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Council attorney wins against AG, FCC

Francistown Civic Centre PIC: KEOAGILE BONANG
FRANCISTOWN: The Attorney General (AG) and the Francistown City Council (FCC) will rue the day they failed to appear in Court on December 12, 2019 to defend a lawsuit launched by the attorney for the municipality, Nancy Ebineng, against them.

The respondent in the matter was the Permanent Secretary in the Ministry of Local Government and Rural Development while the AG and FCC were cited as the first and second defendants respectively.

This week, Justice Bashi Moesi hammered the last nail in the coffin of the defendants by issuing a draft consent order that reads as follows: “The respondent having fully complied with the order of this Court dated August 25, 2020 on November 15, 2020, this application shall stand withdrawn. The respondent shall pay the costs of the application on attorney and own client scale”.

The plaintiff claimed the following against the defendants: “A declaration that in terms of the General Orders of the Public Service, she should be deemed to have been appointed on permanent terms to the position of Principal State Counsel 1, having acted in that position for a period in excess of 12 months and being qualified for the post and that consequent to the foregoing, ordering the AG to confirm the said appointment retrospectively to the date that the plaintiff’s acting appointment reached the twelfth month”.

In her founding affidavit Ebineng said: “In default of appearance by both defendants, on December 12, 2019, this Court entered a judgement in the matter…My attorneys advise me, and I verily believe that the said order was duly served on the first and second respondents on February 20, 2020 and February 25, 2020 respectively. This honourable court did not specify in the above mentioned order a timeframe within which the order was to be satisfied. However, on March 5, 2020, my attorneys wrote a letter to the first respondent demanding compliance with the order within five days from the date of the said letter, a copy of which is marked an annexed as “NE 4”. The first respondent has neither responded to the above-mentioned order nor advised what the difficulty is”.

While awaiting inescapable implementation of the order by the first respondent, Ebineng continued that she was constantly being subjected to “abuse by the second respondent in particular the Town Clerk (TC) and my only crime is having obtained a judgement declaring my appointment to the position of Principal State Counsel 1, the same position to which the respondents in their wisdom hastily appointed another person while the matter was pending before court”.

“Following judgement in my favour, the TC found himself in an awkward position of having two Principal State Counsels 1 when there is only one office for the position. Rather than acknowledge their mistakes of appointing another person to a position that they knew very well was the subject of Court proceedings and taken steps to rectify the mistake, the respondents have resorted to what is by all appearances desperate tactics to try and frustrate me out of office. I have on several occasions sought audience with the TC concerning implementation of the judgment and to discuss what should happen in the interim but regrettably, he seems uninterested as usual and has

even hinted to me that judgement does not concern him,” Ebineng said.

She added that the above-mentioned state of affairs had created so much tension between herself, the TC and the other Principal State Counsel 1.

“On two occasions, the other Principal State Counsel 1 sought to give me orders on how to execute my duties, but I reminded him that him and I were at par and as such, there was no how he can give me orders and further that I would receive such orders and instructions from the TC and his deputies.

When that happened, the other Principal State Counsel 1 accused me of being obstinate and he reported me to the TC. I have put the same sentiments to the TC and suggested to him that resolving this impasse was as easy as complying with the judgement… On March 23, 2020, I was served with a letter from the TC dated March 19, 2020,” Ebineng explained.

In the said letter, Ebineng elucidated, the TC informed her that he was contemplating to take disciplinary action against her for refusing to carry out instructions given to her by the other Principal State Counsel 1.

“The letter cites two instances of the alleged insubordination and I have to state that the allegations are nowhere near the truth and in my opinion only a ploy to avoid the consequences of the judgement. I have since tendered my response to the above-mentioned letter but wish to inform the court that the first respondent’s delay in complying with the judgement of the court is contributing to the already stressed working relationship between me, the TC and other Principal State Counsel 1. Should the second respondent persist with his intended course of action, I will be left with no other option but to approach this honourable court to seek an interdict against him,” said Ebineng.

Following the above-mentioned events, Ebineng filed an urgent application before Justice Lot Moroka praying with the Court to, amongst other reasons, issue a rule nisi (court order that will come into force at a future date unless a particular condition is met) returnable on a date to be determined by the court calling upon the first respondent (in the instant case, the first respondent being FCC) to show cause if any, why the disciplinary proceedings the first respondent has set in motion against her should be stayed pending determination of the application she filed on March 26, 2020.

In his judgement dated June 24, 2020, Justice Moroka said: “In the final analysis, the application meets the requirements of urgency for a temporary interdict. The following orders are hereby issued: the matter is declared urgent and rules of court regarding service of process and timeliness are hereby set aside, the disciplinary proceedings set in motion by the first respondent are hereby stayed pending determination of the application filed by the applicant on March 26, 2020. The first respondent shall pay the costs of the application”.




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