Wednesday, December 6, 2023

State in forum shopping row

Government is being accused of forum shopping after it filed papers before the Court of Appeal to strike down Justice Tshepo Motswagole’s judgment that set aside a 3 percent salary increment to public service officers who fall within the scope of the Public Service Bargaining Council (PSBC).

Botswana Federation of Public Sector Unions (BOFEPUSU)’s attorneys argue that government should have followed the normal procedure by approaching Justice Motswagole’s court and sought a leave to appeal instead of approaching the appeals court.

“The application is an abuse of court process; they are forum shopping at the Court of Appeal,” stated BOFEPUSU lawyer Mboki Chilisa of Collins and Chilisa Consultants when responding to the government’s appeal application.

‘What they are doing undermines the rule of procedure. The Applicants should, in the first instance seek a stay of execution from the judge who delivered the judgement rather than forum shopping at the High Court,” said Chilisa.

On government’s argument that its payroll would be thrown into chaos should the judgment be implemented, Chilisa said the State should bring in an affidavit of an expert to that effect.

“The applicants saw Motswagole J taking issue with that and now they are running to the Court of Appeal. Why can’t they bring evidence of an expert instead of abusing court process,” he said.

Government says its payroll system is heading for chaos should it comply with the order of Justice Motswagole setting aside a 3 percent salary increment and prayed for the stay of execution of Motswagole’s judgement.

Acting Director of Public Service Management, Keba Nyathi states that the government payroll computer system has already been programmed to pay the 3 percent increment.

She said the 3 percent not only affects salaries but other related benefits such as leave pay; overtime pay, scarce skills allowance; pension fund contributions and medical aid contributions.

She said reversing this position requires a complex highly technical expertise that the Government does not have within workforce.

“This will require the Government to source an expert from overseas at great cost to the Government. If the expert comes and reverses the payment and the later succeeds, the expert will once again have to fly in, gain at the expense, to return the position to what it was in the first place,” said Nyathi.

She said the cost here will not only for the expert but also for the remuneration of the officers who will be assigned to work with him/her.

She further states that the many public employees who have been receiving the 3 percent increment for the last 12 months have arranged their lives and affairs based on their numeration and reversing the situation will undoubtedly affect them.

“There are many other employees who joined the public service after the 3 percent increment was paid out. This applies to both at central government level and local authorities. This group of employees benefited from the 3 percent increment in so far as their in initial offers of employment had factored in the increment already-based on the principle of equal pay for work of equal value,” said Nyathi.  

She further states that “They joined the public service on the strength of agreed salary that includes the 3 percent increase. If that increase is to be reverse, it is likely to affect these employees by reducing their salaries.”  

Nyathi said government currently experiences high turnout of staff due to unattractive remuneration packages.

“ The many employees who joined the public service after the 3 percent increment was paid out, attracted by the improved remuneration, may leave government if their remuneration is reduced,” said Nyathi.


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