Francistown High Court Judge President Zibani Makhwade has ordered the Botswana Defence Force (BDF) to reinstate its employee Semaseko Semaseko, who was fired by the military after he was accused of theft.
According to court documents, the plaintiff (Semaseko) was employed by the BDF as an auto mechanic and was based at Selibe Phikwe BDF Camp. His employment was subject to the Public Service Act.
In January 2015 the plaintiff was subjected to disciplinary hearing and was accused of stealing a Land Rover Crankshaft and two Land Rover Transfer Case Oil seals. He was charged with Acts of theft contrary to Section 27(3) of the Public Service Act. At the end of the disciplinary hearing a recommendation was made by the BDF for the dismissal of the plaintiff. He was subsequently dismissed from employment.
The BDF Commander was cited as first respondent in the matter while the Attorney General was cited as second respondent
Through his lawyer, David Olatotse he argued in court that he was dismissed on mere allegations without evidence to prove that he had stolen the items. He said in his evidence that he had taken the crankshaft out of the workshop for purposes of taking some measurements and returned it to the workshop. He however admitted that he took it without prior authorization out of the workshop.
Meanwhile, the evidence presented on behalf of the defendant was that the plaintiff was charged with the Acts of theft of the crankshaft because he had not obtained permission to take it out of the workshop. The defendant’s position was also that there was a procedure for recording items when they were removed from the workshop. The defendant also argued that the plaintiff should not be reinstated as there was no longer trust between the two parties.
The plaintiff however admitted in his evidence that there was a procedure which was not followed. According to evidence before court, by the time he was confronted with the crankshaft theft allegation he had returned it to the workshop.
Concerning the oil seals found in his possession the plaintiff told court in his evidence that he made a confession before the police for stealing them because of the police pressure as they threatened him with indefinite detention. He even revealed during the disciplinary hearing and in court that the oil seals were his as he bought them from an auction sale conducted by the BDF. He produced receipts which reflected Lot numbers. The plaintiff also said that he was not afforded a fair hearing by the defendant more so that his superior, one Mmolai was not called to give evidence which was very important to do.
Giving his verdict, Justice Makhwade said it is clear that no sufficient evidence was presented to justify the dismissal of the plaintiff. He said there was no clear proof that the plaintiff stole the crankshafts. The Judge also said in part of his judgment that it was incumbent upon the defendant to lead sound evidence that indeed the oil seals found in the possession of the plaintiff belonged to the defendant. He said it was common cause that other items were found when the plaintiff’s place was searched which did not form the subject of any charge. Justice Makhwade said the defendant did not adequately apply its mind to the issues in coming to the conclusion that it came to.
“For the reasons stated above the following order is made; that the dismissal of the plaintiff was unlawful, that the plaintiff be reinstated to his employment and be paid arrears entitlements including any annual increment he would have been entitled to had he not been dismissed. The defendant shall pay the plaintiff costs on a party and party basis,” concluded the Judge.
