In an attempt to protect their livelihoods, employees of Kgalagadi Breweries Limited (KBL) have joined the fight and approached the Court of Appeal seeking a fast appeal against the alcohol ban judgement.
The largest brewer that has been fighting for the alcohol ban to be lifted citing financial repercussions and possible subsequent job losses if the ban continues has noted that at this point it does not have a suitable alternative remedy but to approach court to ask for relief.
According to the company’s court documents filed on August 16, 2021, two employees have also been cited as the applicants in the matter and have deposed affidavit detailing how the alcohol ban has affected their livelihoods and many of those dependent on KBL.
The two employees, Letlhogile Mafoko, Process Operator and Koga Boitshwarelo, a full time Cashier at Gaborone Depot are calling for the lifting of the ban in support of their employees citing the direct impact on the employees and those dependent on them especially if the ban results in job losses.
In the founding affidavit of Neo Legwaila who is employed as the Country People Lead said the court has failed to take into considerations employees and those dependent on operations of the company.
She said the court did not consider the prejudice on the employees as a dismissal of the application.
“The court made much of the fact that KBL had been able to quantify some its financial losses and used this as a basis to conclude that KBL’s case was commercial in nature. But the court missed the point completely. The fact that a party was able to quantify its losses in monetary terms does not mean the entire cause of complaint was commercial in nature,” she said.
Legwaila submitted that the proceedings instituted by KBL were not for a financial claim, that they were public law by nature directed at challenging the improper exercise of public power in circumstances where the consequences were to unduly infringe on the rights of KBL and those affected.
She also pointed out that the court wrongly emphasized on the commercial importance as if KBL could receive some form of redress to any commercial losses in due course.
“I have pointed out that this is incorrect and there is no tenable claim for damages available in due course, nor could such damages be properly calculated. The livelihoods of the masses have been affected with the employees having taken a 10% pay cut while many operations have been suspended,” she said.
Meanwhile in its notice and grounds of appeal, KBL said the High Court was wrong that the only prejudice suffered was purely economic and that a constitutional damages was an alternative remedy in due course because the nature of claim was that constitutional rights to property, as well as the constitutional rights of its employees to dignity, privacy and liberty were being infringed.
KBL also noted that the court failed to consider that even if the claim for actual damages was available they would have to prove that the President or Director of Health Services was acting fraudulently when imposing the alcohol ban.
“The court erred in failing to exercise its discretion in terms of the rules of the court appropriately permitting the matter to be heard urgently. The issues raised were and had been determined by Chief Justice after consideration with the presiding judge to be issues of exceptional public importance,” reads the papers.
KBL wants the appeal upheld with costs and the judgment of the High Court be set aside or alternatively the matter be referred back for determination. The company also wants the matter be scheduled for hearing on merits on a date to be fixed if it was to be referred back to the High Court for determination.