Court of Appeal Judge President Ian Kirby this week told a packed court that government was right to dismiss essential service employees who took part in the 2011 public service strike. Kirby tore to pieces Justice Key Dingake’s judgement in which he ruled that the dismissal of close to 3,000 essential service workers was unlawful.
On Justice Dingake’s judgment
“The learned Judge set the tone for his judgment at the outset when he stated that the court was called upon to decide the legal rights of public officers who were dismissed for taking part in an illegal strike,” read Kirby Wednesday. But according to Kirby, Dingake was wrong saying the actual issue to be determined was not that, “but the narrower question of the rights of essential service employees in the public service who were dismissed for defying a court order to return to work.” Also Kirby dismissed Dingake’s central theme, that “the public sector employees who participated in an unprotected strike are entitled to a hearing before being dismissed.” According to Kirby, that statement is overboard in terms of the law in Botswana, adding that the duty of the employer is to act fairly in the circumstances of the case, and an employer may dispense with a hearing where it is reasonable to hold one. “In some cases, particularly in a strike situation, a proper ultimatum may suffice.” Dingake had found that there was no evidence that the ultimatum reached either the employees or the unions, because the unions had instructed their members not to read the Botswana Daily News, not to listen to Radio Botswana, and not to watch Botswana television because of perceived bias on the part of the government media. However, Kirby poured cold water on this finding saying it ignores the realities of the situation. “To “forbid” a union member from reading the Botswana Daily News…is an order of like import to one not to open any letter from the government. The chance of it being obeyed is negligible.”
Right to a hearing
The judge observed that generally, and obviously, the right to a hearing is to be accorded to an individual personally, before he is dismissed or otherwise prejudiced in his rights or legitimate expectations. “However, such dismissals are lawful when individual hearings cannot reasonably be held.” Kirby also found that there is no absolute requirement for a pre-dismissal hearing in a strike situation. He found that the right to life and protection of property, and the public interest will prevail over individual or collective rights to a pre-dismissal hearing.
“Court orders are to be obeyed, promptly and without debate, as every Motswana knows.”
South African case law
The judge said South African precedents are of persuasive value only, being based upon different constitutional and statutory provisions to those, which obtain in Botswana, and flowing from contrasting historical, social and industrial environment. It is for the Court of Appeal to interpret and apply its own laws taking into account local conditions, he said. It may derive assistance from foreign precedents dealing with similar legislation or principles, but it is not BOUND to do so.