12 Nov 2024

Justice Tshepo Motswagole of Gaborone High Court will on November 13 deliver a ruling on the points of law emanating from the parties’ heads of arguments in the Shombi Ellis’ interdict application relating to her dismissal.

The applicant, who is the founding chief executive officer of the National Arts Council of Botswana (NACB) through her attorney, Mr Samuel Plaatjie, filed an application before court on November 01 challenging her former employer for termination of her contract.

In the application, the former Minister of Youth, Gender, Sports and Culture, Mr Tumiso Rakgare and NACB are cited as first and second respondent respectively.

The court will determine if the application is urgent, with substance and whether it ought to have been filed as an interdict or rather a review application. Arguing the points of law emanating from the applicant’s affidavit, first respondent’s attorney, Mr Mboki Chilisa had disputed that the matter was urgent.

Mr Chilisa said the applicant had cited that the matter be treated as urgent as she has suffered financial loss and her reputation was adversely affected.

Mr Chilisa also added that the applicant had also cited that her dismissal was effected after she aborted an attempt by the first and second respondents attempt to misappropriate some funds.

Therefore, she was of the view that the matter be treated as urgent to fast track her reinstatement to quash any attempts to misappropriate funds.

However, Mr Chilisa said the aforementioned points of law were not enough to justify that the matter be treated as urgent. He said nothing in the founding affidavit warrants urgency and that there would be no harm if the application was to follow the normal route and join the queue like any other matter. Mr Chilisa said if the applicant was unlawfully dismissed, she would accordingly get her dues.

He also indicated that the application must not be treated as one seeking interdiction, as the applicant was no longer an employee, therefore there was nothing to prohibit from happening. Furthermore, Mr Chilisa said the application could have cited the Attorney General (AG) as one of the respondents since the proceedings were against government.

He also added that the applicant had cited the respondents as corrupt without advancing any substantive evidence.

Mr Chilisa said the board of the NACB made the determination to dismiss her as a result of misconduct and insubordination, therefore her reinstatement was not a possible remedy.

Attorney for the second respondent (NACB), Ms Rapelang Nkau, also concurred with Mr Chilisa that the AG was not cited in the application, deeming the omission a costly error rendering the application incompetent.

Ms Nkau said the former Minister (Rakgare) was part of government, and the NABC being a government entity, therefore ought to be represented by the AG in legal proceedings.

In seeking clarity from the parties, Justice Motswagole asked whether the Minister was acting in his capacity, using powers vested upon him or on behalf of government, therefore rendering his actions as that of government.

Justice Motswagole said according to his understanding the minister was entitled by an Act of Parliament, which gave him the power to hire and fire, therefore how could one say he was acting on behalf of government.

“The minister was not acting as government, but was rather acting on the powers conferred on him by an act of Parliament.

The entity (NACB) has been given powers to have independent existence.

Then why cite AG when dealing with such an entity, which was not government? “In terms of the law he is not acting on the powers conferred on him by government, but on the powers conferred to him by law,” said Justice Motswagole.

The judge also indicated that as per his understanding the application was supposed to be a review not an interdict application as it was seeking for the court to act on a matter that was concluded.

However, the applicant attorney, Mr Plaatjie was of the view that the minister’s action was unlawful and therefore the order was to interdict the result of such an act. “We want to stop the implementation of the applicant’s termination of contract,” said Mr Plaatjie.

Nonetheless, Justice Motswagole said his understanding was that the applicant was seeking for the court to render the minister’s decision as unlawful and by so doing reinstate his client.

“A decision has been made dismissing your client and she was not happy with it, therefore you want her to be reinstated and continue with her employment. All you want is for the court to reverse a decision that has been taken, therefore your application ought to seek a review.

“I wonder what will be there to review once your client has been reinstated. Incase I make such a decision, the matter will be put to rest and there will be nothing to review,” he said. Ends