Two revered South African advocates who recently represented the Botswana Federation of Public Sector Unions (BOFEPUSU) in a case in which the latter was challenging the dismissal of about 3 000 essential service employees have criticized Justice Ian Kirby’s judgment as pro-government.
Advocate Wim Trengove, regarded as a leading legal mind in South Africa said this week that the judgement is a bad precedent for the reason that it fails to state why the dismissed lot could not be given a collective hearing prior to their dismissal.
“I think the judgment is wrong because it fails to address or even properly engage with our main argument that government was at least obliged to afford the striking workers a collective hearing by engaging with the unions and calling upon them to make representations on government’s proposed mass dismissal of the striking workers,” says Trengove in a feedback to The Sunday Standard.
In his judgement, Kirby has stated that the Union could have promptly approached government and make representation on behalf of its members instead of trying to neutralize the Industrial Court order that had declared the strike by essential service workers illegal.
“It is not an answer, as the court seems to suggest in paragraphs 128 and 129, to say that the unions could have spoken up by unilaterally making representations to government. Government had steadfastly bypassed the unions and had never given any indication that it was open to representations by the unions on its plan to dismiss the striking workers,” states Trengove
“On the contrary, its public announcements always made it clear that government had made up its mind and was not in the least interested in what the unions might have to say. It accordingly did not afford the striking workers a collective opportunity to make representations and the judgment never explains why it was reasonable in the circumstances to dispense with this form of audi,” he further adds.
Falling short of scorning the judgment, another senior Advocate, Martin Brassey, said in a terse response that the Court’s findings are appalling.
“The Government will be pleased that the court is willing to deliver for it,” said Martin Brassey in a terse feedback to the Sunday Standard.
Brassey is an acclaimed scholar who has published extensively in labour law and has held several appointments as an acting judge of the South African Labour Court and High Court.
Brassey has praised the court for a nicely written judgement but stated that the content of the judgement was, however, incoherent
“In contrast, those who value legal coherence will struggle to understand it, though it is prettily written,” adds Brassey.
Justice Kirby has held that the dismissals of scores of essential service workers who took part in an illegal strike in 2011 was fair because their continued absence from work constituted criminal offence because they were deliberately endangering life and threatening the safety of government property.
