Sunday, December 5, 2021

Court allows love-struck BDF couple to proceed with case

The High Court has given the greenlight to a couple, both former members of the Botswana Defence Force, to seek to proceed with a case in which they seek reinstatement to army service.

Tlhabang Thapisang and Kozondu Uariua were dismissed from the army in October last year because they were engaged in a romantic relationship which the army regulations purportedly don’t permit. As other armies across the world, the BDF maintains regulations that govern dating and fraternisation among officers and enlisted soldiers. In the case of the United States, the senior ranking officer is considered to have greater ability to promptly discontinue such relationship but both soldiers are considered equally accountable.

In terms of the BDF’s Policy on Fraternisation and Sexual Harassment, Uariua (a private) was not supposed to date Thapisang who, as a lieutenant, was 11 ranks above him. When found out in 2012, the couple was hauled before a military tribunal, tried, found guilty and sentenced. However, it continued with its relationship and was kicked out of the army last year. It now wants to be reinstated but the case almost didn’t see the light of day because the couple missed the legal deadline to file its claim.

As a matter of judicial practice, review proceedings should be instituted within four months from the date on which a decision one wants reviewed was made. Mishap in the form of financial challenges caused by joblessness, unpaid terminal benefits, Christmas holiday break and her lawyers returning from the holidays to give priority to urgent cases forced Thapisang to file her claim one month and 10 days late. “… not an inordinate delay which warrants dismissal of my application,” she pleads in her court papers. Last Monday, when the matter started in earnest, her lawyer, Malcolm Gobhoza, formally made a condonation (forgiveness) application before Justice Zein Kebonang.

The state attorney, Tshepo Kgaswanyane, didn’t oppose the application, the final outcome of which was the court granting the condonation. Citing the “sensitivity” of the matter, Kebonang said he would allow Thapisang to file out of time. This means that the court can now tackle issues that she has placed before it. Is the army Policy on Fraternisation and Sexual Harassment that she and her lover fell foul of lawful? Should she have been punished twice? Who between the BDF commander, Lieutenant General Gaolathe Galebotswe and President Ian Khama, as commander-in-chief of the army, should have fired her?

If the BDF Act, which supersedes the Policy on Fraternisation and Sexual Harassment, says nothing about fraternisation, can any punitive action be lawfully taken against officers who fraternise? Giving clarity to these issues would not only resolve this particular matter but would also help the BDF itself.

In a new dispensation when women are being integrated into its ranks, the judgement may give direction as to how the army should rebuild its legal infrastructure. The trial phase lies yonder; at this point, the court is just straightening out a few kinks to prepare for the day (if it comes at all) when evidence will be heard. Much like he urged all other lawyers whose cases came before and after this one, Kebonang’s parting shot to both Gobhoza and Kgaswanyane was, “You may want to settle out of court.”

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