Police commissioner bows down in a pregnancy challenge
Mpho Mokwape | Friday October 12, 2018 13:45
Through a consent order that was reached before Justice Zein Kebonang recently, the fired trainee Keolebogile Nkgarapi will have a chance again to be enrolled back into training post confinement.
According to the order, Nkgarapi who was only left with two months to complete her training for a constable post, will be reconsidered after birth provided she passes all medical tests. However, as per the Police Act section 14 (1) that states that female police recruits are not to fall pregnant prior and during training of which will automatically lead to dismissal, the consent order clearly states that it does not set a precedence for future cases but only applies to Nkgarapi’s case.
In Nkgarapi’s case, she was fired from the police service as a recruit constable having served in the police for six years as a special constable based at Tlokweng Police Station.
According to her founding affidavit filed through an urgent application before court on September 27, 2018, she was recruited in February 2018 and was to complete her training first week of December 2018 but on August 31, 2018 she was subjected and ordered to submit a pregnancy test of which it came back positive after being found to be four weeks pregnant.
Following her termination from the police service on September 20, 2018, she filed an urgent application seeking an interdict staying the decision of the commissioner from effecting and carrying out his decision to terminate and discharge her from the police service.
“The termination was purportedly in terms of section 14 (1) of police act and viewed from whichever premise is unlawful and reviewable,” read the affidavit.
Through her law, Ofentse Khumomotse, Nkgarapi argued that not only is the termination premised on the results of the pregnancy test that she had not freely and voluntarily consented to, but it also offends the provisions of the Public Service Act in terms that she is entitled for maternity leave.
On top of that, Nkgarapi had intended to submit that the punitive action taken against her was solely and exclusively against female recruit constables and certainly not against male recruit constables for similar infraction.
“This renders the decision reviewable on account of it having been discriminatory on the basis of gender. The commissioner’s unlawful decision to terminate my employment if allowed to stand will render me unemployed with no source of income and unduly divest me of an opportunity to complete my police training,” Nkgarapi further stated .
The police commissioner, Keabetswe Makgophe in an answering affidavit, said the termination was per the Police Act and that the pregnancy test the trainee was subjected to was as per the Botswana Police College General Regulations (2007).
Makgophe explained that Regulation 7 was instructive and that it was never the intention of the frame of the act to punish one gender to the exclusion of the other, but rather to protect also the expectant mothers as well as the unborn child.
“Also, the applicant is not governed by Public Service Act, which explicitly excludes all disciplined forces and on top the applicant is still at liberty to re-apply for next intake and that her dismissal does not prejudice her to be considered,” Makgophe said. Lastly, Makgophe argued that the Police Act governed the applicant, having been a member of the disciplined force and other regulations termed ‘Disciplinary Law’ and the same are recognised by the Constitution as not being unconstitutional.