Monday, September 21, 2020

Government loses first round in union deregistration case

Government this week lost its application that the High Court should dismiss a case in which the Botswana Federation of Public service Unions (BOFEPUSU) is appealing a decision by the Registrar of Trade Unions and Employers Organizations to strike the federation out of her register.

The Attorney General, representing government, argued that BOFEPUSU had not observed certain rules required before their case could be heard. They argued that BOFEPUSU’s case should be dismissed even before considering its merits, because the union did not give statutory notice, notifying Government of intent to sue.

They further argued that BOFEPUSU had not followed the procedural provision by Order 61 of the High Court rules, that the appeal ought to have been filed by way of review. This means that BOFEPUSU should have applied to have the ruling of the Registrar set aside while contesting its irregularity. They argued before Justice Walia that since BOFEPUSU did not serve or enjoin the Registrar in the legal proceedings, their case must fail.

In their response, the union argued that they had in fact cited the Attorney General on behalf of the Registrar. Again, assuming they did not, “that omission was inadequate to kill our case,” stated Andrew Motsamai, President of BOFEPUSU.

The union further stated in its defense that even if they had not cited the Registrar, it was still well within the realm of the courts’ mandate to order, that the Registrar be enjoined.

After hearing all sides of the debate, Justice Walia found that “there was no need for the Union to have filed a statutory notice as that was an appeal case and not action.”

BOFEPUSU, was, however instructed to have served the Registrar of Trade Unions and Employers organization within 14 days, spanning from Wednesday this past week.

On the issue of the union not following Order 61 as the correct procedure, BOFEPUSU was exonerated on the basis that they had in fact observed the right procedure as mandated by Order 78 of the High Court rules.

Apparently, the distinction between the two Orders lay in the fact that 61 provides for an application being made by way of only stating the intent to appeal a decision taken, with the presupposition that it’s not the merits that are a subject of contest, rather than the fairness or regularity of the manner in which it was handled or decided upon.

Order 78, on the other hand, allows for the appeal being accompanied by an affidavit or evidence, which was one element that was queried by the Attorney General in their heads of argument.

Justice Walia ruled that matter shall be heard on a day to be determined.
The crux of the union’s case, according to Motsamai, was that the Registrar may have misdirected herself in thinking that it was a genuine mistake to have registered them, only to strike them out long afterwards.

Meanwhile, speculation is rife that whatever the decision of the courts, the stakes would be high given political implications linked to the case.

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