26 Jan 2014

Court of Appeal is expected to, sometime in February, deliver a ruling in which government is appealing the judgement of Justice Key Dingake, who in 2012 ruled against the classification of teachers, veterinary services and diamond sorters as essential workers.

The respondents are the Botswana Public Employees’ Union (BOPEU), Botswana Teachers’ Union (BTU), Botswana Secondary Teachers Union and National Amalgamated Local and Parastatal Workers’ Union (NALCGPWU).

Motivating his heads of arguments state counsel, Mr Morulaganyi Chamme argued that the trial court erred and misdirected itself in finding that Section 49 of the Trade and Dispute Act (TDA) (Cap.48:01) was incompatible with Section 86 and Section 87 of the Constitution of Botswana and invalid.

He also noted that the court misinterpreted the provisions of Section 144 of the Employment Act (Cap.47:01) in finding that the minister failed to consult the Labour Advisory Board in particular its applicability in this particular case.

In addition, Mr Chamme said the court misdirected itself in deciding that the Statutory Instrument No.57 of 2011 contravened Section 9 (1) of the Statutory Instrument Act (Cap.01:05). Furthermore, he told the bar that the court misinterpreted the provisions of Section 49 of the TDA in holding that the Statutory Instrument No.57 of 2011 is ultra vires Section 49 of the TDA.

“I wish to submit that the court misdirected itself in holding that the Statutory Instrument No.57 of 2011 contravenes Section 13 of the constitution and that it misdirected in holding that the Statutory Instrument No.57 of 2011 is ultra vires because it was for the purpose which was incomplete with the policy and objectives of the TDA”, he said.

Furthermore Mr Chamme noted that the court erred in holding that Botswana’s membership of the ILO and ratification of the ILO convention give rise to a legitimate expectation that the Minister will not include as essential service, services which does not meet ILO standards.

Meanwhile in his answering heads of arguments, the respondents’ attorney, Mr Alexander Freund said the respondents accepted that the Constitution didnot preclude Parliament from enacting provisions which delegated authority to make subordinate legislation within the framework of a statute under which the delegation is made; but they submitted that Parliament had no power under the Constitution to delegate to the Executive a power to amend an Act of Parliament itself, as had occurred in the present case.

Attorney Freund argued that even if there was a necessary implication that parliament had power to delegate subordinate legislative powers to the Executive, there was no necessary implication that parliament is authorised to delegate to the Executive the power to amend an Act of Parliament itself.

He noted that it was fundamentally subversive of Parliament’s plenary legislative power for it to authorise the executive to amend an act made by it, for this allowed control over legislation to pass from Parliament to the Executive.

“Under the TDA, as enacted by Parliament, citizens engaged in services not listed in the Schedule adopted by Parliament as part of the TDA had a right to strike. Parliament had no constitutional authority to empower the minister to legislate to divest citizens of that right”, he submitted. 

According to Attorney Freund, adding a service to essential service schedule by the minister removed an important right, namely the right of affected employees to strike.

He said determining which categories of employees should be prohibited from striking was a policy laden judgement which should, in terms of Botswana’s Constitution, be taken by Parliament. Attorney Freund who was assisted by attorney Mboki Chilisa said by purporting to empower the minister to override its own judgement, Parliament allowed control over legislation to pass to the Executive and thus abdicating its constitutionality and legislative responsibility.

In addition, he said the minister ought to have taken into consideration Botswana’s international law obligations; and ought not to have taken into consideration the economic and other considerations he said he took into consideration when deciding how to exercise his powers to amend the Schedule.

He therefore failed to take into consideration that which he should have taken into consideration, and he should not take into consideration factors that he should not have taken into consideration. Mr Freund therefore, submitted that the appeal should be dismissed with cost. ENDS