Five years later, BDF nurses await their fate
Baboki Kayawe | Friday March 31, 2017 17:16
In 2012, 60 BDF nurses took the former Minister of Defence, Justice and Security, Ramadeluka Seretse and the then BDF Commander, Lt. Gen. Gaolathe Galebotswe to Court, demanding to know why they should not be entitled to overtime allowances like others.
The case was presided over by Francistown High Court Judge, Phadi Solomon. Seretse was cited as second first respondent while Galebotswe was the second respondent.
Last year, at an ongoing session of the case, Solomon nullified the decision by the Defence Council to refuse the BDF nurses’ overtime. When referring the case back to the Council, she ruled, “the case is remitted back to the Defence Council, properly constituted, to determine the BDF nurses’ application afresh with full compliance with the rules of natural justice”.
Moreover, respondents were ordered to pay the costs of the application to be taxed or agreed. Wananani Sibanda and Major Motaung represented the respondents.
On January 26, 2017, the applicants’ attorney Tshekiso Tshekiso, wrote to the Council requesting that a date be urgently set for the matter to be formally argued, and for a determination to be made.
“The case has dragged on for many years and it is time that it be brought to a close. We trust that there shall not be any further delay on the matter that has now been pending for many years,” reads the letter.
In response, on January 30, 2017, five years on, Dimpho Mogami for permanent secretary in the Ministry of Defence, Justice and Security, wrote, “I would like to inform you that the matter will be placed on the Agenda of the Defence Council”.
According to the particulars of the case, in 1998, a Presidential Commission of Inquiry recommended to the then President, Festus Mogae, that among other things, the BDF nurses should be paid overtime. Though other recommendatons were rejected, the overtime one, was one of those that passed the muster with the former president.
This was communicated through the Public Service Management Directive No. 18 of 1998, which did not exclude BDF nurses from being entitled to the overtime allowance.
After failure by the employer to pay the nurses’ overtime allowance, in 2012 the BDF nurses took the case before former Francistown High Court judge, Moses Chinhengo who dismissed the case on the basis that it was to be resolved by the Council. But the Council, during the same year of 2012, also dismissed the case without giving any valid reason.
The aggrieved BDF nurses who are bona fide members of the military, then applied to Court through their lawyer, Tshekiso, seeking the Court to resolve issues of fact to establish whether the Council ever convened prior to the lodging of the case to deal with the issue of the BDF nurses’ allowances.
The nurses are also seeking the Court to determine whether Justice Chinhengo was determinative on the issues raised in the current application regarding the allowances.
Regarding the issues of law to be resolved, the applicants are further seeking, amongst others, to establish whether the rules of natural justice should have applied before the Council, whether the Defence Council ever met and agreed to sanction any of the allowances referred to in the Public Service Management directive and whether the council is bound to disclose the reasons behind its decision.
“On the issues of law to be resolved during trial, the application seeks to establish whether the applicant’s claim is res judicata (is still going on) and whether Court should substitute its decision for that of the Council, whether the applicants are entitled to overtime allowances and whether there is a justifiable legal basis for excluding BDF nurses from enjoying the allowances,” reads the application in part.
The nurses are also seeking to establish if the Council “is bound by the Directives of the President of the Republic of Botswana on issues of allowances.”
It is also the applicants’ contention that they were never accorded an opportunity to appear, in person or otherwise, before the Council to motivate their application.