BDF Commander loses appeal
Goitsemodimo Kaelo | Friday July 28, 2017 15:58
Last year , Justice Kebonang ruled in favour of the couple, Tlhapisang and Uariua, ordering the BDF Commander to reinstate them. They were dismissed in 2014 for allegedly contravening the military’s Policy on Fraternisation and Sexual Harassment (PFSH).
Segokgo, who was almost jailed late last year by Kebonang for defying the court order when he allegedly refused to reinstate the duo, then appealed Kebonang’s judgement. In his filing notice, Segokgo stated that he felt aggrieved by Kebonang’s judgement and wanted the CoA to overturn it.
In the appeal, Segokgo contended that the court a quo judge erred in many aspects of facts and law when he ordered the reinstatement of the couple. He also stated 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.
He further argued that the Commander had acted lawfully in dismissing the respondents.
However, yesterday the CoA bench made up of Justices Craig Howie, Lord Abernethy and Singh Walia dismissed Segokgo’s appeal with costs in so far as Tlhapisang, who is cited as the first respondent in the application, is concerned.
However, the bench allowed the appeal with costs in respect of Uariua, but altered Kebonang’s judgement.
“The application of the first applicant is allowed with costs, and she is reinstated with immediate effect with all attendant rights, benefits and privileges attaching to her position as if she has not been dismissed.
The application of the second applicant is dismissed with costs,” read the altered order.
With regard to the appeal in respect of Tlhapisang fitness to hold her commission, the bench held the view that it was not enough for the Commander to confine his attention to the fact of her conviction nor to limit his consideration of the matter to his own views. The bench further pointed that in all fairness and reasonableness, the BDF Commander should have accorded Tlhapisang the opportunity to put her side of the case before dismissal.
“Indeed canvassing her input was a necessary component in the determination required to be made before the Commander could properly. That was what compliance with the regulation entailed and the Commander failed to comply,” said Justice Howie.
As such, the bench felt the first respondent’s dismissal was flawed by a failure to do what Regulation 7 required.
As far as Uariua is concerned, the CoA bench noted that he did not make proper representation in resisting discharge and that for the Commander to have confined his attention to the disciplinary conviction is not surprising.
“What the second respondent did not do was, for example, to say that the respondents’ relationship was conducted in ignorance of the policy, or to assert that the quality of the service he had rendered was such that his discharge would disadvantage the Force, or that the respondents’ relationship had been terminated and could no longer impair the functionality of the Force,” read the judgement.
The bench also noted that it could not be said that Uariua’s discharge was reviewably irregular by reason of a flawed exercise of the Commander’s discretion, as he did not establish that representation, which ought to have been considered, were ignored.
Meanwhile, according to evidence before court, the two were accused of engaging in an inappropriate relationship some time in 2012 and were each charged on August 22, 2014 with a single count of conducting themselves in a manner that was prejudicial of good order and military discipline contrary to the BDF Act.
Subsequent to that, the due was dismissed from the military on October 28, 2014 through a letter dated October 27, 2014. Tlhapisang was employed as a Second Lieutenant while Uariua was employed as a private soldier based at the Sir Seretse Khama Barracks.