BDF commander challenges Justice Kebonang�s ruling
Mpho Mokwape | Friday January 27, 2017 16:49
Segokgo, who was almost jailed late last year by Kebonang for defying the court order when he allegedly refused to reinstate the duo, Thabang Tlhapisang and Kozondu Uariua, has filed a notice of appeal at the Court of Appeal (CoA). The notice of appeal follows Kebonang’s judgement that ruled in favour of the BDF’s infamous 'Romeo and Juliet'. They were fired for allegedly contravening the military’s Policy on Fraternisation and Sexual Harassment two years ago.
In the Notice of Appeal dated December 29, 2016, the Commander, who appears as the first appellant and the Attorney General as the second appellant, says he feels aggrieved by Kebonang’s judgement and wants the CoA to overturn it. On the grounds of appeal, the State as the legal representative of Segokgo, contends that the court a quo Judge erred in many aspects of facts and law when he ordered the reinstatement of the couple. The appeal documents state that among others, Kebonang erred in finding that it was their case that the lovers had an intimate relationship, which went beyond ordinary friendship between an officer and an enlisted member of the BDF.
The State’s argument is that their case was that the Commander had acted lawfully in dismissing the respondents and that the letters issued to the two were identical as it was said in the ruling. “Apart from the names, the 'show cause' letter issued to the couple was identical when in fact each letter had made reference to different provisions and regulations regarding each,” he said in his appeal.
The State maintains that Kebonang should have acknowledged that the couple was not appealing the Commander's decision to dismiss them, but had brought a review application, subsequently making the court failing to draw an appropriate distinction between the disciplinary hearings and the Commander’s decision to dismiss the lovers. The papers further read: “The court erred when it held that an intimate or sexual relationship between officers and enlisted personnel was inappropriate only when, among others it compromised or appeared to compromise the integrity of the supervisor's authority or chain of command, cause actual or perceived or unfairness, involve or appear to involve in the improper use of rank or position for personal gain”. Their contention is that an intimate relationship under a certain clause within the BDF fraternisation policy was prohibited out right and that the listed conditions only apply to relationships amongst soldiers of different ranks. Moreover, on the fact that the court held that the Commander’s decision was premised more on the fraternisation policy, therefore deeming it unreasonable, speculative and irrational.
“The court failed to realise and appreciate that the Commander dismissed the pair for their convictions. The fraternisation policy was only an issue before the disciplinary proceedings. The Commander’s decision to dismiss the duo and the disciplinary proceedings are two separate proceedings founded on two different enabling provisions of law,” read the papers. Lastly, the State’s argument is that the court did not interpret the provisions of Section 75 (2) of the BDF Act correctly to mean that the Commander was the one who determined the charge. It further reads:
“When in fact at that point a charge had already been levelled against the couple and it was for the Commander to determine whether the matter was to proceed by the court martial or summarily and to appoint an ASA chosen by him”. The couple that is currently back at work at Franscistown and Glen Valley bases respectively, filed a notice of opposition on January 23, 2017 through their attorney Othusitse Mbeha.The case is set for status hearing on February 8.