Thursday, June 13, 2024

BIUST appeals whistleblower judgement

Botswana International University of Science & Technology (BUIST) has filed an appeal against the refusal by the High Court to interdict a suspended employee from disclosing “confidential” information belonging to Vice Chancellor Professor Otlogetswe Totolo.

The university failed to convince the High Court to prohibit the employee, Malatsi Gilani, from sharing certain information about Totolo.

Gilani had written a letter the Chairperson of the Human Resource Committee of the Council accusing the Vice Chancellor of mismanagement and improper procurement of university assets.

Dismissing the application by BIUST, Justice Reuben Lekorwe said the release of the confidential information to the members of the Council was for the limited purpose of investigation of the alleged impropriety and to the Union, for purposes of advice and possible representation.

“The disclosure in my view, is one protected under the whistleblowing provisions. This is one case where, I think, the public interest in whistleblowing must trump the employer’s interest in maintaining confidentiality.”

BIUST has now appealed the ruling on the basis that the High Court erred and misdirected itself in determining whether the disclosure of confidential information was protected under whistle blowing provisions without affording the parties an opportunity to make representations.

“In their pleadings, the parties did not address the Whistleblowing Act and its implications in this matter; At the hearing, the parties did not make representations to the Court a quo on the application of the Whistleblowing Act in this matter; As such, the court a quo made a determination mero motu on the applicability of the Whistleblowing Act without affording the parties a hearing.”

BIUST, through their lawyer Mboki Chilisa argues further that the High Court erred and misdirected itself in finding that the disclosure of the confidential information by Gilani was one protected under the whistleblowing provisions.

“The disclosure of the confidential information did not meet the requirements of section 4 of the Whistleblowing Act in that the disclosure was not made in good faith and was not made to an authorized person. The disclosure is thus not one protected by the whistle blowing provisions.”

BIUST says the Court also erred and misdirected itself in finding that the confidential information is already in the public domain and thus Gilani cannot be interdicted.

“Whilst the confidential information has already been leaked to the Botswana Sectors of Educators Trade Union (BOSETU), the Respondent still has the ability to leak the confidential information to other third parties. In his capacity as Council member, the Respondent has access to other confidential information which he can still leak not only to BOSETU but other third parties. The Court a quo erred and misdirected by failing to find that the disclosure of confidential information by the Respondent to BOSETU was not protected by privilege.”

BIUST wants the Court of Appeal to set aside the Order of the lower court and substitute it with an order interdicting the employee and restricting him from continuing the publication and/or dissemination and/or distribution of the Appellant’s confidential information.

Earlier last week a report conducted by the BIUST Council cleared Totolo of any wrongdoing, dismissing all allegations of corruption and abuse of office by the Vice Chancellor.

Several allegations ranging from abuse of University resources and corruption against Professor Totolo were brought to the attention of the University‘s Council by Gilani late last year. In a report seen by this publication, the Council’s Human Resource Committee held an inquiry on 14th 15th and 16th November 2022 to ascertain the facts of the allegations. At the end of the inquiry, the committee exonerated Professor Totolo of any wrongdoing, finding that he had acted within the confines of the University’s rule book.

“In conclusion, these allegations are also without merit and points to a malicious intent of tarnishing the University name and that of the Vice Chancellor without any foundation. It is alarming to note that the complainant has gone to great length of getting evidence about the Vice Chancellor’s personal life to build a case against him and the University,” the report said.


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