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Attorney General v Botswana LandBoards & Local Authorities Workers Union and Others (CACGB-053-12) [2013] BWCA 8 (20 March 2013)

MMB Advocates > Uncategorized  > Attorney General v Botswana LandBoards & Local Authorities Workers Union and Others (CACGB-053-12) [2013] BWCA 8 (20 March 2013)

Attorney General v Botswana LandBoards & Local Authorities Workers Union and Others (CACGB-053-12) [2013] BWCA 8 (20 March 2013)




IN THE COURT OF
APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT GABORONE

COURT
OF APPEAL CIVIL APPEAL NO. CACGB-053-12

HIGH
COURT CIVIL CASE NO. MAHLB-000631-11

DATE:
20 MARCH 2013

In the matter
between:

THE ATTORNEY
GENERAL…………………………………………………………………APPELLANT

(for and on
behalf of the Director of Public Service Management)

And

BOTSWANA
LANDBOARDS & LOCAL AUTHORITIES……………….1ST
RESPONDENT

WORKERS’ UNION

BOTSWANA PUBLIC
EMPLOYEES’ UNION………………………………..2ND
RESPONDENT

NATIONAL
AMALGAMATED LOCAL & CENTRAL…………………..3RD
RESPONDENT

GOVERNMENT &
PARASTATAL WORKERS’ UNION

KEFILWE
TOTENG ………………………………………………………………………4™
RESPONDENT

Adv. A. Myburgh
SC (with Adv. T. Ngcukaitobi, Mr P. Tafa and Mr L. Khupe) for the
Appellant

Adv. M. Brassey
SC (with Adv. S.T. Pilane and Mr T. Rantao) for the 1st and 3rd
Respondents

Adv. W.H.
Trengrove SC (with Adv. J. Freund SC and Mr M.M. Chilisa) for the 2nd
and 4th Respondent

JUDGMENT

CORAM: KIRBY J.P.

FOXCROFT J.A.

LORD ABERNETHY
J.A.

LESETEDI J.A.

GAONGALELWE J.A.

KIRBY J.P.

1. On 16th May 2011,
a total of 2934 public officers employed in essential services
throughout Botswana were dismissed for failing
to comply with an
Industrial Court order which declared their strike for better wages
to be unlawful, and interdicted them from
continuing with the strike.
On 16th September 2011 the three Trade Unions representing the
dismissed employees, together with one
of their members, Kefilwe
Toteng, launched motion proceedings to have the dismissals reviewed
and set aside. The application was
successful, and on 21st June 2012
Dingake J. handed down his judgment, in which he set aside the
dismissals, ordered the retrospective
re-instatement of all the
dismissed officers, and authorized those employees seeking to
associate themselves with the order to
report for work within 21
days. It is against those orders that the Attorney General, on behalf
of the Director of Public Service
Management, now appeals. The
respondents are the three Unions and Kefilwe Toteng.

2. The appeal
centres around the applicability of the audi alteram partem rule in a
strike situation, the special case of essential
services employees,
and the rule of law.

BACKGROUND

3. On 14th March
2011, following a deadlock in wage negotiations, the respondent
unions declared a dispute of interest and referred
this to the
Commissioner of Labour for mediation. The mediation was unsuccessful
and on 14th April 2011 strike notices were issued
on behalf of the
whole public service, announcing a general strike to commence at 5.00
am on Monday 18th April 2011.

4. Strike Rules were
negotiated between the parties, and were announced by the Director of
Public Service Management on national
radio and television. She
informed the public that three out of every ten essential service
employees would have to remain on duty
during the strike. At that
stage it was assumed by all concerned that participation in the
strike by essential services employees
was lawful.

5. The strike
commenced on 18th April 2011, and almost immediately this had serious
consequences for the provision of essential
services, and
particularly health services. Countrywide, 27 clinics did not open as
nurses failed to report for duty and at many
hospitals large numbers
of doctors and support staff were on strike. This posed obvious
threats to the life and health of patients,
and the authorities
stepped in to address the emergency by hiring temporary labour.

6. This prompted the
respondents to seek and obtain an interim interdict from the
Industrial Court restraining the appellant from
employing replacement
labour. A rule nisi was issued returnable on 26th April 2011. The
position of the respondents at that stage
was that no agreement on
strike rules had actually been reached, so that a 14 day statutory
prohibition on the employment of replacement
labour applied.

7. On the return
day, 26th April 2011, the Rule was extended, but on the same day the
Director changed tack and moved an urgent
application herself, now
claiming that the strike was unlawful insofar as essential services
employees were concerned and seeking
to interdict these employees
from striking. Apparently she had taken legal advice. An interim
interdict was issued by the Industrial
Court, returnable on 29th
April 2011, barring all persons employed in essential services from
striking, and ordering the respondents
to ensure compliance with the
order. This meant, and was taken to mean, that all essential services
employees were to return to
work.

8. The respondents
did take steps to have their members comply with the interim order.
They called meetings countrywide on 27th
April to explain the order,
and the appellant as employer also issued a press statement, which
was broadcast on 26th April 2011
calling upon the employees concerned
to return to work the next day, and saying that failure to comply
with the court order would
be unlawful.

9. On 28th April
2011 the appellant issued another press release which announced that
a large number of essential services

employees had defied
the court order. She warned that:

“… all
concerned public service employees are advised to immediately return
to work failing which they not only expose themselves
to termination
of their employment but also to civil and criminal contempt of court
proceedings.”

10. This was read in
the Radio Botswana news bulletin at 6.00 am on 29th April 2011, and
in news broadcasts throughout the day.

11. On 29th April
2011, after hearing argument, the court extended both Rules and
reserved judgment to 6th May 2011.

12. On 30th April
2011 the appellant again issued a press release notifying the
extension of the interdict. It stated that:

“All public
sector employees engaged in essential services are once again urged
to return to work urgently. All affected employees
who fail to return
to work face the possibility of dismissal from the public service.”

13. The release was
read on the 6.00 am news (when the warning was omitted) and on the
8.00 pm news, when it was included. It was
also published in the
Botswana Daily News of that day.

14. On 2nd May 2011
the respondents’ umbrella body, the Botswana Federation of Public
Sector Unions (BOFEPUSU) advised their members
in writing of their
proposed strategy in the days ahead. The communication stated, inter
alia, that:

“6. Again we
wish to make it clear that all employees discharging non-essential
services within the institutions classified
as essential, as agreed
in terms of Rule 7.3 should join the strike. That withstanding and
abiding by the Interim Relief Court
Order on the essential services
all workers rendering essential services are to go back to work.

7. Only 20% of
workers in non-essential services are expected to remain behind, that
is inclusive of non¬essential workers in
essential service
institutions. It is our expectation that the employer will provide
the trade union party with the categories
and/or names of employees
required to participate in the strike (sic).

8. Industrial Court
judgment on the essential services workers right to strike will be
delivered on 6th May 2011. We are optimistic
that the judgment will
be in our favour. If we lose the case, the law provides that a note
of appeal will suspend the judgment
until the appeal is heard. Of
which the essential service workers will join the strike on minimum
30% minimum service strike rules
provision by 7th May 2011.”
(sic)

15. This shows that,
at least for the period awaiting appeal, the respondents had no
intention of abiding by any adverse order which
the court might hand
down, regardless of the effect this might have on the provision of
essential services countrywide. It also
ignored the specific term of
the interim order that this applied to their members “employed
in essential services,” with
no exceptions. In effect, it
encouraged those workers who subjectively considered that their
particular work was not to provide
an essential service, to stay
away.

16. On 3rd May 2011
the front page of the Botswana Daily News carried the headline
“Defiant Employees Risk Dismissal.”
The article reported
the employer as stating that some essential services employees had
not complied with the order of 26th April
2011 and that they risked
dismissal if they did not return to work immediately.

17. On 5th May 2011,
on the eve of the Industrial Court judgment, BOFEPUSO published its
communication of 2nd May, quoted above,
as an advertorial in the Echo
newspaper, pronouncing that it would appeal any unfavourable
judgment, which would then be suspended,
allowing the interdicted
strikers to rejoin the strike.

18. On Friday 6th
May 2011 the Industrial Court handed down its judgment, in which it
confirmed the interim order of 26th April
2011. It found the strike
by essential services employees to be illegal, interdicted these
employees from striking, and ordered
the respondents to ensure
compliance by their members. Instead the respondents almost
immediately lodged a notice of appeal, and
declared that this
rendered the orders inoperative. That appeal has also been heard in
the present session of this court. The same
day, 6th May 2011, the
appellant issued a further press release repeating her ultimatum
after reporting on the judgment. It stated
among other things that:

“… Therefore
all essential services employees in the above areas, including
support services, must remain at work. Any such
workers who have not
already returned to work must do so immediately. Failure to do so
will risk summary dismissal.”

19. The outcome of
the judgment was widely reported, including in the Sunday Standard of
8th May 2011, under the heading ‘Industrial
Court declares strike by
essential services illegal.’ In the same issue the respondents
published their own two page press release
stating that the judgment
had been suspended by the noting of an appeal, and that there was “no
court order prohibiting essential
services public officers from
participating in the industrial action.” The same message was
spread by the respondents using
the private media.

20. Faced with this
strategy to neutralize the court order, the appellant brought an
urgent application in the Industrial Court
on 8th May 2011 seeking
leave to execute the order of 6th May 2011. This was opposed, and
after two dilatory applications by the
respondents (for recusal of
the Judge and for postponement of the application) were dismissed,
argument was heard and an order
granting the appellant leave to
execute (or implement) the judgment was granted at 10.00 pm on the
night of 10th May 2011. The
order was stated to be an interim order
returnable on 6th June 2011. The effect of the order was plain – any
suspension of the
order declaring the essential services employees
participation in the strike to be illegal was lifted, and the order
was to be
obeyed.

21. On Wednesday
11th May 2011 the appellant issued a press release, which was read on
Radio Botswana’s one o’clock news. It announced
the result of the
application, and continued:

“The government
wishes to re-iterate that all public servants employed in essential
services indicated above, including support
services, must remain at
work. Any such workers who have not already returned to work must do
so immediately. Those who fail to
do so risk disciplinary action
including summary dismissal.”

22. On the same
morning, before typed-up copies of the court order had been
collected, the leadership of the respondents met with
their members
at their designated gathering point in Gaborone, and informed them of
the outcome. Surprisingly, the leadership advised
those foregathered
that they “could not give details of what exactly the order
required of them.” It is

apparent that this
was communicated to the strike leaders in areas outside Gaborone too,
because Mr Andrew Motsamai (who deposed
to the affidavits filed on
behalf of the

respondents) states
that:

“The leadership
in areas outside Gaborone therefore decided to wait until they had
received a copy of the court order to explain
to members what was
required of them.”

23. He confirms that
on the morning of 12th May 2011 the order was transmitted by fax to
those other areas where fax services were
available, but that they
were informed that the return day would be anticipated in order to
have the rule discharged. He further
confirms that by 13th May 2011,
the above notwithstanding, word of the court order “had begun to
spread” and that this
required members to report for work. In
the event, no application to anticipate was made.

