Court dismisses BOPEU's application

Members of Botswana Public Employee Union (BOPEU) suffered a big blow last week Friday when Judge Isaac Bahuma of the Industrial Court dismissed their case in which they were challenging Ministry of Agriculture over the settlement agreement reached in 2012.

Delivering his judgement, Judge Bahuma said the application was not properly brought before court because it did not have a referral certificate. “The only way they can approach this court directly is by way of urgency, which is why the Registrar probably thought they had. The applicants have confirmed that the application is not urgent,” said Judge Bahuma.

During the argument, the attorney representing the applicants, Uyapo Ndadi confirmed to the court that their application was not urgent and it was never brought to court as such. A question then arose during the proceedings whether court has jurisdiction to hear the matter since it was not brought to court on urgency and didn’t have a referral certificate.

According to Judge Bahuma, it does not matter that there was a settlement agreement signed by the parties, it is not a court order and it is not enforceable in a court of law. “If the other party does not meet their side of the bargain the applicants ought to approach the mediator who will, if necessary, prepare necessary documentation for proper referral of the matter to this court.

This was not done and for that reason this application must fall,” said Judge Bahuma. Reacting to the judgement, Uyapo Ndadi said, “I think his lordship erred in the law. The parties had settled this matter before the Labour Officer with the government making undertakings. Consequently, a referral certificate would not have been necessary as there was an agreement. Labour Officers refer matters to court when the dispute is unresolved. At any rate the government suffered no prejudice by the matter being heard without a referral certificate and the Attorney General did not take the issue of referral as well.”

He also said the court also erred in holding that a settlement agreement is not enforceable in a court of law. “That is with respect, wrong, as it seems the court took the view that a settlement agreement is akin to a recommendation. Agreements are enforceable in court provided they are lawful and not contrary to morality. It does not matter before whom they were made,” explained Ndadi.

He said they will not appeal “Because the government has since paid our clients their dues so the dispute is settled.” In 2005 a directive was issued by the Directorate of Public Service Management (DPSM) directing the implementation of scheme of service for employees under administration. T

he scheme of service was in terms of Directive No. 13 of 2005, supposed to have been fully implemented and completed by 1st April 2006. The Ministry agreed to pay the applicants salary differences between the time applicants were promoted to B3 in 2010 and 1st of April 2006, but it did not.

A dispute arose regarding the implementation and was referred to the Commissioner for mediation in terms of section 7(1) of the Trade Dispute Act and an agreement was reached. The whole exercise was to be completed by 30th September 2012.

Neo Sharp represented the state.