Three panel of judges of the Court of Appeal; Isaac Lesetedi, Ian Kirby and Stephen Gaongalelwe say the dispute between Botswana Public Employees Union (BOPEU) and Botswana Federation of Public Sector Union (BOFEPUSU) were matters which with constructive engagement and an eye to the common good of their members did not require the parties to litigate to the bitter end; but rather to come together around the table and find a workable compromise and then move on to their more pressing mandate.
Justice Lesetedi said on Friday when he delivered a judgement in which Public Service Unions in the name of BOFEPUSU and BOPEU are embroiled in a protracted legal fight for turf and representation of their members in the Public Service Bargaining Council (PSBC).
The Court of Appeal says with the aid of hardened attitudes, a dispute which could easily have been resolved to the satisfaction of all even at the appeal hearing stage, was drawn to the ultimate legal determination, leaving the fighting parties bruised.
“The disputes were matters which with constructive engagement and an eye to the common good of their members did not require the parties to litigate to the bitter end, but rather to come together around the table and find a workable compromise and then move on to their more pressing mandate,” said Justice Lesetedi.
He said BOFEPUSU and BOPEU could then as parties to the council make necessary changes to the constitution.
“Egos seem to have ruled the roost. The ill will may well lie beyond this dispute,’ said Lesetedi adding that after the arguments were concluded the court warned the parties of the prospective perils of allowing the court to arrive at a purely legal assessment of the constitutional provisions, without parties first having the opportunity to agree to pursue any amendments to the constitution which they all might desire.
“They were given time to explore a possible settlement, but were unable to agree. They must now, for the moment live with the constitution as it stands. Both sides to the dispute cannot claim to have won in this appeal; they are worse off than when they started despite each having won a point here and there. Each must bear its own costs of this appeal. For that reason the appropriate order would be to make no order as to costs,” said Lesetedi.
However Court of Appeal ruled that a fresh determination shall be made using membership figures as of Friday June 17 2016 as to whether Botswana Federation of Public Sector Union acting joint arrangement still meets the membership threshold, in that one of its unions has a membership exceeding one third of all unionised public officers.
The determination shall further establish whether Botswana Public Employees Union meets the threshold and if it does so it shall be admitted as a member of the council, and the Botlhe Bargaining Forum, upon submitting to the general secretary all the necessary information shall be recognised as a trade union negotiating party.
“If it does not do so, the 2016 wage negotiations shall resume with the BOFEPUSU acting joint arrangement as the sole union party, provided that BOPEU shall be at liberty to apply at any time for membership of the council should it reach the threshold, by amalgamating with smaller unions or otherwise,” ruled Lesetedi.