A magistrate has accused the Administration of Justice headed by Chief Justice Maruping Dibotelo of flouting the procedures required in the transfer process.
Senior Magistrate Daniel Nkau states in a letter dated 17 April 2013, addressed to the outgoing Master and Registrar of the High Court, Godfrey Nthomiwa, and copied to, among others, Dibotelo that contrary to the provisions of laws of Botswana, he was never consulted on his transfer.
Nkau said the transfer is unlawful because it does not conform to the legalities of a transfer.
“This, on its own, shows total disregard from your office of my welfare as an officer. The rules of fairness and equity, which I have no iota of doubt that your respectable office is well-versed in, dictates that before a drastic decision such as transfer is taken, one must be consulted,” said Nkau.
He added that “did your respectable office do that? The answer is no. What does that demonstrate, a flawed administrative exercise which I have no scintilla of doubt should not be allowed to persist”.
Nkau stated that the procedure adopted in his transfer is flawed as it does not conform to the dictates of administrative law which is procedural fairness, substantive fairness and equity hence illegal.
Nkau said he has one year and three months in Palapye after being transferred from Gaborone Court and even then he was not consulted.
“Likewise, I have expected your office to know better that violation of the dictates of the administrative rules of fairness,” he said.
A single parent of a three-year-old child, Nkau said the transfers which are done without consultation had impacted negatively on his family saying his child had to stay the whole of last year without attending school because he was only given three days to leave Gaborone.
“What happens to the tuition fees; do I have to abandon same, who is going to refund me? For this reason my daughter will be highly prejudiced by this transfer…I urge your respectable office to be considerate of my situation. A happy officer yields good results and ultimately the public will best be served,” he said.
According to Nkau, a transfer decision, before taken, must conform to the rules of equity in that not only the interest of the employer must be taken into account but also the interest of the employee.
He said the transfer was illegal because his interests were never considered. “In light of the aforementioned reasons, I do not accede to this transfer as I deem it not only prejudicial to me but unlawful,” he said.
Replying, in a letter dated 30 July 2013, Nthomiwa reminded Nkau that “Tsabong is experiencing problems at the moment of cases that are beyond the jurisdiction of the Magistrate Grade 111 not being attended to when you should have been there to attend to them.”
Nthomiwa also warned Nkau that “regrettably this is not the time to compete on legal principles but to deal with problems on the ground relating to litigants and other court users. Legal principles can be traversed before court but for now you are expected to report to your new duty station with immediate effect”.
In his last correspondence to Nkau, Nthomiwa states that Dibotelo had noted the contents of his letter and the concerns raised but directed “me to advise to proceed to your new duty station…”
“That meant that he had noted your complaint about lack of consultation and the legal position you advanced but in exercising his powers under Section 10 of the Magistrates Courts Act, he has directed that in view of the needs of that station you should proceed on your transfer. By copy of this letter the Chief Magistrate of Palapye if directed not to allocate any work to you,” stated Nthomiwa.