Former Permanent Secretary in the Ministry of Works and Transport, Carter Morupisi, might find himself facing a monolithic legal battle over the dismissal of 24 senior public servants working for the Department of Building and Electrical Services and the Central Transport Organisation.
Chief Justice Maruping Dibotelo will on September 20th hear an interlocutory application filed by the Attorney General, who argues that they have been improperly cited as respondents in the case because the decision to dismiss the employees was taken by Morupisi and not by government. They want Morupisi to be cited in their stead.
“The applicants have not cited the person whose decision they seek to review, and they have not set out any justifiable basis for suing the Attorney General for a decision made by a public office,” they said.
The Attorney General also seeks to draw a distinction between the actions of government and those of a public officer.
“We humbly submit that a decision made by a civil servant cannot be brought in terms of a provision dealing with suits against government,” argued the Attorney General.
However, BOPEU attorney Tshiamo Rantao argues that the Attorney General has been cited as a representative of the Permanent Secretary as per Section 3 of the State Proceedings Act, which states that actions by or against government shall be instituted against the Attorney General.
Rantao argued that public officers can be properly classified as government in recognition of the fact that they are responsible for the business of government.
They also maintained that there will be no prejudice in the amendment of the citation in view of the fact that Morupisi has filed answering affidavits addressing BOPEU’s complaints.
The legal suit comes in the wake of massive dismissals and early retirements of public servants, which has raised a brouhaha from public service unions.
The former public servants, through Botswana Public Employees Union, want Morupisi’s decision to be set aside and for government to pay the costs of the suit.
BOPEU also want Morupisi’s decision to be set aside because it is procedurally unfair and is ultra vires General Orders 18:3. They maintain that they had a legitimate expectation that they will not be subjected to early retirement. The employees also insist that Morupisi failed to apply his mind to the facts and acted unreasonably. They maintain that Morupisi was wrong in treating the fact that they were good performers as irrelevant, failing to consider their service history and relying on untested reports.
The defence, however, argues that the section under which the officers were retired does not mention performance as a factor to be considered.
“The decision to retire a star performer cannot be a basis for asserting irrationality and unreasonableness,” they said.
At this point, it is not clear if Morupisi will seek his own counsel or if the attorney General will later make an application to represent him.
In the end Rantao conceded and made an application for Morupisi to be cited as the respondent in place of government. There are conflicting authorities as to whether it was improper to cite the Attorney General instead of Morupisi. Rantao eventually reconsidered and applied for Morupisi to be cited to avoid putting the court through unnecessary academic exercise.