Monday, January 25, 2021

Radibe loses retirement case against government

April 11 2010: Botswana Teachers Union President Japhta Radibe’s efforts to have his dismissal from the Public Service in 2007 reversed hit a snag last week when Francistown High Court Judge Mphaphi Phumaphi upheld the decision of the Teaching Service Management.

Redibe, also a former Sedibelo Secondary School head, had approached the High Court arguing that the decision of the TSM to dismiss him, through a letter dated 7 March 2007, should be set aside as it was unlawful and of no legal force in law. He also wanted government to shoulder the costs of the application.

But Justice Phumaphi said that Radibe cannot contend that then TSM Director, Opelo Makhandlela’s decision was invalid, and in the same breath maintain that he was functus officio, because the latter argument would connote that the original decision was valid.

“Invalid ab initio means that the decision was as good as no decision at all. One cannot be funcuts officio when one has not made a decision. The principle of functus officio is applicable in court decisions, not administrative functionaries like the Director in this instance,” said Justice Phumaphi.

This principle, he continued, forbids the Court from revisiting or reviewing its own decisions. He also said that administrative functionaries are at large to revisit their decisions and correct mistakes in the normal course of things, unless specifically prevented by some legislation.
Radibe had also argued that the TSM Director was already biased as he had initially tried to retire him without a hearing, and that any attempt to rectify the situation did not really afford Radibe a fair hearing as contemplated by the legislation under which TSM was acting.

But Justice Phumaphi said that Radibe’s argument ignores the fact that TSM acknowledged an error and revoked the original action, and it was Radibe who took action to start the process afresh, which he said is untenable in his view.

He further said that Radibe had misconstrued the import of section 14 (3) and Regulations 10, which invests the Director with powers to retire a public officer in the interest of service. The section, he said, contemplates that when a Director has formed the opinion to retire a teacher, he shall inform him in the interest of public service.

“On the evidence before the court, there were several reasons advanced, particularly Radibe’s frequent absenteeism from work on union business, as per the letters written by the Director to Radibe on 3 November 2006 and 4 December, 2006. Upon receiving the correspondence, Radibe adopted an argumentative stance and challenged the reasons without making representations contemplated in terms of the Act,” he said.

He also said that Radibe was, not once but twice, given the reasons that prompted the consideration of his retirement in terms Regulations 10, but he let the opportunities pass.
He, therefore, ruled that Radibe was given a fair hearing as he was provided with reasons why he is being retired.

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