Sunday, January 29, 2023

Ignoring court orders has become Government Enclave norm

If you are a senior civil servant and the High Court issues a court order that requires you to take certain administrative action within a stipulated period of time, should you comply? That is up to you but experience shows that even if you don’t, no punitive action will be taken against you. The case of Carter Morupisi that just ended at the Gaborone High Court shows just how far senior civil servants can go in disregarding High Court orders.

In 2013, the manual workers union – whose members are members of and contribute to the Botswana Public Officers Pension Fund but are not represented in its Board of Trustees, challenged this status quo through the courts. They engaged Collins Chilisa Consultants, a Gaborone law firm, to secure representation on the BPOPF Board. Resultantly, Mboki Chilisa, a partner at the firm, obtained a court order from Justice Tshepo Motswagole compelling BPOPF to suspend all Board activities until the union representatives were seated as Board members. However, before the order was complied with, Chilisa got wind of plans by the Board to engage a company called Capital Management Botswana to manage a portion of its funds. Such plans were clearly in contravention of the High Court order because they clearly showed that the Board had not suspended its operations as Justice Motswagole had ordered.

BPOPF’s Legal Affairs Manager and Board Secretary at the time, Musa Nleya, advised then Acting CEO, Lesedi Moakofhi, about the legal inadvisability of going ahead with a deal that clearly contravened a High Court order. At this time, Morupisi, substantively the Director of the Directorate of Public Service Management, was the Chairperson of the Board. With Moakofhi’s full acquiescence and against what the High Court had ordered, Morupisi went ahead and contracted Board business that such order had explicitly prohibited. It is unclear why the manual workers union didn’t make out a contempt-of-court application but this action was in contempt of a court order.

More importantly, this action fits into a pattern of senior civil servants, most of whom work from the government district in central Gaborone, failing to do what the High Court has explicitly ordered them to. Not all ministries and government departments are domiciled at that district but Government Enclave, where the Office of the President is, is the nerve centre of all government operations.

Some five years ago, Morupisi, then the most senior civil servant, was part of a contempt-of-court matter that also involved then Director of the Public Service Management, Ruth Maphorisa. The duo had failed to comply with a court of order in a case that was brought by the Botswana Federation of Public Private, Parastatal Sector Union (BOFEPUSU).  Interestingly, it was Justice Motswagole who had issued that order.  BOFEPUSU made an urgent application to the High Court for the imprisonment of both Morupisi and Maphorisa for defying the court order. Neither was imprisoned and to date no senior civil servant has ever been imprisoned for ignoring a High Court order.

In 2018, the High Court ordered Air Botswana to pay back arrears of staff salary that ran into millions of pula. The order was a result of the Air Botswana Employees Union (ABEU) taking the airline to court after it failed to implement a legally binding agreement that both parties had signed to close gaps in the airline’s salary structure. The order from Justice Michael Leburu was very specific: pay employees within 30 days from the date that the order was issued. The 30 days came and went without management complying with the order and no punitive action was taken against responsible parties.

Interestingly, aggrieved parties, mostly trade unions, typically put on a huge dog-and-pony show in the form of threats that almost always come to nought. With particular regard to the Air Botswana case, the Union’s chairperson told Sunday Standard that management’s intransigence “left the union with no option but to go back to court.” In very few cases has going back to court borne fruit and therein lies the rub.

Senior government officials required to comply with a High Court luxuriate in knowledge gleaned from decades-old experience that one can choose to ignore a court order and suffer no consequences. This class of civil servants are colleagues and it is easy to predict what advice one who has been slapped with such order will get from colleagues that s/he consults with. Such colleagues would themselves have been ignored such orders over decades and suffered no punitive action.

In an alternative universe in which failure to comply with a court order definitely resulted in prompt enforcement, there would be no appetite for foot-dragging because the consequences would be grave. No one would want to risk imprisonment, with all its variegated forms of hardship, from bad food to having to deal with heavy-breathing prison cooks subtly communicating with lavish protein portions to slogging through real manual work a million times more laborious than ceremonially shoving a few spadesful of dirt at a tree-planting ceremony. 

However, the problem may be bigger than failure to comply but in the law itself. Part of the reason why that universe will remain so is that the same courts that issue orders they want complied with are not responsible for the actual enforcement of such orders. A trade unionist with first-hand experience of litigating around these orders says that the major difficulty is that aggrieved parties are themselves required to return to court to seek another order to enforce an earlier one. A good example with regard to the latter is the Air Botswana returning to court to make a contempt-of-court case and seeking a new order to punish culprits through imprisonment.

However, seeking additional orders comes with quite substantial cost. All too often, parties that fail to comply with court orders are deep-pocketed and can deploy high-priced lawyers who can play the legal game to ensure that the order remains unenforced for months if not years on end. In cases where a litigant favoured by such order is shallow-pocketed, the legal process can favour the one refusing to comply. In one respect, the latter means that a party will not suffer any consequences when a follow-up contempt-of-court application is not brought against the defaulter.

The ironic extent of the problem is dispiriting. Years ago, a High Court judge ordered his employer – the Administration of Justice – to pay a service provider a long-standing debt. The AoJ itself failed to comply with such order. Why should it have done so? History is replete with examples that show that there are no real consequences to not complying with court orders.

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