After a five-year stand-off with former employees, the United States Embassy has waived part of the diplomatic immunity of one of its diplomats in order that it can defend a P1.8 million lawsuit against it.
This comes after Justice Leatile Dambe of the High Court issued an order authorising the ex-employees to impound property belonging to the Embassy.
In September 2007, the United States Agency for International Development (USAID) office in Gaborone laid off some of its employees as part of a restructuring and cost-cutting exercise. The Agency’s head office in Washington wanted to close the office as an operating unit and transfer its regional functions to USAID South Africa.
The employees being retrenched were not happy with the retrenchment package and presented the case that, in terms of USAID’s own Employee Handbook for Local Staff, they were entitled to much more than the Agency intended to pay. In all, 12 people who joined USAID at different times and held different positions are party to this claim.
The lowest claim amount is P6996 while the highest is P408 527.
When talks between the two parties failed, the employees sought the intervention of the High Court. However, this still proved unavailing as the US Embassy maintained that in terms of the Vienna Convention on Diplomatic Relations, it was immune from prosecution. To get around that hurdle, the ex-employees’ attorney made an application for service on the Embassy to be made in the US itself but Dambe’s ruling was that the Embassy should be served through the Ministry of Foreign Affairs and International Cooperation (MoFAIC).
That was done but the time allowed for the Embassy to submit its defence elapsed. The employees then made an application for a default judgement to be made against the Embassy and the latter still did not oppose the application because it was still sticking to its position that it is immune from prosecution. Resultantly, in February this year, the court ruled that in addition to the costs of the suit, the ex-employees be paid a total of P1.8 million. A writ of execution was also issued authorising a deputy sheriff in the district of Gaborone “to attach and take into execution the movable goods of the United States of America … resident in Botswana through the United States of America Embassy and of the same to cause to be realised by public auction.”
When the deputy sheriff tried doing that in June, he met resistance from the Embassy and the matter reached the Department of Justice in Washington. Robert Hollis, the Director of the Office of Foreign Litigation gave special power of attorney to a local law firm, Bookbinder Business Law, to represent the Embassy in the matter. The instructions to Bookbinder were that it should seek an order rescinding both the default judgment and the writ of execution as well as granting the US leave to defend the action.
At least from the stand point of Americans, defending the action has a catch-22 element built into it because it necessarily requires that an affidavit be deposed at the High Court. Doing that amounts to waiving diplomatic immunity, which is the reason the US has given all along for not defending the action. Thus on July 30 this year, the Embassy notified MoFAIC through a diplomatic note that the diplomatic immunity of Charles Franta III, a human resources officer at the US Embassy, would be waived in order to enable him to depose an affidavit at the High Court.
“Given the circumstances of this case, and in the spirit of cooperation, the United States government expressly waives its immunity with respect to Mr. Franta for the limited purpose of permitting him to submit to the High Court of the Republic of Botswana held at Lobatse an affidavit regarding his knowledge of the facts surrounding the attempted service of a writ of summons on the Embassy of the United States of America, an attempt to seize United States property as a result of a default judgement, the retrenchment of former USAID employees, the severance packages paid to the former employees, and for no other purpose,” says the diplomatic note.
As made clear in a sentence that precedes the one quoted above, this limited waiver of immunity means that “Mr. Franta is not obliged to give evidence as a witness.” Indeed in his affidavit, he states that in terms of article 31 (2) of the Vienna Convention on Diplomatic Relations “I am immune from providing evidence in this Honourable Court.” in line with Hollis’s instructions, the application by Franta seeks to rescind the default judgement granted in favour of the former USAID employees by the Deputy Registrar and Master of the High Court, Nelson Bopa.
All along MoFAIC has been the conduit through which the Embassy received correspondence from the court and at least one letter indicates that there was expectation on the ministry’s part that the Americans would acknowledge receipt of such mail. However, that did not happen and the reason Franta provides in his affidavit is that the Embassy “believed that it was immune from prosecution and consequently no further action was taken on the matter.”
In dealing with the main issue that the applicants raise, Franta says that had the employee handbook been used to calculate terminal packages, the money paid out would have been far less than what the ex-employees and he has annexed a copy of the comparison of the two payment plans. He suggests that the ex-employees’ claim is “made in bad faith and as a means to extort money which has already been paid to [them] in full.”
Franta also argues that in the event that the court finds that the Embassy is liable for the claim of the ex-employees, that would still not entitle the latter to attach the property of the US government.
“The reason being that the [Embassy’] property is used for diplomatic purposes; accordingly any properties held by the [Embassy] may not be attached in any manner. Therefore, any attachment or attempt to do so is not permitted,” he argues in his affidavit.
In Botswana’s legal system, claims should be filed within a defined period of time or they “prescribe” – become unenforceable. Franta raises the legal argument that having been retrenched on September 30, 2007, the ex-employees should have filed their claim by October 1, 2010 but instead did so 10 days later.
The Embassy has made the other side an offer that it refused: that the US would bear costs of the application only in the event that the ex-employees don’t oppose the application for rescission.
“[H]owever, if the Respondents oppose this application the Respondents shall be ordered to pay costs of this application jointly and severally, one paying the other to be absolved; and further and or alternative relief,” says its notice of motion.
The ex-employees are opposing the application, arguing that it has been made outside of the reasonable period of time that the court allows. They argue that by its own admission, the Embassy was made aware of the order to impound its property by April 4 this year and failed to take reasonable steps within reasonable time to act accordingly.