24. The Thursday
12th May 2011 edition of the Botswana Daily

News featured a
front page article on the court proceedings and reported that:

“The DPSM
released a statement after the ruling urging all public servants
employed in the essential services, including support
services, to
remain at work. It warned that any of such workers who have not
returned to work must do so immediately or otherwise
risk
disciplinary action, including summary dismissal.”

25. The same edition
carried another piece on the front page headed “Defiant
essential services employees risk dismissal,”
which reproduced
verbatim the appellant’s 11th May 2011 press release, including the
ultimatum.

26. Both parties
refer to a meeting held on the afternoon of 12th May 2011 between
representatives of the unions and of the employer,
after which a
press release was issued in which it was recorded that “Government
as the employer urged unions to encourage
their members to return to
work whilst the negotiation continues.” Each sought to use that
meeting to advance their case,
the appellant averring that it gave
the unions an opportunity to argue against the threatened dismissals,
and the respondents claiming
that it showed a softening of attitude
post the court order. It is clear from the content of the press
statement that this referred
to the general (and lawful) public
service industrial action, and not to that by essential services
employees which had been declared
unlawful. No mention was made in
the release either of the essential services or of the court order.
Dingake J. was in error to
hold, as he did, that this press statement
signalled a change from the issuing of ultimata to engagement in
dialogue. It is correct,
though, that the meeting did present an
opportunity to the Unions to raise the issue of the threatened
dismissals if they so desired.
There is no suggestion of that in the
release. The Government was consistent throughout in requiring
compliance with the court
orders.

27. There is
disagreement between the parties as to whether the strike was
characterized, at least during its latter stages, by
violence and
damage to property. The appellant refers to a

statement by the
Vice President made on 16th May 2011 calling for an end to violence.
This referred principally to damage caused
in schools – by whom is
not made clear. Employees in schools were not essential services
workers about whom this appeal is concerned
and nor were students,
whom the respondents alleged to be the perpetrators. In her press
release of 12th May 2011, the appellant
reported being flooded with
complaints about acts of intimidation and threats of forcible entry
into government premises. The two
examples given referred again to
schools, but no report appears to have been made of actual violence
or damage to property. In
response the respondents drew attention to
a statement issued by the Commissioner of Police on Wednesday 8th
June 2011 reporting
that the strike had been generally peaceful save
for ‘pockets of violence.’ The example there given, of burning refuse
in the street,
occurred well after the dismissals. I am satisfied
that on the evidence presented no significant violence or damage to
property
attributable to essential services employees was shown to
have occurred prior to the dismissals although, as Mr Motsamai
conceded,
there may have been instances of intimidation. What has not
been gainsaid, however, is that many clinics were closed, and doctors

and support staff at hospitals went on strike causing a real danger
to the sick and others in need of medical attention.

28. When it became
apparent that the warnings and ultimata had not had the desired
effect, the appellant decided to dismiss all
persons employed in
essential services who failed to report for

work on Monday 16th
May 2011, either at the beginning of the work day, or for their
allotted shift. On that Monday it was announced
that all those who
had failed to report for wor were dismissed. That evening a letter
was addressed to “Essential Services
Public Service Employees on
Strike,

BOFEPUSU and Public
Sector Unions.” It read as follows:

“DPSM wishes to
inform all public officers employed in essential services and/or
employed to render essential services currently
embarking on the
illegal strike and who have failed to report for duty on 16th May
2011, that they have now been dismissed from
employment with
immediate effect.

The dismissal of
each individual employee concerned has been brought about by their
continued participation in on¬going industrial
action in
essential services which has been declared illegal, unlawful and
unprotected by the Industrial Court.

The employees on
strike in essential services have defied several court orders
directing them to return to work, as well as a series
of ultimatums
publicly issued by DPSM, as the employer, urging them to return to
work immediately with effect from Tuesday 26th
April 2011, and
pointing out in clear and no uncertain terms that their failure to do
so would expose them to dismissal.

Each employee is
advised to report to their workplace to receive delivery of their
individual letter of termination of employment
through their Head of
Department and/or their supervisors.

Letters which are
not collected within 5 working days will be sent by registered post
to their last known address.”

29. Following the
dismissals, the reinstatement of the dismissed essential services
employees became an issue in negotiations between
the parties to
resolve the general (and lawful) public service strike. The attitude
of the appellant was that this issue should
be sidelined until the
wage demands had been resolved. According to Mr Motsamai, the
respondents offered, as a compromise, to drop
their wage demands if
their members were re-instated, and that “the offer to
re-employ. was made in response to (their) demand
for
re-instatement.”

30. Whatever the
reason, it is common cause that after the strike was finally
suspended on 12th June 2011, the dismissed workers
were invited to
apply anew for employment, with no guarantees of engagement. Again
according to Mr Motsamai, all of the respondents’
dismissed members
did apply for re-employment, but not all were taken on. Of the 2934
employees originally dismissed 2378 were
re-employed on new
contracts, while 556 were not. Of these the overwhelming majority
(well over 90%) were employees in health services.

31. As a
post-script, an urgent application to stay execution of Dingake J’s
order together with a prayer for an accelerated appeal
was made
before this court some days after the judgment, it being alleged that
the sudden return to duty at their original posts
of some 3000
employees, mostly in the health services, would cause chaos, since
many transfers, redeployments, and recruitments
had taken place in
the intervening 15 months. This application was brought in the face
of threatened contempt proceedings to be
mounted by the respondents
for non-compliance with the order of Dingake J. It was not pursued
when it was conceded by counsel for
the respondents that in terms of
section 7 of the State Proceedings (Civil Actions by and against the
Government and Public Officers)
Act Cap 10:01, the Government is
allowed a period of three months after the date upon which an order
against it is operative, before
execution can be issued thereon.
Instead the application was postponed, and the operation of the order
has effectively been suspended
until the conclusion of this appeal.

THE JUDGMENT OF THE
COURT BELOW

32. Dingake J, in a
long and comprehensive judgment, made a number of findings of fact,
analysed the law as he perceived it, and
found in favour of the
respondents. The appellant attacks both certain of his findings of
fact and his application of the law as
being ill-conceived.

33. In summary, his
findings on the law were as follows:

(1) As a general
principle the rules of natural justice are to be followed in public
service dismissals, and particularly the audi
alteram partem rule,
unless this requirement is excluded by statute whether specifically
or by necessary implication.

(2) More stringent
requirements have to be met in dismissals under public law (as in
this case) than in those where private parties
are involved and
labour law principles apply.

(3) That in a strike
situation an attenuated form of audi is to be accorded before any
dismissal.

(4) That an
ultimatum is not a substitute for a hearing.

(5) That as a
minimum a show cause letter should be addressed to his Union before a
striker is dismissed.

(6) That the
individual circumstances of unlawful strikers are to be considered -
they are not to be treated as “an undifferentiated
mass.”

(7) That
participating in an unlawful strike is serious misconduct, which
stands to be addressed under section 27 of the Public
Service Act No.
30 of 2008 (“The PSA”).

(8) That the
appellant had failed to apply the audi alteram partem rule before
dismissing the respondents’ members.

34. He therefore set
aside the dismissals and ordered the retrospective re-instatement of
the dismissed workers.

THE APPEAL

35. The appellant
takes issue with a number of factual findings and perceived errors
and inconsistencies in the judgment of Dingake
J. I shall deal with
these after interrogating the applicable law, and addressing the
circumstances which prevail in Botswana.
In short, the appellant’s
case is that:

(a) The appeal
revolves around the application of section 27 of the PSA which reads:

“(1) An
employee who is guilty of serious misconduct shall be summarily
dismissed from the public service on the basis of that
serious
misconduct.

(2) Except in those
cases where the employer cannot reasonably be expected to hold a
disciplinary inquiry, subsection (1) shall
not be construed as
permitting an employer to disregard the rules of natural justice in
dealing with cases of summary dismissal.”

(b) The court a quo
erred in holding that the employer could reasonably have been
expected to hold a disciplinary enquiry, albeit
in an attenuated
form, before the dismissals, and

(c) The court a quo
erred in holding that the process followed by the employer did not,
in the circumstances, comply with the rules
of natural justice.

THE LAW

36. We have been
privileged to receive detailed heads of argument from four
distinguished senior counsel, all from South Africa,
who have
referred us to a formidable array of authorities from that country.
But, as Dingake J. reminded himself, and as the full
bench of this
court has stressed in ATTORNEY GENERAL vs NTESANG OATILE
CACLB-021-10, 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
a contrasting
historical, social and industrial environment. It is for this court
to interpret and apply its own laws taking into
account local
conditions. It may derive assistance from foreign precedents dealing
with similar legislation or principles, but
it is not bound to do so.
Botswana’s international obligations as reflected in ratified
treaties will also be relevant, but these
too are not domestically
binding unless they have been incorporated in our law by statute.

37. Historically,
unionization was not permitted in the public service and nor were
strikes allowed. Such restrictions are permitted
by section 13(2)(c)
of the Constitution, which exempts laws which “impose
restrictions upon public officers, employees of
local government
bodies, or teachers” from being held to breach the right of
freedom of assembly. The development of the law
relating to strikes
by public officers, including essential services employees, is traced
in some detail in the judgment of this
court in BOTSWANA LANDBOARDS
AND LOCAL AUTHORITIES WORKERS’ UNION AND TWO OTHERS vs THE DIRECTOR
OF PUBLIC SERVICE MANAGEMENT AND
ANOTHER CACLB-043-11, (“the
BLLAWU case”), a related appeal also heard in the present
session. I need not repeat it.
Suffice it to say that following the
ratification by Botswana in 1997 of the two key Freedom of
Association instruments of the
International Labour Organization
(“the I.L.O.”), namely Convention 87 on Freedom of
Association and Protection of the
Right to Organize, and Convention
98 on the Right to Organize and Collective Bargaining, a new Trade
Disputes Act No. 15 of 2004
(“the TDA”) and a new Public
Service Act No. 30 of 2008 (“the PSA”) were promulgated,
which domesticated some
of the provisions of those conventions. For
the first time public officers were accorded the right to strike, and
also (by an amendment
to the Trade Unions and Employers’
Organizations Act, Cap 48:01), the right to unionize.

38. By the time the
PSA was passed, the three Unions who are the present respondents had
been registered, and had signed collective
agreements with the
Director of Public Service Management (the DPSM). However, no Public
Service Bargaining Council had by the
time of the public service
strike been established, as required by section 50 of the PSA, nor,
it appears, had disciplinary procedures
been agreed by collective
bargaining as required by section 39(2) of the PSA. Although argument
was initially presented on the
applicability of earlier regulations
and of general orders relating to public officers, Local Government
employees, and industrial
class employees, it was agreed in argument
before the High Court that, those

notwithstanding, the
operative provisions of the PSA, as the governing Act, applied, at
least for the purposes of the present case,
and these were, section
39(1) which provides that:

“39(1)
Disciplinary action against an employee who commits an act of
misconduct shall be prompt and in accordance with the
rules of
natural justice”

and Sections 27(1)
and (2), which I have reproduced above.

