Former employees of the United States Agency for International Development Regional Centre for Southern Africa (USAID RCSA) have filed a case against the United States government at the High Court.
This after a protracted five-year labour dispute between the former employees and the United States government over separation packages for about a dozen of them as a result of the relocation of the USAID/RCSA office from Gaborone to Pretoria.
The former employees have filed an application to serve the American Government outside the country through Edictal Citation in terms of Order 10 of the High Court Rules after the American Embassy avoided and refused to appear at the Industrial Court since 2006 claiming that they were not properly served.
The former employees have instructed Otto Itumeleng Law Chambers and Mboki Chilisa of Chilisa, Collins Legal Consultants to serve USAID RCSA’s principal place of administration in Washington D.C with leave of court in accordance with the rules governing Edictal Citation (a form of service to a party outside the country).
The US Embassy in Gaborone, through the acting Public Affairs Officer, Stephen Wilger, said it would not comment on the matter.
The former employees have instituted summons claiming separation packages arising from termination of their contracts of employment with the USAID/RCSA. Their cause of action is premised on breach of contract due to USAID/RCSA’s failure to pay separation packages in terms of their contract agreement referred to as Employee Handbook for Local Staff 2002.
The aggrieved Batswana had previously filed a case at the Industrial Court of Botswana but the US government did not show up at the court claiming diplomatic immunity. The former employees’ collective opinion nevertheless is that their employment or engagement was not an act of sovereign nature, as the US Embassy would want them to believe, but mere private act that does not fall within the protection offered for the purpose of immunity.
They allege that “owing to the inviolability of the premises” they are unable to effect service at any of the US government official premises in Botswana. They allege the American embassy is using that as a way to frustrate service of process in respect of what could be proved as a matter of commercial or private nature and not governmental.
“The basis for this distinction is that there is an obligation on any foreign government which enters into commercial transaction to discharge its obligations just like other traders. If a foreign power defaults, then it succumbs to the jurisdiction of a domestic Court of the receiving state like all other persons,” lawyers representing the former employees proffer.
The former employees contend that they have tried in vain to get the matter resolved amicably before going to the courts and the United States government did not want to listen to them and failed to show up at the mediation meeting arranged by the Department of Labour in Gaborone.
The US embassy was served with summons through the Ministry of Foreign Affairs and International Cooperation – summons which were ignored.