The country’s four public sector unions have engaged a South African Advocate in their bid to have the High Court overturn a statutory instrument that limits the right of teachers, veterinary workers and diamond sorters and polishers from engaging in strikes.
Alec Freud, Senior Counsel from the Cape Town bar who specialises in pensions and labour issues, is representing the Botswana┬áPublic Employees’ Union, the Botswana Teachers’ Union, Botswana┬áSecondary Sector of Educators Union and the┬áNational Amalgamated Local & Central Government & Parastatal Worker’s Union as they seek the High Court to reverse the hastily promulgated Statutory Instrument No. 57 on essential services.
The Unions are seeking the High Court to invalidate Section 49 of the Trade Disputes Act and of the amendment by the Minister of the Schedule to the Trade Disputes Act (TDA), which sets out the list of essential services.
The amendment was effected last year through Statutory Instrument no.57.
Unions argue, among others, that the amendment was promulgated in the exercise of powers purportedly conferred on the Minister by Section 49 of the TDA but that such provision is itself ultra vires Section 86 of the Constitution.
The Unions also argue that the amendment is ultra vires Section 144 of the Employment Act because the Minister failed to consult the Labour Advisory Board.
The State lawyers argue that while the consultations were not conclusive, it does not mean there was no consultation.
The Unions argue that the amendment is ultra vires Section 9(1) of the Statutory Instruments Act because that provision does not empower the Minister to re-issue a statutory instrument, which is identical to one which the National Assembly has resolved to annul.
The Unions further argue that by placing a limitation on the right to strike which is not reasonably justifiable in a democratic society the amendment is ultra vires Section 13 of the Constitution raising a freedom of association argument.
But State lawyers submitted that the enacted Statutory Instrument no. 57 does not contravene the Constitution.
The Senior Counsel representing the Unions argued that is an unreasonable exercise of delegated power as the Minister took into account irrelevant considerations and ignored relevant ones.
“Botswana’s membership of the ILO [International Labour Organisation] ratification of ILO conventions gave rise to a legitimate expectation on the part of the Applicants that the Minister would not include as essential services, which did not meet the ILO standards.
The State lawyers argue that there was no unreasonableness in the actions of the Minister, saying his actions were approved by parliament.