39. The court below
was called upon to determine the legal rights of essential service
workers in the public service who were dismissed
for continuing an
illegal strike in defiance of a court order interdicting them from
doing so. Essential services are defined in
the TDA (section 2) as
“any of the services specified in the Schedule.” The
specified services, at the time, were listed
as Air Traffic Control
Services Botswana Vaccine Laboratory Fire Services Bank of Botswana
Health Services Operational and Maintenance
Services of the Railways
Sewerage Services Transport and Telecommunications Services necessary
to the operation of any of the foregoing
services Water Services By
section 49 the Minister is empowered to amend the Schedule.

40. In the PSA there
is a different definition. Subsections 49(6) and (7) provide that:

“49(6) For the
purposes of this Act, “essential service” means a service,
the interruption of which endangers, or
is likely to endanger, the
life, personal safety, or health of the whole or part of the
population.

(7) Notwithstanding
the generality of sub clause

(6) , “essential
services” include those services listed under the Schedule to
the Trade Disputes Act.”

41. The drafting is
awkward, but properly construed this definition appears to include
all essential services scheduled in the TDA
plus any others the
interruption of which might endanger the life, personal safety, or
health of the population or a part thereof.
It is difficult to
conceptualize these, but they might include, for example, those
charged with the custody and management of radio-active
materials or
of explosives.

42. Subsections
43(1) and (2) of the TDA and Subsections 49(4) and (5) of the PSA are
to the same effect in substance, save that
a more severe penalty is
provided for a breach of the latter. Both make it a criminal offence
for an employee who “wilfully
breaches his contract of
employment knowing or having reasonable cause to believe that the
probable consequence of his doing so,
either alone or in combination
with others, will be –

(a) to deprive the
public or any section of the public, either wholly or to a
substantial extent, of an essential service or substantially
to
diminish the enjoyment of an essential service by the public or by
any section of the public; or

(b) to endanger
human life or public health or to cause bodily injury to any person
or to expose valuable property, whether movable
or immovable, to the
risk of destruction, deterioration, loss or serious damage.”

43. They also
criminalize the conduct of any person who counsels or causes an
employee to breach his contract of employment in this
manner. The
obvious example of the commission of such an offence would be an
employee taking part in an illegal strike whereby,
for example, an
essential service such as a health service, was withdrawn or
substantially reduced.

44. The only
difference in this regard between the two Acts is that the TDA
contains a provision (section 45) which legalizes or
purports to
legalize an essential services strike provided the conditions laid
down by that section are satisfied. The PSA contains
no such
provision. This means that an essential services employee in the
public service who takes part in an illegal strike commits
a criminal
offence, unless a credible defence can be raised to the charge.

45. The present
strike was declared to be illegal by the Industrial Court insofar as
essential services employees who were public
officers were concerned,
and the court interdicted those officers from striking. Those
officers who defied the order and failed
or refused to return to work
– some three thousand employees countrywide – were collectively
dismissed.

46. That the rules
of natural justice are generally to be applied in disciplinary
proceedings involving public officers is clear,
not only from section
39(1) of the PSA, but also from the earlier regulations and general
orders governing Local Government employees,
industrial class
employees, and public officers generally. These still apply, to the
extent that they are more favourable to the
employees, by section 67
of the PSA. Each of these provides for full individual disciplinary
hearings.

47. Further local
guidance is to be derived from the National Industrial Relations Code
of Good Practice GN No. 483/2008 (“the
NIR Code”) published
by the Minister of Labour and Home Affairs as required by section 51
of the TDA. It is stated to be the
Minister’s policy on labour
matters, and to represent guidelines only. It is nonetheless a
document, in our view, upon which individuals
can base a legitimate
expectation of treatment in accordance with its provisions. In the
case of public officers, that expectation
will be legitimate to the
extent that the guidelines are consistent with the PSA and are not
less favourable than any pre-existing
disciplinary regulations and
general orders.

48. Section 51(2) of
the TDA requires mediators, arbitrators and the Industrial Court to
take any such code into account in making
any decision under that
Act.

49. The NIR Code is
comprehensive, and contains parts on social partners (unions and
employees), employment relationships (including
discipline) and
collective bargaining (including strikes and lock-outs). Procedures
for individual disciplinary hearings are detailed
and fair, fully
complying with the rules of natural justice. There are exceptions,
though:

paragraph 1.3
provides that:

“the guidelines
in this code may be departed from if there is good reason to do so.”

Paragraph 1.3.3
elaborates, that:

“collective
misconduct may justify a departure from the ordinary procedural rules
provided that the employees are given an
opportunity to answer the
charges against them.”

Paragraph 11.11
provides that:

“in exceptional
circumstances, if the employer cannot reasonably be expected to
comply with these guidelines, the employer
may dispense with
pre-dismissal procedures.”

Paragraph 11.13 says
that:

“in cases of
collective misconduct, it may be fair to hold a collective hearing.”

50. The latter
guideline is permissive. It may be fair (and possible), for example,
to hold a collective hearing when a manageable
number of employees
(such as a shift) commits collective misconduct. It may be neither
fair nor possible to hold such a hearing
where, as in this case, some
3000 employees spread to the four corners of the country engage in
collective misconduct which results
in endangering the lives and
health of a part of the population.

51. In these
particular guidelines, the NIR Code does no more than to reflect what
is specifically permitted, in the case of public
officers, by section
27(2) of the PSA, which excuses the application of the rules of
natural justice in those cases of summary
dismissal where the
employer cannot reasonably be expected to hold a disciplinary
inquiry. It represents, overall, a codification
of the labour law of
Botswana, as it then existed, with some additions to comply with the
international conventions.

52. The NIR Code
also makes provision for disciplinary dismissals for participation in
unprotected strikes generally. It does not,
however, distinguish
between participation which may constitute a criminal offence (as in
this case) and that which (apart from
subsection 41(1) of the TDA)
might constitute a breach of contract or a delict, nor does it deal
with the special case of public
officers. Paragraph 12, headed
“Unprotected Strikes”, provides that:

“12.1
Participation in a strike that does not comply with the provisions of
the Act (the TDA) is serious misconduct that may
justify dismissal.
The fairness of dismissal in these circumstances must be determined
in the light of the facts of the case, including

12.1.1 the
seriousness of the contravention of the Act, and attempts made to
comply with it;

12.1.2 whether the
strike was in response to unjustified conduct by the employer, and
whether the strike was the only reasonable
option available to the
employees concerned;

12.1.3 whether the
parties have made genuine attempts to negotiate the resolution of the
dispute giving rise to the strike;

12.1.4 the manner in
which the employees have conducted themselves during the strike, and,
in particular, whether the strike was
conducted in a peaceful manner
or accompanied by violent behaviour; and

12.1.5 the impact of
the strike on the employer’s business.

12.2 Prior to
dismissal the employer must, at the earliest opportunity, make
reasonable attempts to contact a trade union official
to discuss the
course of action it intends to adopt.

12.3 If dismissals
are contemplated, the employer should issue an ultimatum in clear and
unambiguous terms that should state what
is required of the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employee should be
allowed sufficient time to reflect
on the ultimatum and respond to it, either by accepting it or
rejecting it.

12.4 If the employer
cannot reasonably be expected to extend these steps to the employees
in question the employer may dispense
with them. (emphasis supplied)

12.5 The employer
may not discriminate between striking employees by dismissing or
re-instating only some of them without good reason.
If however the
reason for the different treatment is based on grounds of
participation in strike-related misconduct such as picket
violence or
malicious damage to property, or other justifiable reasons, the
different treatment may be fair.”

53. It must be
remembered that these are discretionary provisions, which apply to
employees and employers generally. They contrast
with section 27(1)
of the PSA, relating to public officers specifically, which provides
that:

“an employee
who is guilty of serious misconduct shall be summarily dismissed from
the public service on the basis of that
serious misconduct.” (my
emphasis)

54. It must also be
remembered that, at least in Botswana, public service strikes differ
fundamentally from those in the private
sector. That is why
restrictions on the right of public officers to strike are permitted
both by the Constitution and by the I.L.O.
Conventions. This is made
clear by the: Freedom of Association Digest of decisions and
principles of the Freedom of Association
Committee of the Governing
Body of the International Labour Organization (“the ILO Digest”)
(5th Revised Edition 2006),
which holds at para 573 that:

“The right to
strike can be restricted or even prohibited in the public service or
in essential services in so far as a strike
there could cause serious
hardship to the national community and provided that these
limitations are accompanied by certain compensatory
guarantees.”

And at para 596,
that:

“As regards the
nature of appropriate guarantees in cases where restrictions are
placed on the right to strike in essential
services and the public
service, restrictions on the right to strike should be accompanied by
adequate, impartial and speedy conciliation
and arbitration
proceedings in which parties concerned can take part at every stage
and in which the awards, once made, are fully
and promptly
implemented.”

56. In Botswana
general salary increases in the public service routinely apply across
the board, to junior employees and to senior
employees alike, and
they are applied also to cabinet ministers and parliamentarians by
amendments to the enabling Acts. So resistance
to a wage demand by
the “employer” in the public service is a matter of
principle, for if Government advisors in the
public service, and
Government itself, accede to the demand then each of its members
stands to benefit personally in financial
terms. This is not a case
where greedy employers can be said to exploit a disadvantaged
workforce, by depriving it of an equitable
allocation from the
profits of a private enterprise. Rather the contest is around what is
a fair allocation of national resources,
and in particular of
tax-payers’ funds. Government must choose whether, in the light of
prevailing economic circumstances it is
in the public interest to
increase public service salaries at the expense of competing
interests, such as health and social services,
which support the poor
and the unemployed as well.

57. That is not to
say that public officers, who work diligently for modest salaries by
the standards of the sub-continent, do not
have legitimate and
understandable concerns as well about the rising cost of living and
for the welfare of their families, and
this makes such negotiations a
delicate balancing exercise demanding sober debate. Since it impacts
upon the populace generally,
a strike in the public service should be
a rare occurrence indeed – a weapon of ultimate last resort, when all
else has failed
and working conditions have become financially
unbearable.

58. In the case of
essential services, the NIR Code also provides, at paragraph 18.1,
that: “The Trade Disputes Act promotes
collective bargaining as
the primary mechanism for employers and employees to resolve matters
of mutual interest themselves without
outside interference. An
exception to this is in respect of essential services. In these
services compulsory adjudication by the
Industrial Court or
arbitration resolves disputes after negotiations and mediation have
failed.”

And in Item 2.1 of
the annexure on strikes and lockouts, it states as follows:

“… Note that
it is not permissible to strike or lock-out in respect of disputes of
interest in an essential service. Those
disputes must be referred to
compulsory arbitration.” (emphasis supplied)

59. That is the
extent of the legitimate expectation that may be generated by the NIR
Code in respect of essential service employees,
including those in
the public service. And in the case of such employees, competing
fundamental rights, such as the right to life
and to the protection
of property and the general public interest, must ultimately take
precedence over the right to freedom of
assembly, and over any right
to strike that they may enjoy.

60. Turning to the
case law, all parties are agreed that ordinarily the general rule in
Botswana is that whenever a statute empowers
a public body or a
public official to do an act or give a decision prejudicially
affecting an individual the rules of natural justice,
and in
particular the audi alteram partem rule are to be applied unless the
statute or the body’s rules made thereunder expressly
or by
implication provide to the contrary.

