The six suspended Botswana Energy Regulatory Authority (BERA) board members have accused minerals minister Eric Molale of being a complainant and a judge in his own case.
The Minister of Mineral Resources, Green Technology and Energy Security, Molale suspended the BERA board over allegations of poor performance in May 2019.
Recently, he gave them a charge sheet containing seven counts of misconduct relating to the court process that the Chief Operations Officer (COO), Duncan Morotsi had instituted.
Essentially, the charges are to the effect that they defied the chairperson in defending action against Morotsi that the decision to dismiss Morotsi had been taken when the board was not properly constituted, that as a result BERA incurred legal costs and has thus suffered loss. They were given seven days to have responded.
Since the six were facing identical charges they also provided identical responses to Molale. In one of the responses, one of the accused said the statement of charge is inconsistent with the letter of suspension dated May 14, 2019 and that a decision has already been taken to dismiss and/or remove him from the board, which is unlawful.
“The rules of natural justice, in particular the nemo judex in causa sua in that the Minister, as the complainant, is also a judge in his own cause. I am being disciplined for offences, which allegedly occurred in July 2018, a period of which 12 months has since elapsed, and in terms of the Employment Act and our laws of labour I am entitled to be subjected to a disciplinary hearing within a reasonable time from the date on which the alleged misconducts arose. A period of 12 months is very unreasonable,” he said.
The suspended board member continued: “The statement of charge… referenced CMMGE 1/5/19 I (60) stipulates quite clearly that there is inquiry into my performance. One would by default assume that a performance appraisal against performance targets would follow suit. Unfortunately, I now face charges on misconduct”.
He submitted that in law, misconduct is wrongful, improper, or unlawful conduct motivated by premeditated or intentional purposes or by obstinate indifference to the consequences of one’s acts. “Performance on the other hand refers to the process by which a manager examines and evaluates an employee’s work behaviour by comparing it with pre-set standards. The two are not interchangeable or correlated either negatively or positively. They are simply two unrelated principles.”
He added that to suspend him with one and then charge him with the other is grossly irregular.
“A decision has already been taken to dismiss and/or remove me from the board, which is unlawful.
On November 29, 2018, way before my suspension on performance, and the current charges on misconduct The Gazette, a prominent local newspaper reported that Honourable Mr. Molale, the current minister had the week before stated quite plainly that he wanted to dissolve the board, but could not do so due to legal restraints, he is quoted verbatim, ‘It is just a matter of time. In fact, let me tell you.
I am not a patient man. My Ministry and I had already taken a decision to dissolve the BERA board, but I was stopped by our attorneys at the Attorney General (AG). I was told that I have to follow the right procedure,’ Molale said, adding that he has to allow some processes to take effect first before he can take action.”
He said even if he has raised concerns about the legality and veracity of the charges, he found himself duty bound to respond to them to create context, and to highlight glaring omissions of fact. Unfortunately, he explained there is also evidence of fraud on the part of the board secretary for falsifying board records to the extent that he was before suspension of the board facing a disciplinary process and the fact that the chief executive officer Rose Seretse was also facing possible disciplinary sanction on the basis of the principle of parity and on the basis of enjoying both a car allowance and the use of a car that needs to be highlighted.
He also said it is important to note that the chairperson Bernard Ndove, who has since resigned despite numerous written emails and telephonic communications, unreasonably refused to convene a meeting to ratify the decision of the committee of the board.
“It is worthwhile to note that the chairman was very sympathetic to the plight of Mr Morotsi and Ms Rose Seretse as they had assisted him with the sale of computers to this very organisation he led and also had a relationship with the contractor to the renovation of the BERA headquarters, at a cost which has ballooned from P5 million to P8 million on a building BERA does not own, something that the BERA board took great exception to and he was cognisant that he was next in line for an inquiry on impropriety.”
The suspended board members argue that the decision to dismiss Morotsi was not unlawful. “Mr Morotsi had sought to go to court to stop his disciplinary process on April 12, 2018 and Honourable Judge Molomo refused his urgent application as such we were by then acting within the tenets of law.”
Undertaking and finalising an internal disciplinary process cannot be cited as bringing the authority to disrepute, they argued.
They also argue that Seretse could not be part of the decision of the disciplinary process as she had been implicated in the matter.
The ad hoc committee of the board had found her conduct bordering on misdemeanour. Furthermore, attorney Mboki Chilisa on October 24, 2018 on his legal opinion recommended that a disciplinary process be undertaken against the CEO as there was a prima facie evidence of malfeasance on her part on the Morotsi matter as such it was inconceivable that she would have instituted a jurisdictional trigger.
Finally, the suspended board members noted that based on previous communication and the words uttered by Molale, a decision had already been made to remove them from the board, and that the purported charges were merely imposed on them to formalise the said removal.