The Court of Appeal President Justice Ian Kirby on Monday revealed that the case in which the government is appealing the reinstatement of over 3000 dismissed essential service public servants is a complex case.
Kirby revealed this after a contingent of experienced Advocates from South Africa, representing both the workers and government, wrapped up their arguments at a fully packed Court of Appeal session that was attended by Botswana Democratic Party (BDP) Chairman Daniel Kwelagobe and Botswana Congress Party (BCP) President, Dumelang Saleshando.
“This is a complex matter. We need to take time to read the heads of arguments and authorities cited. We will reserve judgement to a date to be communicated to both parties,” said Kirby.
Advocate Anton Myburgh, who was instructed by Collins and Newman law firm, which is representing the government in the case, and Advocate Wim Trengove SC alongside Martin Brassy, instructed by attorneys Mboki Chilisa and by Tshiamo Rantao, respectively, on behalf of workers locked horns over key issues, such as whether the employees deserved to have been afforded a hearing before dismissal and the reasons why such a hearing could have been attainable given the circumstances that prevailed.
The exchange between the experienced advocates started shortly after Myburg had put up a spirited voluminous application justifying why the government had dismissed the employees in question.
He suggested that since the strike by essential service employees had been declared illegal by the Industrial Court, the Botswana Federation of Public Service Union was under obligation to inform its members to return to work.
According to Myburg, there are three key issues that are peculiar to the case: the strike by essential service workers was illegal; secondly, the Union was under obligation to instruct workers to return to work; and, thirdly, the union engineered the continuation of the strike by essential service employees.
The government, Myburg argued, was faced with an illegal strike by its employees who fall under the essential service category.
“There is only one question that this court must ask itself; whether the strike was illegal and if it was illegal then the employees should have gone back to work when it was declared illegal,” he said.
Falling short of laying blame at BOFEPUSU’s door for the dismissal of its members, Myburg argued that it was the duty of the union to protect its members from dismissal. He added that BOFEPUSU was afforded an opportunity to protect its members from an impending dismissal ultimatum through a meeting held between the union and government representatives on May 12, 2011, but the Union representatives “said nothing at the meeting”.
But Trengove said the decision to dismiss the employees from work was unlawful.
“What the employer could have done was to engage the employees on its course of action; that it intended to adopt the dismissal strategy. The employer did not afford the employees any hearing at all,” he said.
Trengove said that strikers are entitled to a hearing; the principle of fair hearing before dismissal was not applied.
Asked by Justice Isaac Lesetedi who was part of a five-man bench if the issuance of a notice through public media was not another way of communicating to the strikers, Trengove conceded that it would be appropriate to issue a notice through a public media but it was not an exclusive means of communication.
For his part, Brassy wondered if the decision to dismiss the workers was exercised in the public interest. “The workers could have been also given an opportunity to have their dismissal reversed,” he said.
Kirby reserved judgment to a later date “to be communicated to the lawyers representing both parties”.