In ARBI vs
COMMISSIONER OF PRISONS & ANOTHER (1992) BLR 246 CA at 251
Puckrin J.A. (Amissah J.P. and Aguda J.A. concurring) dealt with the
history of the audi rule,

and the development
of the law as at that time, and held that:

“The principle
of audi alteram partem is part of the bedrock of any civilized legal
system. The maxim expresses a principle
of natural justice which
holds that when a statute or any other form of legislation empowers
public officials to give a decision
prejudicially affecting an
individual in his liberty, property or existing rights, such
individual has the right to be heard (and
to be apprised of the
threat to his right) before a decision is taken, unless, of course,
the legislation expressly or by implication,
indicates the contrary.”

61. 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. This is reflected in the
regulations and general orders applicable to public
officers, in the
NIR Code, and generally in the case law. See, for example, NATIONAL
DEVELOPMENT BANK vs THOTHE (1994) BLR 98 CA.

62. Collective or
mass dismissals are frowned upon. In STUDENTS REPRESENTATIVE COUNCIL
vs UNIVERSITY OF BOTSWANA (1989) BLR 396 CA at 404, Bizos J.A.

remarked that:

“The
disciplinary procedures set out in the Regulations appear to conform
to the principles of natural justice and more particularly
the right
of the students to be heard and to appeal against any findings or
punishments …

Nowhere in the Act
or the statutes or the Regulations is there a provision empowering
any person or body of persons to dismiss students
as a whole without
giving them the opportunity to be heard.”

63. However, such
dismissals are lawful when individual hearings cannot reasonably be
held. In STUDENTS REPRESENTATIVE COUNCIL OF
THE UNIVERSITY OF
BOTSWANA vs ATTORNEY GENERAL (1995) BLR 469 CA (full bench) at 483,
Amissah J.P. considered the rights of the student body again.
Following riots the Minister closed the university
without according
the students, who were adversely affected, any hearing. The learned
Judge President held as follows at p.483:

“I assume,
without deciding, that the students are persons who ordinarily would
have a legitimate expectation of being heard
before the closure of
the university. But was it practically possible to have a hearing
before the action was taken? To act promptly
to check the development
of a potentially dangerous situation which might occur on 17th
February is irreconcilable with the requirement
of giving a hearing
to 3500 students … The situation demanded prompt and incisive
measures. As we said in MOTHUSI vs ATTORNEY
GENERAL ((1994) BLR 246
CA) a right to be heard must be meaningful, in that its exercise
should involve the possibility of a change
in a contemplated
decision.’ It must also involve the feasibility of a physical hearing
being given. I see no point in suggesting
the impossible.”

The Minister’s
action was held to be reasonable.

64. That case was
followed by STUDENTS REPRESENTATIVE COUNCIL OF MOLEPOLOLE COLLEGE OF
EDUCATION vs THE ATTORNEY GENERAL (1995) BLR 510 (HC). The

students had
presented a long list of grievances to the Minister, which he could
not immediately address. They embarked on Monday
19th June 1995, upon
an indefinite boycott of classes until their demands were met. The
boycott continued on the next day and the
next. At 10.00 am on 21st
June 1995 the Minister caused an ultimatum to be read out at the
college. It stated that if the students
did not return to class by
1.00 pm the college would be closed. They did not do so, and he
closed the college. Mokama C.J. (citing
MOTHUSI’s case) held that he
acted reasonably in the circumstances of the case, and the students
could expect no further hearing.
That decision was affirmed by this
court on appeal ((1996) BLR 182 (CA)).

65. Also in 1995 the
full bench decision of this court was handed down in NATIONAL
AMALGAMATED LOCAL AND CENTRAL GOVERNMENT AND
PARASTATAL MANUAL
WORKERS

UNION vs THE
ATTORNEY GENERAL (1995) BLR 48 CA

(“the Manual
Workers Case”). In that case (which did not involve essential
services) the manual workers believed that
Government had agreed with
their representatives to a very substantial wage increase. When it
was not implemented they embarked
upon a wildcat strike, without
going through any of the procedures demanded by the old Trade
Disputes Act (No. 19/1982). The industrial
class Government workers
had by Act No. 23/1983 been accorded the right to unionize, and by
Statutory Instrument No. 1/1986, the
right to strike (unlike other
public officers who only gained these rights much later). The strike,
which was the first of its
kind, was characterized by blunders on
both sides, but particularly by the Government. Dismissal
instructions were given before
the strike even began. Dismissal
letters were drafted citing participation in an illegal strike. The
Minister only declared the
strike illegal after some employees had
already been dismissed. Finally, the strikers (over 17000 of them)
were dismissed for being
absent from work without leave, although
almost all were re-employed shortly thereafter. An analysis of the
judgment shows that
the workers’ dismissal was declared unfair and
nullified for two main reasons – first, because they were dismissed
for a spurious
reason (their two day absence) when it was “patent
to high heaven” that they were taking industrial action by going
on
strike, and second, because they had an unfulfilled legitimate
expectation that their dispute would be properly dealt with under
the
TDA. It was not in the main, for failure to accord them a fair
hearing.

66. Both parties
rely on passages from this judgment in support of their cases. They
are the following:

(a) At pages 79/80
Amissah J.P. held that

“The Act is
specially designed to ensure that trade disputes are, as far as
possible, settled peacefully and amicably. It provides
the
appropriate machinery for the resolution of a dispute like the one
which led to the workers going on strike. It is not in my
view, made
to enable one side, with the power, to settle the dispute to its
advantage. In any case, the Act does not contemplate
the wholesale
dismissal of workers who take part in an illegal strike. The sanction
imposed for taking part in an illegal strike
is in the form of
criminal penalties.” (my emphasis)

This is the passage
relied upon by the respondents.

(b) At page 81,
Amissah J.P. continued, in a more general vein, to hold that

“The essence of
the rule of natural justice, therefore, may not always be a matter of
giving a hearing, but of acting fairly
in the exercise of a
discretionary power. Not all cases are susceptible to a hearing prior
to a proper exercise of power. A strike
situation seems to me to be a
good example where an ordinary hearing or showing cause on an
individual basis may not lead to a
just result. That, I believe, is
the reason why special provisions are made by the Trade Disputes Act
and through collective bargain
agreements for the resolution of
industrial disputes.” (again my emphasis)

That is the passage
relied upon by the appellant. The first passage repeats the court’s
reluctance to endorse collective dismissals
without statutory
authority to do so. The second passage recognizes that in proper
circumstances such as a strike situation it
may be necessary and
proper (as in some prior cases) to dispense with individual hearings,
at least prior to the exercise of power.
There is no inconsistency.

67. The Industrial
Court has consistently taken the view that where workers take part in
an illegal strike they may be dismissed
collectively without a
hearing, after delivery of a proper

ultimatum to return
to work, which they have not heeded. In PHIRINYANE vs SPIE
BATIGNOLLES (1995) BLR 1 (IC) at 5, De Villiers J. listed four sets
of circumstances which represent exceptions to the general rule of
natural justice that
a fair disciplinary inquiry should precede a
dismissal for misconduct. Although this list represents an obiter
dictum, the case
is widely quoted in Botswana labour law, and one of
the sets of circumstances so described has relevance in the present
case. To
quote De Villiers J:

“.Thirdly,
there may be cases where it cannot reasonably be expected of an
employer in specific circumstances to hold a disciplinary
inquiry
before dismissing employees e.g. employees who are striking illegally
and who refuse to return to work after receiving
a proper ultimatum
may be dismissed without a disciplinary inquiry.”

68. In other
substantive cases, some quoting Phirinyane, the Industrial Court has
held that strikers are not entitled to a pre-dismissal
hearing when
they have been issued with an ultimatum. See PALOPALO & OTHERS vs
GROUP FIVE/SYDCOR JOINT VENTURE IC 18/1999,
AARON MAUNATLALA vs
PACKAGING INDUSTRIES (PTY) LTD IC 74/2000, KEBONYEKGOSI JUTA vs
GENERAL PACKAGING INDUSTRIES (PTY) LTD IC 161/2005,
OTHUSITSE EDWARD
& 14 OTHERS vs RAMOTSWA STEEL (PTY) LTD IC 57/2006.

69. Finally,
reference was made to the more recent judgment delivered by Howie
J.A. (a former President of the South African Supreme
Court of
Appeal) for this court in BOTSWANA

MINING WORKERS UNION
vs DEBSWANA DIAMOND COMPANY (PTY) LTD (2009) 1 BLR 138 CA, and in
particular to an extract on page 153 E – G, namely that:

“with reference
to pre-dismissal hearings, Botswana case law does not support the
appellant’s submission that the absence of
such hearings was unfair.
In PHIRINYANE vs SPIE BATIGNOLLES (1995) BLR 1, IC at p.5 E-F the
court observed that a hearing could not reasonably be expected in the
course of an illegal strike where the
worker refused to respond to a
proper ultimatum. And in NATIONAL AMALGAMATED LOCAL AND CENTRAL
GOVERNMENT AND PARASTATAL MANUAL
WORKERS UNION vs THE ATTORNEY
GENERAL (1995) BLR 48 CA at 81 H, this court remarked that ‘an
ordinary hearing in a strike situation may not lead to a just
result.’ Here, again, counsel
for the appellant sought assistance
from South African case law, agreement with which by Botswana courts
one can only regard as
a matter for speculation.”

70. The Debswana
case was an appeal against a refusal by the Industrial Court to
condone the late referral of a dispute to that
court after the issue
of a certificate authorizing this by a mediator under the TDA. It is
true that that case involved a dispute
between private parties, but
there are some similarities with the present case. First, the dispute
involved the selective collective
dismissal of essential service
workers without a hearing, who had been involved in an interdicted
unlawful strike (it is not clear
whether the reference to essential
service workers was made in the context of the TDA or of Debswana’s
internal rules and agreements).
Second, in arguing its prospects of
success the appellant in that case raised similar issues to those
raised before us, including
the failure of Debswana to consult the
union before the dismissals, and the failure to give individual
hearings to the dismissed
workers.

Third, in the
present case too, Dingake J. relied in the court below mainly on
South African judgments. This court will determine
to what extent
those, or certain of them, should be followed here in the future.

71. So the case law
in Botswana is to the effect that collective dismissals without a
hearing in the situation of an unlawful strike
are permissible
provided that a proper ultimatum is issued. This is particularly so
when the strike causes danger to lives or property.
What is a proper
ultimation will also depend on the circumstances prevailing. All of
the local cases were decided before the PSA
was brought into force on
1st May 2009, and without reference to the NIR Code, which was also
of later vintage. In my judgment
the exceptions referred to in
section 27(1) of the PSA and in various of the NRI guidelines serve
to justify and validate the local
judgments, and neither the NIR Code
nor the PSA are in any way destructive of the principles, both in
public law and in private
law, laid down by those cases.

