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Court reinstates BERA's Machacha

Gaborone Industrial Court has reinstated one of Botswana Energy Regulatory’s (BERA) recently fired directors, Chawada Machacha, while chief executive officer, Rose Seretse narrowly escaped to pay the costs of suit personally.

Machacha, who was BERA’s director of finance and procurement, was dismissed alongside three other finance officers in February.

This was on allegations of contravening the General Conditions of service by wilfully disclosing confidential information detrimental to the organisation.

Seretse dismissed Machacha following a disciplinary hearing held on February 20 and 25, 2020 at Indaba Hotel in Gaborone in her absence. Machacha then took the matter to the Industrial Court where she challenged her dismissal and sought an order declaring that Seretse was in contempt of an earlier court order, which interdicted her (Machacha’s) disciplinary hearing.

When ordering Machacha’s reinstatement Wednesday, Industrial Court judge, Isaac Bahuma said it was high time those who led public institutions be liable for costs incurred if they were found to have acted in a vindictive manner.

The court attacked the conduct of Seretse, who signed Machacha’s dismissal letter for ignoring the Court’s order interdicting the disciplinary hearing against the employee. 

Judge Bahuma said in his view, the respondents acted in carefree manner warranting an order of costs.

The Respondent’s purported disciplinary action was meant to harass the applicant and it was vexatious. It put the applicant to “unnecessary trouble and expense”. They have to bear the costs of this suit,” said the Judge.

Bahuma said what is more reprehensible is that public office and resources were employed to achieve objectives that are totally non beneficial to the Respondent as an organisation.

“Those who lead public institutions

are custodians of societal hopes and aspirations, the society does not expect them to pursue causes that bring into question the integrity of the organisation they lead.

“In this case, because of the unlawful actions of the management of the Respondent is (at least so far) a once off incident, the Court will refrain from ordering the CEO to pay costs personally, such costs are awarded against the respondent on attorney and client scale given the fact that the applicant should not be put out of pocket, and also to mark the Court’s displeasure at the conduct of the Respondent.”

The Court also ruled that Machacha’s dismissal was in violation of the rule nisi granted in her favour on January 29, 2020, therefore a nullity.

“The Respondents used the same set of facts to do what the rule nisi prohibited. This is not permissible.

The dismissal of the applicant by the letter dated 26 February 2020 is unlawful and a nullity, it is hereby set aside. The applicant remains an employee of the Respondent,” said Bahuma.

The Court also expressed dissatisfaction that BERA management intended to circumvent the return date of the March 4, 2020 by dismissing the Applicant thereby rendering it a non-event.

“The sheer haste with which the hearing was convened is indicative of the fact that the purpose and intent was to circumvent the rule nisi and the court so holds,” said the court.



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