Five public sector Unions want industrial court Judge President Elijah Legwaila to be retired from his position immediately. They argue that his appointment by President Ian Khama after Elijah Legwaila turned 70 years was ‘illegal’.
The Unions have jointly issued a statutory notice declaring their intention to file an application before the High Court against Khama, Attorney General Athaliah Molokomme and Judge Legwaila.
The Unions, all affiliated to the Botswana Federation of Public Sector Unions (BOFEPUSU), are querying Legwaila’s appointment on a fixed-term contract as Judge President of the Industrial Court and contend that if anything Legwaila’s contract could have been extended to allow him to wrap up any outstanding cases.
The Unions insist that Legwaila’s appointment is invalid because it breached the Trade Disputes Act and therefore want the High Court to declare it a nullity.
According to the Unions, Legwaila, who is aged 72, should have vacated office when he turned 70.
The Unions have requested Attorney General Molokomme to waive the 30 days notice to allow for the matter to be heard quickly because it might affect the validity of proceedings currently ongoing at the Industrial court.
The Unions say that during the public sector strike, they commissioned a study to probe the process and procedure for appointing Industrial court judges and a perusal of the laws to ensure its Independence.
“One of the discoveries of the study was that Justice Elijah William Modale John Legwaila attained the age of 70; the President purported to appoint Justice Legwaila on a fixed-term contract,” reads the Unions letter, issued to President Khama, Attorney General and Legwaila.
“There is no provision in the Trade Disputes Act which empowers the President to appoint a judge who has attained the age of 70 on a fixed-term contract. The President‘s power once an Industrial Court judge has attained the age of 70 is limited to extending the judge’s tenure for sole purpose of enabling the judge to complete the matter that he/she was seized with immediately prior to attaining the age of 70,” the letter reads in part.
The Unions say that, as regular customers of the Industrial court, a case regarding the validity of a judge’s appointment is of great interest to them hence their decision to lodge a case with the High Court.