72. The NIR Code,
which applies generally to labour relations, including strikes and
dismissals, has served to reduce, if not to
eliminate entirely, the
distinction in the application of the rules of natural justice
between dismissals under public law and
dismissals under labour law.
This is the case in South Africa, too. In MODISE & OTHERS vs
STEVE’S SPAR BLACKHEATH 2001 (2) SA 406 LAC Conradie J.A. said at
p.450 that:

“Procedural
fairness is a dominant theme in both administrative and labour law.
In administrative law a decision maker must
give an affected person
an opportunity of being heard if it can reasonably be expected of him
or her to do so. If it is not unreasonable
to do so, the decision may
be taken without input from the person prejudicially affected. What a
fair procedure would be, would
depend on the circumstances. The only
general principle that I can discern, in both administrative and
labour law, is that a hearing
should be accorded if it is in the
circumstances fair to give one. Usually the circumstances are such
that it is fair to give a
hearing. It is only in this sense that
there may be said to be an obligation on an employer: if he
encounters circumstances where
it is fair to do so, he must give a
hearing.”

73. South African
authorities generally reflect the sentiments of Amissah J.P. in the
Manual Workers Case, that the essence of
natural justice is a matter
of acting fairly in the circumstances of the case, and English
authorities are to like effect. In RUSSELL
vs DUKE OF NORFOLK (1949)
1 All ER 109
at

118, it was held
that:

“The
requirements of natural justice must depend on the circumstances of
the case, the nature of the inquiry, the rules under
which the
tribunal is acting, the subject matter that is being dealt with, and
so forth.”

74. Hoexter,
Administrative Law in South Africa 2nd Ed. Pp.364/5 puts it thus:

“Fairness is a
highly variable concept. In South African law what makes a hearing
‘fair’ has always depended upon the circumstances,
and that holds
true today. Our courts readily accept that fairness is not something
that can be reduced to a one size fits all
formula … Zulman J.A.
summed things up neatly in Chairman, Board on Tariffs and Trade v
Brenco Inc. when he described the requirements
of the audi principle
as ‘contextual and relative’.”

75. Both counsel for
the respondents and Dingake J. cited the well- known words of Lord
Wright in GENERAL MEDICAL COUNCIL vs SPACKMAN
(1943) AC 627 at 644 -
645,

that:

“If the
principles of natural justice are violated in respect of any
decision, it is indeed immaterial whether the same decision
would
have been arrived at in the absence of departure from the essential
principles of justice. The decision must be declared
to be no
decision.”

76. In Botswana that
dictum, while generally sound, must not be taken too literally. The
concept of general fairness has to a large
extent replaced reliance
on so-called individual principles of natural justice such as those
suggested by Dingake J. in his judgment;
and both statute law and the
cases, including MOTHUSI vs ATTORNEY GENERAL (SUPRA) show that in
exceptional circumstances departure
from these rules of natural
justice may be justified. Further, since review is a discretionary
remedy, there are cases in which,
although a declaration of
unlawfulness may be made or justified, actions taken in consequence
of the impugned decision are allowed
to stand. See BERGSTAN (PTY) LTD
vs DEVELOPMENT CORPORATION & OTHERS CACGB-020-12, which approved
OUDEKRAAL ESTATES (PTY) LTD
vs CITY OF CAPE TOWN & OTHERS 2004
(6) SA 222
SCA.

77. The South
African cases on strike dismissals cover a wide range of approaches,
and before deciding which, if any, to adopt,
it is as well to look at
the context of Botswana generally, and the circumstances of the
public service industrial action.

78. In Botswana
strikes are not a common occurrence. We have no “strike season”,
and violence and destruction to property
during industrial action is
almost unknown. Generally industrial relations are good, with
mutually acceptable salary increases
being sensibly negotiated from
time to time, both in the private sector and the public sector. This
is to be expected in a country
that has enjoyed peace and stability
for more than forty-five years since Independence. The public
service, which is the backbone
of the administration, enjoys a
well-earned reputation for diligence and discipline which is
difficult to match in the region.
Botswana is also a country in which
the rule of law is universally respected. Court orders are to be
obeyed, promptly and without
debate, as every Motswana knows.
Disagreement can be debated later, in an appeal. No exception is made
in the case of strikers
or their unions. Against that background, the
public service general strike – the first in Botswana’s history -
came at an unpropitious
time. Public officers had not had a rise in
salary for a considerable period, and the cost of living had risen
steadily. But this
coincided with a worldwide recession from which
Botswana was not immune. Diamond sales had slumped and there were
severe budgetary
constraints. This made salary negotiations extremely
difficult.

79. An error was
made, by both Government and the unions, when a strike was permitted
generally, which did not differentiate between
essential services
employees and other public servants. The difference was acknowledged
only in strike rules, subsequently made.
In fact, according to the
law, essential services employees are prohibited from striking unless
(and even that is a matter of debate,
particularly in respect of
public officers) a special report has been made under section 45 of
the TDA (see the judgment in the
BLLAWU case, supra). As a result of
this error a large number of essential services workers, and in
particular doctors, nurses,
and medical support staff, went on
strike, endangering the lives and health of patients or prospective
patients, who were left
without adequate medical care. Some of these
workers were dismissed when, it was said, they refused to return to
work following
several ultimata, and a court order that they should
do so. I will examine the circumstances in more detail when dealing
with the
findings of fact made and the conclusions reached by Dingake
J. in the court below, but that is the general context in which the

law is to be applied.

80. Earlier South
African cases dealing with dismissals in a strike situation held that
the issue of a proper ultimatum was sufficient
and that no further
hearing, either on an individual or a collective basis was required.
See NATIONAL UNION OF METAL WORKERS OF
S.A. vs HAGGIE RAND LTD (1991)
12 ILJ 1022 (LAC) at 1028, where it was held that:

“Once the
threat of dismissal was fair it follows that the dismissals
themselves were fair too. I was pressed with the argument
that the
dismissals ought to have been preceded by disciplinary enquiries or
hearings. There is no merit in this argument. Management
acted
fairly; moreover, in my judgment it could not reasonably have been
expected … of management to hold a hearing or inquiry.”

81. In MODISE &
OTHERS vs STEVE’S SPAR BLACKHEATH (SUPRA) (a 2-1 split decision of
the South African Labour Appeals Court),
which was a private labour
dispute, the majority (per Zondo A.J.P. Mogoeng J.A. concurring) held
that an ultimatum alone was never
sufficient, because an ultimatum
and a hearing were two different things. Before the ultimatum was
issued, the union should be
given the opportunity, by a letter or
otherwise to make representations both as to the legality of the
strike and as to why the
employees should not be dismissed if they
failed to heed the ultimatum. This form of attenuated hearing would
satisfy the audi
rule. It was not necessary to hold a further
pre-dismissal hearing.

82. The court held
at page 442, para 96, as follows:

“In the light
of all the above I have no hesitation in concluding that in our law
an employer is obliged to observe the audi
rule when he contemplates
dismissing strikers. As is the case with all general rules, there are
exceptions to this general rule.
Some of these have been discussed
above. There may be others which I have not mentioned. The form which
the observance of the audi
rule must take will depend on the
circumstances of each case, including whether there are any
contractual or statutory provisions
which apply in a particular case.
In some cases a formal hearing may be called for. In others an
informal hearing will do. In some
cases it will suffice for the
employer to send a letter or memorandum to the strikers or their
union or their representatives inviting
them to make representations
by a given time why they should not be dismissed for participating in
an illegal strike. In the latter
case the strikers or their union or
their representatives can send written representations or they can
send representatives to
meet the employer and present their case in a
meeting. In some cases a collective hearing may be called for whereas
in others –
probably a few – individual hearings may be needed for
certain individuals. However, when all is said is done, the audi rule
will
have been observed if it can be said that the strikers or their
representatives or their union were given a fair opportunity to
state
their case. That is the case not only on why they may not be said to
be participating in an illegal strike but also why they
should not be
dismissed for participating in such a strike.” (my emphasis)

83. The dissenting
judgment (per Conradie J.A.) reflected the more traditional South
African approach, both in labour law and administrative
law and also,
in some respects, the Botswana approach to date. He held that in a
strike dismissal, where an ultimatum is the employer’s
only practical
response, it can seldom if ever be unfair not to hold a hearing.
After discussing

a plethora of
conflicting South African decisions, he concluded, at p.456 that:

“The only
general rule is that fairness in industrial relations should prevail.
There is really no other rule.”

84. He held (echoing
Amissah J.P. in the Manual Workers Case) that it is not necessary to
hold a hearing where this would serve
no purpose. In regard to the
pre-ultimatum or pre-action discussion required by the South African
Code of Good Practice (in similar
terms to NIR Code Guideline No. 122
in Botswana) Conradie J.A. held that this was satisfied by pre-strike
meetings held between
the employer and the union in terms of the
South African Labour Relations Act.

85. His approach to
individual or individualized pre-ultimatum or pre-dismissal hearings
is set out at p.459 H-J and p.460 A, when
he asks

“What can, or
should strikers debate with their employer in a pre-ultimatum
hearing? … They might attempt to persuade the
employer that,
despite the unlawfulness of the strike, they should not be dismissed
if they ignore the ultimatum and continue with
the strike. I do not
believe that such an attempt could succeed. It is one thing for

strikers to say,
after the event, that, despite the unlawfulness of the strike, that
having regard to all the circumstances, their
misconduct was not so
serious that dismissal was the appropriate sanction . It is, however,
in my view quite another thing for
strikers to say that, although
their strike is admittedly unlawful, they should be entitled to
continue their conduct without fear
of dismissal. That would be
intolerable.”

And at p.461 C

“If one
postulates individually based representations by the strikers’ union,
the position is also untenable. Does the union
argue for the
dismissal of A and B, but not, say (because of their individual
circumstances), for the dismissal of C and D? In
particular, an
investigation into the bona fides of the strikers would be completely
misplaced. If bona fide belief in the lawfulness
of a strike by an
individual striker were to be a defence, union members would escape
dismissal provided only that an (unscrupulous)
union had concealed
the unlawfulness of the strike from them,”

and (as to those who
were intimidated or participated unwillingly):

“It would, in
my judgment, be grossly unfair to require an employer to hold an
enquiry into each striker’s enthusiasm for the
cause before being
able to issue an ultimatum against those, and only those, found to be
in favour of the strike.”

86. Finally, at
p.460 I, Conradie J.A. pointed out that in a collective dismissal, to
hear individually motivated arguments from
the union would introduce
inequality of treatment in a collective decision with collective
consequences.

87. From these dicta
some general principles may be derived, but the law and the
circumstances in South Africa, and in Modise, were
entirely different
from those obtaining in Botswana and in the present case. In Modise,
which was a case in private labour law,
there were only four
appellants out of a total of 40 dismissed strikers, as opposed to
about 3000 dismissed strikers here. There
was no emergency. The
possibilities of providing a hearing were not even remotely similar.
Modise involved a procedurally illegal
strike under the South African
Labour Relations Act by retail workers, and turned on the definition
of a “fair labour practice.”
Here, once the strike by
essential service workers was declared to be illegal, the dispute was
over the continuation (in defiance
of a direct court order) of what
was now a criminal activity threatening the lives and health of
patients. It involved sections
of the TDA and the PSA which had no
equivalent in South Africa.

