Sunday, September 20, 2020

Dismissed Debswana employees appeal to High Court

Lerumo Mogobe, the lawyer representing the 461 former employees of Debswana who were dismissed from work in 2004 for having allegedly engaged in an illegal strike, has filed an appeal in the High Court against the judgment issued by Industrial Court judge, Harold Rahukya, on grounds that the judge erred in his judgment.

When dismissing the case on the 8 of February this year, Rahukya said that the case had not been brought before the Court within reasonable time as the law requires.

In his appeal, Mogobe said that the Court had erred in finding that the case was not instituted within reasonable time or as soon as possible.

Mogobe submitted that the matter was referred to the Industrial Court from the Commissioner of Labour within five months at worst and about three and half at best excluding holidays and weekends. Further that the Court had, in this matter, failed to keep to its past decisions when circumstances allowed it and that it was wrong for the Court to refuse to hear the case on merits when it had done so in the past.

He submitted that the Court had erred in denying the Botswana Mining Workers Union the right to have its dispute and grievances heard by placing undue emphasis on the perceived trampling of the integrity of the Court and unduly prejudicing the sustentative rights of the applicants, which, he said, is uncalled for and when the respondents being Debswana did not suffer any prejudice or when it was not likely to suffer any prejudices.

Mogobe also submitted that the judge erred in saying that there was no need for power of attorney or for the applicant’s lawyer to have wanted power of attorney before instituting proceedings with the Court despite a power struggle that ensued within the BMWU which was divided into two camps.
That contrary to what he had said, the BMWU is a corporate entity which can only litigate pursuant to a resolution and power of attorney. That the Court erred in holding that the need for finality over a matter that has not been heard on merits overweighed the substantive grievances and rights of applicants have or that the respondents had expectations of finality before the undue process of law.

That it had also erred in holding that the applicant’s case is devoid of merits when the grounds on merits were glossed and rushed over by the Court without in depth analysis.

That it also erred and misdirected itself in failing to properly apply and interpret Section 9(1) of the Trade and Dispute Act, which significantly provides that the Court shall not be bound by the rules of evidence or procedure and may disregard any technical irregularity which does not and is not likely to result in the miscarriage of justice.

On the issue of costs, which were awarded to the respondents, he submitted that the Court erred in doing so because the affidavit of service was not filed in Court files which were before the Court on the 21 October , 2007.

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Sunday Standard September 20 – 26

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