FRANCISTOWN: Justice Galesite Baruti of the Industrial Court, will on October 2 deliver judgment in a case in which 53 current and former employees of Diesel Power Botswana (DPB) are suing the company over allegations of unpaid working hours.
DPB has been awarded a contract to provide hard-rock opencast mining services at African Copper’s Thakadu and Mowana open pit copper mines in Botswana.
Countering the suit, DPB’s attorney Tebogo Machinya said it is not clear who signed the power of urgency or attorney on behalf of the applicants.
She submitted that the applicants’ application is not properly before court and as such, should be dismissed.
Machinya also stated that the applicants had failed to file a statement of the case that contains concise and sufficient particulars of the claim that they want the court to deal with.
She added that the situation constrain both respondent and court to exactly know the remedy the applicants want.
“I understand that this court is a court of equity. However, there is a time that the balance of scales should be tipped in favour of one of the parties in the matter. Since May last year, the applicants have failed to put their papers in order despite being advised by the court on numerous occasions to do so,” said Machinya.
Machinya argued that the employees’ application should be dismissed with costs because they failed to submit their heads of arguments despite being ordered by the court to do so.
On the other hand, applicants’ counsel Tebogo Botshelo from Legal Aid Botswana said in his view, the failure to file power of attorney by the applicants does not warrant a dismissal.
“Although we acknowledge that it was failure on the part of the applicants to file power of urgency, it is our view that the court is empowered to depart from procedure and rule that we serve it. Our view is that none of the applicants object to previous representation by their former attorney which may cause the court to dismiss this matter which is common cause to both parties,” said Botshelo explaining that all the applicants have signed power of urgency at different times.
In addition, Botshelo said it is regrettable that the applicants failed to file a statement that contains concise and sufficient particulars of their claim.
“I am mindful of the fact that the applicants did not file their claim until yesterday (Tuesday). However, we pray with the court to consider condoning the applicants’ late filing of the claim primarily because both parties are aware of the claim before court,” said Botshelo.
He noted that the late filing of the claim would not prejudice the respondent in any way adding that their failure to file on time does not mean that they have lost interest in the matter.
However, Machinya objected to the condonation application made by the applicants.
She said that procedurally, the applicants did not file any application for condonation that the court may make a determination on.
Botshelo prayed with the court that even if it were to rule in favour of the respondent, it should also do so with liberty for the applicants to reinstate the matter to enable them to put their house in order because they have a strong case against the respondent.