88. Modise does,
however, contain some useful extracts, which may have a more
universal application. Zondo A.J.P. said at p.417
C-D

“The audi rule
has always been applicable in certain circumstances where a public
functionary contemplates taking a decision
that could prejudicially
affect the rights or interests or property of an individual. In my
view the dismissal of public servants
for striking would, generally
speaking, have fallen within the sphere of application of the audi
rule in the administrative law
context. Obviously, even in the public
sector, there would have been exceptions where the employer could not
be said to be obliged
to observe the audi rule.” (emphasis
supplied)

89. And at p421 A he
recorded that:

“Article 7 of
the ILO convention on Termination of Employment 158/1982 provides as
follows:

‘The employment of a
worker shall not be terminated for reasons related to the worker’s
conduct or performance before he is provided
an opportunity to defend
himself against the allegations made, unless the employer cannot
reasonably be expected to provide this
opportunity’.”

90. The one
consistent thread running through the cases, the international
instruments, the statutes, and the guidelines, is that
the audi
alteram partem rule is only to be applied where it is reasonably
practicable to do so.

91. The remarks of
Conradie J.A. at p.449 B also bear repeating.

He said, in the
context of South Africa, that:

“It is becoming
distressingly obvious that court orders are, by employer and
employees alike, not invariably treated with the
respect they ought
to command. It is a worrying tendency, one which can only be
effectively combated by the courts displaying a
marked reluctance to
condone non-compliance. Obedience of a court order is foundational to
a state based on the rule of law. The
courts should, by a strict
approach, ensure that it remains that way.” (my emphasis)

Happily, the latter
position remains and should continue to remain the case in this
country.

92. The two further
South African cases relied upon by the appellants, this time in
administrative law, for the proposition that
the audi rule is to be
applied in all public service dismissals, including strike dismissals
are ADMINISTRATOR, TRANSVAAL &
OTHERS vs ZENZILE & OTHERS
[1990] ZASCA 108; 1991 (1) SA 21 AD, and ZONDI & OTHERS vs ADMINISTRATOR, NATAL &
OTHERS [1991] ZASCA 35; 1991 (3) SA 583 (AD). Neither case is similar to the present
one. In both cases the dismissed litigants were classed as temporary
workers in terms
of their contracts, although they had been employed
in the public service for a long time. In Zenzile the respondents
were three
hospital cleaners, and in Zondi the eight appellants were
described merely as employees of the Roads Department with no further

details. All were subject to termination of service upon 24 hours
notice, and to summary dismissal for misconduct. In both cases
the
dismissed workers stood to lose pension rights if dismissed.

93. In Zenzile the
respondents and others had unlawfully stopped work in sympathy with a
dismissed colleague. They failed to respond
to a 30 minute deadline,
read out to the workers, to return to work, and they were dismissed
without individual hearings for ‘refusal
to work’ in terms of their
contracts. It was held that because they stood to lose their pension
rights, they were entitled to a
hearing. The argument that because
they were temporary employees subject to summary dismissal, the rules
of natural justice did
not apply to them but only the private law of
master and servant was rejected. That case re¬affirmed the
general rule that
public officers of whatever description are
entitled to a hearing before dismissal. The court had no statute or
section similar
to section 27(2) of the Botswana PSA to consider. It
is accordingly not of assistance in the present case.

94. In Zondi, there
was an illegal strike, and the appellants were among those who took
part. They were first verbally instructed
on the same day, 15th
November 1988, to return to work or face dismissal. They were given
three hours to decide. Thereafter each
was handed a generic ‘letter
of ultimatum’ instructing them to return to work and giving them
until 17th November 1988 to make
representations why they should not
be dismissed for partaking in an illegal strike. Other letters
intervened, the last, written
on 21st November 1988 informing them
that they were given 24 hours notice of termination of employment
effective from close of
duty on 30th November 1988. Thereafter the
Administrator of Natal issued a press statement on 24th November
1988. This was published
in the daily newspapers and broadcast over
the radio. It stated that those who returned to duty by Friday 25th
November 1988 would
have their letters of termination withdrawn and
would retain their pension benefits. The deadline was extended to
28th November
1988 by means of another notice published in the press.
The strikers were represented by a trade union, NEHAWU, although the
employer
did not recognize NEHAWU.

95. Many workers
returned and had their letters of dismissal withdrawn. The appellants
were among those who did not meet the extended
deadline. In an
application to set aside their dismissals, they and NEHAWU averred
that they had not learned of the deadline in
time. It was common
cause that in dismissing public officers the rules of natural
justice, and in particular the audi rule, were
to be followed. The
application was unsuccessful, and the eight appellants only (and not
NEHAWU or the others) appealed.

96. The court held
that the audi rule had been followed in the termination, but that
there was a second decision – whether or not
to withdraw the
termination letters – and in respect of this too the audi rule
applied. The appellants should have been given the
opportunity to
explain why they failed to meet the deadline. This the respondents
failed to accord them, and the decision to stand
by their dismissals
fell to be set aside.

97. That case did no
more than to re-affirm the general rule that public officers are
entitled to be heard before a decision adverse
to their interests is
taken. Again the court had no equivalent section to section 27(2) of
the Botswana PSA to consider, so that
it too differs from the present
case. It is interesting for two other reasons – first because
deadlines announced generally in
the press and on the radio were
found to be acceptable, although not delivered to NEHAWU or to the
strikers personally; and second,
because a post-dismissal hearing to
determine individual reasons for not meeting the deadline was
endorsed by the Appellate Division.

98. I can see no
reason, either after reading the South African cases, or after
reviewing the more recent legislation and the NIR
Code, to depart
from the general principle laid down in the Botswana cases, that
there is no absolute requirement for a pre-dismissal
hearing in a
strike situation. An appropriate ultimatum will normally suffice.
That is not to say that there will not be occasions,
such as when
only small numbers of employees are involved, and there is no
pressing urgency, when it will be fair, and possible,
to issue
individual show cause letters, or to hold individual hearings, or to
enter into pre¬ultimatum discussions with the
striking workers’
union, as indicated in the NIR Code. But that will virtually never be
the case where there is danger to lives
and property, and decisive
action is required for the protection of the public. Then the right
to life and protection of property,
and the public interest will
prevail over individual or collective rights to a pre-dismissal
hearing. This is the more so when
criminal conduct or disobedience of
court orders is involved. Criminal conduct is to cease, and court
orders are to be obeyed,
immediately. In Botswana, there is no room
for an argument that in such a case time for reflection or for
cooling down is to be
allowed before that is done or for an argument
that a show cause letter must be addressed to the strikers’ union
before the dismissal
of strikers for such conduct.

99. Mr Brassey has
argued with some force, that there may be employees caught in a
collective dismissal who are innocent, or whose
circumstances differ
materially from those of other strikers. Some may, for example, have
been ill, or unreachable, or have wished
to raise arguments of
intimidation or that they were not employed in essential services. In
the case of such individuals, he submitted,
a specially tailored
hearing was required, or an attenuated application of the audi rule
so that they could be heard either individually
or through their
union. Despite the general proposition that they must bear the
collective consequences of collective action, I
have some sympathy
with that argument. It can never be fair if an innocent person is
dismissed, even in a situation of apparent
collective responsibility.
But I differ on the requirement for such an opportunity to be given
prior to the dismissal.

100. In a situation
where lives or property are threatened immediate action is required.
The authorities cannot delay their response
while they hold hearings
or a hearing, however attenuated; they cannot, like the Emperor Nero,
fiddle while Rome burns. In such
cases collective dismissals without
a prior hearing are justified.

101. But in the case
of public officers, fairness on an individual basis will be achieved,
in my judgment, if after the emergency
is past, there is a
post-dismissal opportunity or right given to the dismissed employee
to make meaningful representations as to
why his dismissal should be
reversed, or as to why he should be re-instated in his own particular
circumstances. Mr Motsamai, too,
in his replying affidavit argued
that there can be no justification for dismissing the minority, who
did not know of the order
or were sick, without provision for an ex
post facto hearing. This can be achieved by means of an appeal, or by
the acceptance
of representations on an individual basis (there is no
rule of functus officio in a contractual relationship even among
public
officers), or, in appropriate cases, by raising a grievance
under the TDA. At a more general level, a union too can be permitted

to make post-dismissal representations seeking the re-instatement of
its members.

102. As to the
general principle of the granting of a post-dismissal hearing, or
opportunity to be heard, see ADMINISTRATOR, TRANSVAAL
& OTHERS vs
TRAUB & OTHERS [1989] ZASCA 90; 1989 (4)

SA 731 (A) where
Corbett C.J. held at p.750:

“Generally
speaking, in my view, the audi principle requires the hearing to be
given before the decision is taken by the official
or body concerned
. Exceptionally, however, the dictates of natural justice may be
satisfied by affording the individual concerned
a hearing after the
prejudicial decision has been taken (cases cited). This may be so,
for instance, in cases where the party making
the decision is
necessarily required to act with expedition, or where for some other
reason it is not feasible to give a hearing
before the decision is
taken.”

See also MAMABOLO vs
RUSTENBERG REGIONAL LOCAL COUNCIL 2000(1) SA 135 SCA. Both Mr
Trengrove and Mr Brassey were constrained to
concede that where the
circumstances precluded pre-dismissal hearings on an individual
basis, a post-dismissal hearing could satisfy
the dictates of natural
justice.

103. In the case of
public service dismissals, it is well established that every public
officer in Botswana who is dismissed has
a constitutional right,
conferred by sections 110 and 111 of the Constitution, to appeal
against his dismissal to the Public Service
Commission, an
independent body, which may uphold or dismiss his appeal in whole or
in part, with no restrictions. Further, section
43 of the PSA grants
any public servant who has a grievance against his employer the right
to refer this to the Public Service
Commission for mediation or
arbitration. The Commission is empowered by section 109(13) of the
Constitution to regulate its own
procedure, unless Parliament chooses
to prescribe procedure by an Act of Parliament, which it has not
done. Certainly the Commission
can hear individual representations in
an appeal, when no earlier opportunity was available for these in a
collective dismissal.

104. So, in this
country at least, every public servant, whether in essential services
or not, who is collectively dismissed for
taking part in an unlawful
strike, or for disobeying a court order to return to work, has the
right to appeal against that order
on an individual basis. It is up
to him or her to decide whether or not to exercise that right, but
the process cannot be said
either to be unfair or to fall foul of the
rules of natural justice.

APPLYING THE
PRINCIPLES – THE JUDGMENT OF THE COURT BELOW

105. I turn now to
the criticisms of the judgment of Dingake J. made by the appellants
and their counsel. Their core submission
is that the employer acted
fairly in the circumstances prevailing when it dismissed those
striking essential services workers who
refused to return to work in
defiance of a court order declaring the strike illegal and ordering
them to do so. It is the argument
of the respondents, upheld by
Dingake J, that the dismissals were unfair and reviewable.

