Tuesday, May 26, 2020

Former Magistrate takes Khama to the Industrial Court

Industrial Court Judge Justice Marumo will on February 15 preside over a case in which expelled Ghanzi Principal Magistrate Thabo Malambane is suing President Ian Khama for unfair dismissal. Malambane is suing the president together with the Attorney General, Judicial Service Commission and the Administration of Justice.  In his court papers, Malambane is seeking an order that the decision to dismiss him from work was unlawful and he wants compensation instead of re-instatement.  Through his attorney, Aobakwe Monamo from Duma Boko & Co law firm, Malambane argues that the Attorney General, representing all the respondents, has failed to reply on merits and solely relies on points of law that they have not been served with the Statutory notice in terms of the State Proceedings Act and are further alleging that the Industrial Court has no jurisdiction on the matter as they are of the view it is a constitutional matter. Further, Malambane questions why the Attorney General wants Statutory notice despite having been engaged in the case since its initial stages as one Counsel Gulubane appeared at Mitigation stage representing the Respondents. President Khama expelled Malambane in April 2014 on accusations of insubordination. This was after he boycotted presiding over cases brought before his court and demanded that the Regional Magistrate should furnish him with an explanation as to why a case that was registered before him had been moved to Gaborone without his consent. After President Khama failed to turn up for a mediation meeting at the Labour department after the dismissal, the embattled former magistrate served government with notice of intention to sue for unfair dismissal. In his statutory notice of intention to sue, Malambane contends that his summary dismissal from the magistracy was unlawful in that he was not afforded any prior fair hearing. The then Acting Chief Justice Walia had ordered Malambane to resume his duties before his complaint was addressed but Malambane disregarded the order. Malambane maintained that the order or directive of the Acting Chief Justice calling on him to continue with his judicial duties was unlawful as it was tantamount to forcing a Judicial Officer to sit in court even when the said Judicial Officer saw that his seating in court before his complaint is resolved will perpetuate injustice to litigants. His defiance sealed his fate as former Permanent Secretary to the President Eric Molale informed him that President Khama had decided to fire him from office. “Consequently, I am directed to inform you that His Excellency has, in exercise of the powers vested in him by section 104 (2) (b) of the Constitution, decided to dismiss you from your position as Principal Magistrate with immediate effect”, Molale had written to him at the time. Malambane later reported President Khama to the Labour Department where the president was summoned to appear before a mediator on 19 June 2014. Khama however never showed up at the mediation meeting and this resulted in the mediator issuing a certificate under section 8 (11) of the Trade Dispute Act notifying both parties that they can refer the matter to the Industrial Court. Malambane’s lawyers served the Attorney General  with statutory notice papers on 25 June 2014 and demanded the relief within one month, failing of which he would proceed to the court to claim the relief. In his notice of relief, the 35 year-old Malambane wanted government to pay him a monthly salary of P34 710.69 until he attains the age of 60. He also wanted the government to pay 50% contribution towards his medical aid at P297 per month until he is 60 years of age. Among other things, Malambane wanted government to pay P3 834 per month towards his pension until he turns 60. He wants 789 Leave days converted into cash and Leave concession for 13 years at a cost of P14 300. He also wants government to bear the costs of suit. Malambane has since opened a private law firm in Ghanzi under the name Thabo Malambane Attorneys. Khama will be represented by Yarona Sharp from the Attorney General’s Chambers.

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Sunday Standard May 24 – 30

Digital copy of Sunday Standard issue of May 24 - 30, 2020.