Monday, March 30, 2020

Court slates BERA’s Rose Seretse’s lack of financial prudence

The Industrial Court has rapped Botswana Energy Regulatory Authority (BERA) chief executive officer (CEO) Rose Seretse over the knuckles for lack of financial prudence.Seretse and her management team peeved the court by using public resources for objectives that are non-beneficial to the organisation.  This emerged from a judgement delivered by the Industrial Court in a case in which the Director of Finance at BERA Chawada Machacha was challenging her dismissal from the employ of the organisation by Seretse. According to the court records, Machacha had successfully and temporarily interdicted BERA from taking disciplinary action against her.

The Court Order states that, “the disciplinary hearing scheduled for the 29th January 2020 is hereby stayed and interdicted until the finalisation of this application.”But it emerges from the court papers that BERA went ahead and called Machacha for a disciplinary hearing despite being temporarily interdicted from such.  Machacha did not turn up for the disciplinary hearing and Seretse went ahead and slapped her with a dismissal letter. Handing down judgement, Industrial Court judge Justice Isaac Bahuma found that “The conduct of the respondent (BERA) was clearly vindictive.” He also found that “What is even more reprehensible is that public office and resources were employed to achieve objectives that are totally non beneficial to the respondent as an organisation.”  Bahuma warned that “Those who lead public institutions are custodians of societal hopes and aspirations; the society does not expect them to pursue causes that bring into question the integrity of the organisation they lead.”  To show its displeasure at the conduct of the BERA management, the Industrial Court Judge cited a judgment by a South African Court which stated that “It is time for the courts to seriously consider holding officials who behave in the high handed manner described above personally liable for costs incurred.” 

Bahuma concurred saying “I respectively share the above sentiment.” “In this case because the unlawful actions of the management of the respondent is (at least so far) a once off incident, the Court will refrain from ordering the CEO to pay costs personally, such costs are awarded against the respondent on attorney and client scale given the fact that the applicant should be put out of pocket and also to mark the Court’s displeasure at the conduct of the respondent,” Bahuma said. He noted that BERA was informed through a letter that any disciplinary proceedings against Machacha would be unlawful regard being had to the rule nisi (temporary court order). “They ignored the letter. The applicants filed an urgent application to set aside the rule ni. Not only do they do this, they make nonexistent distinction between the disciplinary proceedings sought to be interdicted and the one that led to the unlawful dismissal. In the court’s view the respondents acted in a carefree manner warranting an order of costs,” said Bahuma.

According to the judge,  “The respondent(BERA’s) purported disciplinary action was meant to harass the applicant(Machacha) and it was vexatious. It put the applicant (in the words of Lord Gardner) in unnecessary trouble and expense. They have to bear the cost of the suit for this.”  The court found that Machacha’s purported dismissal was in violation of the rule nisi granted in her favour on 29 January 2020. “It is therefore a nullity. The respondent use the same set of facts to do what the rule nisi prohibited. This is not permissible. The dismissal of the applicant dated 26 February 2020 is unlawful and a nullity, it is hereby set aside. The applicant remains an employee of the respondent,” said Bahuma.

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