106. 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. 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 from
their illegal strike which was endangering the lives and welfare of
members of the public. Up to 26th
April 2011 there was a general
strike in the public service, whose lawfulness was not in dispute.
After the interdict of 26th April
2011, however, there were
effectively two strikes in progress – one an unlawful strike
interdicted by the court involving essential
services employees, and
the other a lawful strike by the general body of public officers. The
lawful strike ran its course, until
it was finally and peacefully
resolved on 12th June 2011, when the strike was suspended and the
strikers returned to work. It is
the unlawful essential services
strike alone which formed the subject of the Industrial Court
applications, and it is the dismissals
resulting from that unlawful
strike with which this appeal is concerned. The situation of these
specific employees should not be
equated to the general position of
lawfully striking public officers who break the rules of engagement.

107. The second
observation made by the Judge a quo in setting the stage for his
judgment is that the courts will not lightly intervene
in a strike
power play, once a strike has commenced, since this may unfairly tilt
the balance in favour of one or other of the
contestants. In support
of that proposition he quoted at some length from the judgment of
Conradie J. in the South African case
of METAL AND ELECTRICAL WORKERS
UNION OF S.A. vs NATIONAL PANASONIC CO. (PAROW FACTORY) 1991 (2) SA
527
(C). Conradie J. said at p.530 D-F that:

“A strike or
lock-out is like a boxing match. Each opponent tries, within the
rules, to hurt the other as much as possible.
There is a referee to
see that the rules are observed. The court is the referee. It does
not intervene simply because one of the
opponents is being hurt -
that is the idea of the context. The referee may intervene if one of
them is struck a blow below the
belt, but he would be astounded while
the bout is in progress to receive a complaint that something had
gone wrong with the weigh-in.
Parties in an industrial contest take
time and trouble to shape up for the fight. There are all kinds of
things which they are
expected to do before they are permitted to
enter the ring. Some of these things may be done carelessly or maybe
not at all, but
if the opponent has not taken the point before he
enters the ring, I do not think he should lightly be permitted to do
so once
the blows have started landing.”

108. That passage
had no relevance to the present dispute, which concerns the
collective dismissal of strikers. It could only have
been intended as
a criticism of the Industrial Court judgment of Tebogo-Maruping J.
when he declared during the course of the general
strike, that the
participation of essential services employees was illegal.

109. The Metal
Workers Case was a dispute over money between a private employer and
its employees. The ‘hurt’ referred to was economic
in nature, and
later in his judgment (at p.531 D-E),

Conradie J. added
that:

“I fully
realize that what the learned writers are saying applies to interest
disputes, that is, economic type disputes, and
that the same
reasoning does not quite apply to disputes of right. Whether or not a
lock-out is illegal is a dispute of right.”

110. I wish to make
it clear that the boxing match analogy is not to be applied to
industrial action in the essential services,
where the lives and
well-being of members of the public and the sanctity of property are
at stake. It would be totally unacceptable
for the withdrawal of
essential services, including public medical services, to be used as
a weapon in a general strike. That is
why special provisions are made
both in the Public Service Act and in the Trade Disputes Act for the
resolution of the grievances
of those vital employees. Mr Brassey,
for the respondents, fairly conceded that the reasoning in that case
was not to be applied
when the ‘hurt’ referred to was the withholding
of essential services, including medical treatment.

111. The third
general matter of a preparatory nature dealt with by Dingake J. is
his overview of natural justice, and the requirements
of its
application, particularly in disciplinary matters. That too was not
necessary for the decision in the present case, where
it was common
cause that special circumstances prevailed. The learned Judge
embraces within his view of the requirements of a disciplinary

hearing, most of the procedures generally associated with a judicial
trial, including the right to cross-examination, to legal

representation, and to the calling of witnesses. These are not common
law requirements of a fair hearing, where in some cases merely
the
opportunity to make written representations may suffice depending
upon the circumstances. See MAKGOENG vs ATTORNEY GENERAL
(1987) BLR
518
CA at 528. In ARBI’s case (supra) at page 252 the following
statement of Colman J. in HEATHERDALE FARMS (PTY) LTD vs DEPUTY
MINISTER
OF AGRICULTURE 1980 (3) SA

476 T at 486 D was
approved by this court, namely

“It is clear on
the authorities that a person who is entitled to the benefit of the
audi alteram partem rule need not be afforded
all the facilities
which are allowed to a litigant in a judicial trial. He need not be
given an oral hearing, or allowed representation
by an attorney or
counsel; he need not be given an opportunity to cross-examine; and he
is not entitled to discovery of documents.
But on the other hand,
(and for this no authority is needed) a mere pretence of giving the
person a hearing would clearly not be
in compliance with the rule.”

112. The rule is
perhaps best put as expressed by Amissah J.P. in the Manual Workers
Case (supra) that the essence of the rule of
natural justice is the
duty to act fairly in the exercise of a discretionary power. (See
also Conradie J.A. in Modise at p.566
B). In the case of disciplinary
proceedings more detailed guidelines have now been laid down (subject
to stated exceptions) in
the NIR Code and those will, together with
any other applicable statutory or contractual provisions, determine
what is fair in
any particular case. So the detailed requirements or
ideals listed obiter by Dingake J. should not be taken as a precedent
to be
followed in disciplinary hearings generally.

113. The case in the
court below was argued on the sole issue of whether, in the
circumstances of the essential services workers’
strike, the audi
alteram partem rule had to be complied with before the strikers were
collectively dismissed.

114. Dingake J.
correctly found that participation in an illegal strike constituted
serious misconduct, as reflected in paragraph
12 (1) of the NIR Code,
and that this brought the conduct of the strikers within the ambit of
section 27 of the PSA. He might have
added that this is all the more
so when such participation amounts to a criminal offence and is in
defiance of a court order.

115. Dingake J. also
correctly found that a hearing on an individual basis “would
have been cumbersome and not reasonably practical.”
This is
undoubtedly the case. Three thousand employees were involved, all
over Botswana, who were not at work, but could have been
anywhere,
and time was of the essence.

116. I agree with
the learned Judge that, for the reasons given earlier, the strike was
generally peaceful, in the sense that there
was no violence or
destruction of property, at least insofar as the essential services
employees were concerned. There was, however,
as I have also found, a
real risk to the lives and well-being of patients requiring medical
attention, particularly in rural areas
where a clinic is the only
facility available and to the poor in urban areas, who cannot afford
to pay private doctors or private
hospitals where these are
available.

117. There are a
number of his other findings, though, with which the appellants take
issue. These findings were founded on the
affidavits and annexures
filed, with no viva voce evidence, so that this court, sitting as a
five Judge bench, is in as good as
position as the Judge a quo, to
revisit and either verify or discount those findings, based upon the
same material that was before
him. See KELAOTSWE vs THE ATTORNEY
GENERAL (2006) 1 BLR 229 CA at 233; BERGSTAN (PTY) LTD vs THE
BOTSWANA DEVELOPMENT CORPORATION & OTHERS CACGB-020-12 (CA) (not
yet reported).

118. Since the
disputed findings relate to the Judge’s central thesis, that “public
sector employees who participated in an
unprotected strike are
entitled to a hearing before being dismissed”, I should say at
once that that statement is overbroad
in terms of the law in Botswana
as set out above. 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 not reasonable to hold one. In some cases,
particularly in a strike situation,
a proper ultimatum may suffice.

119. The court a quo
held that the dismissals were unfair for a number of reasons, all of
which are challenged by the appellants.
The principal reasons are
dealt with below:

120. Dingake J.
found that there was no evidence that the ultimata 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.

121. This finding
ignores the realities of the situation. It is only the Government
media, as Ms Bakwena confirmed, which reaches
all corners of Botswana
quickly and regularly, and it is the standard means, as is well
known, by which Government issues public
announcements of all kinds -
of water rationing, of veterinary disease restrictions, of salary
reviews, of commissions, and indeed
of ultimata, when these need to
be made. To “forbid” a union member from reading the
Botswana Daily News or from listening
to Radio Botswana (both of
which certainly do not confine themselves to strike news), is an
order of like import to one not to
open any letter received from the
Government, his employer. The chance of it being obeyed is
negligible. The overwhelming probability
is that all the union
members, to whom the strike, which affected their livelihoods, was
the central issue of the day, would have
continued to read, listen to
or watch the Government media, while taking note of their Union’s
scepticism. Even if that were not
so, the Union could not raise the
point when, by its own actions, it purported to deny its own members
the opportunity to receive
Government ultimata as disseminated in the
usual way.

122. It is also
unrealistic, indeed facile, for the Unions themselves to suggest, as
Mr Motsamai did, that they too were unaware
of the ultimata because
they were honouring their own direction to boycott the Government
media. It would have been totally irresponsible
of any union to enter
a state of self-induced ignorance of the events of the day,
particularly on matters which were of such importance
to their
members. These ultimata were reported not only in the Government
media but also in the private press and on the private
radio
stations, which were the Unions’ favoured vehicles for the issue of
their own press statements, some of which took the form
of
instructions or advice to their members.

123. It is
noteworthy that in the Manual Workers’ Case (supra), upon which the
respondents rely, ultimata were issued on three occasions
through
Government press statements, without adverse comment from the Court
of Appeal. In the case of ZONDI (supra), also relied
upon by the
respondents, press statements were equally used, this time in South
Africa, to convey ultimata to striking workers.
Finally, it is the
uncontroverted evidence of Ms Bakwena that the Unions did not inform
the appellant of their instruction to their
members to shun the
Government media, so as to alert them, if they deemed fit, to seeking
a different method of communicating with
their striking employees. In
my judgment the probabilities

were against that
key finding made by the Judge. The circumstances were such as to
justify the conclusion that both the unions and
their members were
aware of the ultimata.

124. Dingake J. next
found that the dismissals were necessarily unfair because prior to
the ultimata or prior to the dismissals
no ‘show cause’ letter was
addressed to the respondents so that they could make representations
on behalf of their members as to
why they should not be dismissed.

125. This finding
was made on the strength of the majority opinion in MODISE’s case
(supra), which, as I have held, is not supported
by our laws and
precedents. In terms of both MOTHUSI’s case (supra) and the Manual
Workers Case (supra) an opportunity to be heard
is only to be given
when it is possible to do so, and where there is a reasonable chance
that the representations could affect
the decision. It is not to be a
hollow gesture made merely to pay lip service to the audi rule.
Further, section 27(2) of the PSA
provides that a hearing need not be
given where it is not reasonable to do so.

126. The appellant
argues that the dismissal was fair because a full hearing was given
on the legality of the strike, in two sets
of court proceedings, and
that if the respondents wished to make representations concerning the
intended dismissals it was open
to them to do so at any stage, as
several ultimata were issued, and the employer’s intentions were well
known to them. Until 10
May 2011 the parties were engaged in
contentious litigation, communicating through their legal
representatives, and by way of affidavits.
After that, and when the
final ultimatum was issued, the parties did meet, and there is no
suggestion that the respondents took
advantage of that opportunity to
make representations on behalf of their members regarding the
ultimata and the consequences of
failure to comply therewith.

127. There are two
initial pre-requisites of a hearing – that the opportunity for this
must be present, and that the beneficiary
of that opportunity must
take advantage of it. Audi alteram partem is, in ordinary
circumstances, a right to be exercised by the
beneficiary (the
employee in this case) rather than a gift to be bestowed by the
employer.

