The Accountant General and the Directorate on Public Service Management (DPSM) have clashed over the decision by the former to terminate organisational rights that Botswana Landboards, Local Authorities and Health Workers Union (BLLAWU) have enjoyed which include among others assistance with deduction of loan repayments.
This emerged in a case in which the union filed court papers seeking an interim interdict against the Accountant General, DPSM, and the Attorney General following a decision by Accountant General to terminate an agreement between the Union and DPSM to deduct and collect union subscriptions on behalf of the union from its employees. The deductions also involve provision of a deduction code to the unions who then compile a list of their members qualifying for such deductions.
Court papers show that the Accountant General had sent a savingram to DPSM dated 24 April 2015 indicating that except for the staff members of Department of Clinical Services who were being transitioned from local authorities to Central Government, it had never had any agreement for loan deductions with the Union. According to the savingram from Accountant General, to DPSM, it was the former’s position that the deductions at sources for Department of Clinical Services would continue only until the loan balances were cleared and the deduction code would be terminated.
The Court heard that the savingram from Accountant General to DPSM was a response to an earlier savingram dated 9 February 2015 by DPSM in which the DPSM had requested the Accountant General that “it should restore the deduction code to facilitate deductions from the union’s members to financial institutions.” In the savingram in question, DPSM makes it clear to Accountant General that the “none deduction which is now in the third month has the potential of straining their relations with third parties such as financial institutions and may also tarnish members future relations with such institutions.”
In response to DPSM’s savingram, the Accountant General states that “after numerous consultations between my Office and the Ministry of Health, a decision was made to facilitate deductions of these loans until balances are cleared and that no new additional new loans will be accepted. The arrangement with Ministry of Health was a special dispensation looking at the circumstances at the time. Our understanding was that once all loans have been cleared, the code will be terminated.” Much to the embarrassment of the Accountant General, when the matter was taken before the court, DPSM did not file opposing papers to the union’s application.
In his ruling, Justice Zein Kebonang noted that the DPSM had in fact signed a labour agreement with the union. In terms of the agreement DPSM bound itself to deduct and collect union subscriptions on behalf of the union from its employees. “Although the collective labour agreement makes no reference to lending facilities by unions, it appears that as a matter of practice, DPSM did not restrict itself from collecting subscription fees but assisted the union with collection and withholding of loan repayments from its employees through the Accountant General,” said the judge.
The judge said the obligation to collect and withhold the loans was on the basis of the labour agreement signed between the union and DPSM. Despite the centrality of DPSM to the dispute, DPSM did not file any opposing affidavit and no reasons were advanced to the Union and Court for not filing the papers. Asked by Justice Kebonang if DPSM had filed opposing papers to the union’s application Otsile Rammidi of the Attorney General Chambers answered in the negative. He explained that it was not necessary for DPSM to have filed opposing papers because the issues required for determination was for Accountant General and not DPSM.
Kebonang said the argument was made notwithstanding that there were specific orders being sought against DPSM. “As against the Second Respondent (DPSM), the factual position was therefore because there was no answering affidavit from it, the Court had uncontested affidavits of the Applicant (Union) before it to rely upon,” said the judge. He said DPSM was obliged to file its opposition papers irrespective of what it thought of the union’s application. Therefore the judge granted the union an interim interdict it sought against DPSM. “The Second Respondent (DPSM) chose not to file any opposing papers and therefore opened itself up to the orders sought against it. Against the Second Respondent the matter proceeds essentially as an uncontested application.
It was for this reason that I refuse to make an order against the 1st Respondent and Third Respondent but grant interim interdict against the Second Respondent (DPSM)” said Justice Kebonang in his ruling. BLLAWU was represented by Rantao and Kewagamang Attorneys.