I already know my fate. There is no such thing in Botswana as disciplinary hearing, it is only designed to take our rights away so if I don’t appeal it’s fine I am ready for anything,” he said.