Former BLLAHWU members sue LTC
Goitsemodimo Kaelo | Tuesday October 10, 2017 16:02
Thapelo Mphala and Charity Mahube, who argued on behalf of the council, said the applicant have wrongly joined them in the application as the council is not the direct employer of the applicants.
In the matter, Keabetswe Sera and 65 others have approached the court seeking orders declaring that the council by continuing to withhold Botswana Land Board & Local Authorities & Health Workers Union (BLLAHWU) subscription fees after they were instructed by employees to stop, are in violation of the Employment Act, that the council stop forthwith deducting subscription fees from the members’ salaries and then be directed to reimburse the applicants all the fees that it has withheld from them. The applicants are also seeking an order of costs against the respondents.
BLLAHWU has been cited as the second respondent in the matter.
However, when responding to the applicants’ demands, Mphala argued that they do not have locus standi (the right or capacity to bring an action or to appear in a court) to the case as they were wrongly cited.
“We are raising the issue of locus standi. The council is not the statutory employer of the applicants. We are abandoning all our submissions on the issue of the Employment. We are raising the issue of locus standi. The applicants were advised by the Town Clerk in response to the instruction to stop deducting, to engage the office of the Permanent Secretary to the President or the Director of the Directorate of Public Service Management,” said Mphala.
He argued that in terms of the Public Service Act of 2008, the Council does not have the power to employ the applicants as the duty falls within the mandate of DPSM.
“The right person to have cited is Attorney General as the legal advisor of DPSM not Lobatse Town Council.”
He said the deduction of subscription fees is done by the Treasurer General not LTC, which is not an office within the Council.
He said the application should be dismissed, stating that it is frivolous against the Council.
Furthermore, he argued that the Council could not reimburse the applicants because the union receives the money.
Attorney, Uyapo Ndadi for the applicants said the employer has refused to stop deducting the subscription fees since April 2016.
He said at the core of the application is the employer’s action to refuse an instruction from the employees regarding termination of deduction of subscription fees.
He argued that the Council lawyers are wrong to claim that they were wrongly cited because Section 6 of the Local Government Act gives councils the authority and power to sue and be sued.
He further argued that the same Act under Section 36 gives the Council power to appoint and be countable to its staff through the Council Secretary or Town Clerk.
“The Town Clerk even admitted in his affidavit that the applicants are employees of the Council. Does it mean he lied under oath to mislead the Court?”
Ndadi also said it is not correct that there are no offices of Treasurer General within Councils. He said the offices are found in Local Government as the Central Government have the Accountant and Auditor General. He also argued that the Council needs the consent of its employees only not any other party to effect deductions or stop deducting subscription fees.
Martin Dingake, who represents BLLAHWU, said the consent to terminate membership by the applicants should be consistent with the union constitution and the Collective Labour Agreement.
He said the members ought to have given the union three months termination notice.“The union shall be given time to ascertain its liabilities with the members before the termination could be effected. The Collective Labour bargaining is bending between the employer and union,” he argued.