128. The Union is
not, in my view, in the same position as an unrepresented junior
employee, who might be ignorant of his rights.
It is a well-funded
sophisticated body, with highly knowledgeable senior staff, and the
benefit of legal advice. It needs no written
invitation to make
representations on behalf of its members. Rather it has the duty to
do so when it feels this is necessary in
terms of its mandate to
protect their interests. In the present case it chose not to do so.
Instead it embarked on strategies to
neutralize a clear court order,
rather than to ensure compliance, as ordered by the court. As Mr
Myburgh submitted, it sought to
use the devices of suspending the
order by means of an appeal, and of advising its members that it
intended anticipating the return
date of an interim interdict to
justify non-compliance. It also provided its members with unclear and
no doubt confusing information
– that (perhaps) only 30% of the
essential service employees needed to return to work; that essential
services employees who (in
their own view) were not performing the
essential services themselves, need not return to work; and that
following the noting of
appeal “there would be no court order,”
so they could join the strike.

129. As regards the
personal circumstances of particular strikers which might entitle
them to special or different treatment, which
Dingake J. held could
have been conveyed through their Union, I agree with counsel for the
appellant that this was neither practical
nor reasonable. The
employer itself would have had more information on the service
records and performance of its employees than
the Unions would, and
the urgency of the situation, where clinics and hospitals were wholly
or partly unstaffed, rendered it unreasonable
to give the respondents
time to gather personal information from its 3000 members scattered
throughout the country. I hold that
no purpose would have been served
by sending a letter to the Unions inviting them to make
representations against the dismissals
in those circumstances, nor
could the employer reasonably have been expected to do so. In taking
the steps they did take, the appellants
acted fairly. Since the
conduct which, by the ultimata, was to be ceased forthwith was now
criminal conduct endangering members
of the public and was in direct
defiance of a court order, it was reasonable and proper to demand
immediate compliance rather than
to set a deadline and thus, by
implication, condone such conduct further, even for a limited time. I
hold that the form of the
ultimata issued was, in those
circumstances, fair as well.

130. The Judge a quo
held that the dismissals were also unfair because there was not
sufficient time for the Unions to communicate
the court order of 10th
May 2011 to their members in time to prevent their dismissal on 16th
May 2011. That too was an error, in
my judgment, for a number of
reasons. First, the Unions, as the representatives of their members,
had called them out on strike.
It is in the nature of a strike that
it may be suddenly over at any time. So it is the duty of a Union to
keep lines of communication
open to its striking workers so that it
can call them back to work at very

short notice. This
is particularly so when they are employed in essential services and
the public is being disadvantaged. In the

present case the
Unions took a step which was, in my view, ill- advised. In the words
of Mr Motsamai,

“the strikers
were advised by the Unions that they could gather at places
designated in various parts of the country as meeting
points, during
the strike, or stay home, or travel to wherever they wanted to.”

The Unions in this
way potentially lost contact with some of their members who should
all have been on standby to return to work
at a moment’s notice. It
is this, perhaps, which led Mr

Motsamai to complain
in a subsequent affidavit that:

“She (Ms
Bakwena) made no effort to ensure personal service of the court order
on the public service officers she believed
were performing essential
services.”

131. That leads to
the second reason why the ‘insufficient time’ finding is erroneous.
It is because the Unions were the authorized
representatives of all
their members in the court proceedings in which the various orders
were handed down. They in turn instructed
counsel. They were present
in court when the orders were handed down, and service on an
authorized representative is, of course,
service on his client or
clients as well. So there was no duty on the appellant to effect
service at all. The orders were to be
complied with, and if they were
not so complied with, the appellant had the duty to take prompt
action in the public interest.
Certainly it was not proper to suggest
to the strikers that they should await receipt of the court orders so
that they could read
and consider these before complying. The
effective order was made in open court and was clear. The suspension
of the earlier order
was lifted, and the strikers were to return to
work forthwith. Their representatives were present and received the
order.

132. In this
context, the Judge a quo also found it unfair that the strikers were
not given sufficient time to reflect on the ultimatum
and to decide
whether or not to comply with this. I cannot agree with that finding
either. This was not an ultimatum in the usual
sense. Rather it
represented an instruction to obey a court order and to desist from
what was now criminal behaviour, or face the
consequences. That is a
matter which goes directly to the upholding of the rule of law, which
is a key foundation of our democracy.
It is not open to any person in
Botswana to decide whether or not a court order should be obeyed or
to demand time to consider
whether or not it should be obeyed. Court
orders are, as I have said, to be obeyed forthwith, with disagreement
being expressed
thereafter, through an appeal or other available
lawful channels.

133. Finally on this
subject, the appellant takes issue with the

Judge’s statement
that:

“With respect
to the argument advanced by the respondent that a disciplinary
enquiry or a hearing could not be held where there
was a crisis
occasioned by the employee embarking on industrial action, my only
comment is that a crisis is inherent in any strike
situation.”

134. These remarks
reflect the error in approach to which I have already drawn
attention, namely the treatment by the learned Judge
of a strike by
essential service employees as being of a similar nature to an
ordinary employees strike. That is not so. The deprival
of medical
services in particular will certainly create a crisis for, and
endanger the well-being of, a section of the public,
particularly in
rural areas – to mothers-to-be in labour, to accident victims, to
AIDS patients in need of anti-retrovirals, to
chronic tuberculosis
patients, and no doubt to many others. The Government had, in our
view, a duty to act decisively and without
delay to address the
crisis without postponing its action for the purpose of a hearing or
hearings. Mr Myburgh was correct when
he submitted that a strike by
essential service employees in the health sector “is the
quintessential example of when an employer
cannot reasonably be
expected to hold a disciplinary enquiry.”

135. The appellant
complains that the Judge a quo was inconsistent in first holding that
it would have been “cumbersome and
not reasonably practicable”
to hold disciplinary hearings on an

individual basis,
and then later adding that:

“It is my
considered view that grave injustice would result if an employer is
allowed to treat employees who participated in
the illegal strike as
an undifferentiated mass.”

136. The latter
statement is an attack on collective hearings or collective
dismissals generally. It is recognized, however, both
in the PSA and
in the NIR Code that in certain circumstances it may not be
reasonable to hold a hearing, and that collective action
may be fair,
so the Judge’s statement cannot be endorsed as a general proposition.
I have already dealt with the impracticality
of receiving
individualized representations through the Union and I need not
repeat that. The weakness in the latter approach of
the court below
is that Dingake J. lists, as Mr Brassey did too, a number of matters
of an individual nature which should in fairness
have been considered
before the penalty of dismissal was imposed, without suggesting how
that could have been achieved in an emergency
situation, where delay
could further endanger lives. Some of the personal circumstances
adverted to were whether or not individual
strikers heard of the
ultimatum, or were sick or on leave. Other factors included the
nature of the job, length of service, past
loyalty, and the effect of
dismissal on acquired benefits.

137. To resolve an
emergency situation, it may be necessary, as I have said, to take
collective action, because it is generally
accepted that strikers,
for example, stand or fall as a collective, without differentiation
of individuals. This was the approach
of Mr Motsamai as a Union
leader, but he also added, significantly, that:

“Assuming for
the sake of argument that the majority of the essential services
employees were aware of the court orders and
had sight of the various
press releases and were fairly and lawfully dismissed, this cannot
provide justification for also dismissing
the minority, who never had
sight of the releases, or who may have been ill on 16 May 2011, or
had some other reasonable explanation
for not reporting for work on
the day, without making provision for an ex post facto hearing.”
(my emphasis)

138. That seems to
us, at least in the case of public service dismissals in
circumstances such as the present ones, to present a
sensible
solution. To comply with the rules of natural justice the process of
dismissal, taken as a whole, must be fair in the
circumstances. In
the situation of a private company strike, which involves a purely
economic contest, it may be different. That
is not a matter we need
address now. We have already held that in terms of Botswana law,
where a collective dismissal in the public
service is properly
effected, then the individual case of an innocent person swept out by
the tide, can fairly be addressed by
a post-dismissal opportunity to
nullify the dismissal by, for example, an appeal. In the aftermath of
the essential service workers
strike, the dismissed employees had a
number of options if their individual circumstances rendered their
dismissals unfair. They
could make personal representations to the
employer, pointing out that a mistake had been made in their case; or
they could raise
a grievance under the TDA, which applies to public
officers; or they could appeal to the Public Service Commission in
terms of
the Constitution; or they could approach the employer
through their Union to seek re-instatement. It is quite possible that
aggrieved
individuals may actually have adopted one or other of these
courses. No evidence of actual individual cases was placed before the

court, only generic possibilities.

139. Certainly the
Unions were heard on this issue because, as Mr Motsamai testified,
the re-instatement of their dismissed employees
was a subject of
discussion in subsequent meetings to resolve the general strike. The
advice of the Unions to their members was
not to choose any of the
available options, but rather to all submit individual letters
seeking re-employment by the Government.
According to Mr Motsamai all
of the persons supporting the application which led to this appeal
did so. As we have held, fairness
may be achieved when the right to
be heard, even ex post facto, in a collective dismissal, is given,
provided that the person hearing
the appeal or representations has
the power to reverse the dismissal. That was so in this case.

140. Under this
heading, one additional argument was raised, and that is that
individual employees might, if given the opportunity,
have
successfully raised the defence that in their own case the strike was
lawful, because their particular work (for example,
as a groundsman
in a hospital) did not constitute an essential service. That argument
was accepted by Dingake J. in his judgment.
I do not believe that
such an argument should prevail in the present circumstances,
notwithstanding an indication to that effect
in the strike rules
negotiated between the parties, and in the Freedom of Association
Digest. The court orders here were quite
clear. They referred to
employees in essential services, with no exceptions. All employees in
the health services, for example,
were covered. Neither the PSA nor
the TDA provides for exceptions either. In our view all the employees
in an essential service
play an important role individually towards
ensuring the effectiveness of the team delivering the essential
service in question.
Along with doctors, nurses and other
specialists, the support staff, caterers, groundsmen, cooks and
others ensure a hygienic,
safe, and healthy environment conducive to
the effective delivery of the service and to the health and swift
recovery of patients.
In a remote rural setting in particular, as is
well known, groundsmen, nightwatchmen and the like are frequently
called upon to
perform vital supporting roles to the nurses who man
the clinics. The role of none of these should be down-played, or
reduced in
its dignity, to the status of a non-essential or
disposable component of the team. To try to draw such distinctions
would be unfair
and, as Ms Bakwena said, to try to differentiate
non-essential categories, and particularly to suggest (as Mr Motsamai
did) that
they could decide for themselves whether or not they
performed essential services, would lead to a chaotic situation.

141. For all the
above reasons, I hold that the process adopted by the appellant, and
the dismissals themselves were, having regard
to all the
circumstances, fair and in compliance with the rules of natural
justice.

The appeal must
therefore succeed.

In result:

(1) The appeal is
upheld.

(2) The order of
Dingake J. in the court below is set aside, and is replaced with the
following order:

“(a) The
application is dismissed.

(b) The costs of the
application are to be paid by the four applicants jointly and
severally, one paying the others to be discharged.”

(3) The costs of the
application for a stay of execution of the judgment of Dingake J. are
to be paid by the four respondents jointly
and severally, one paying
the others to be discharged.

  1. The costs of
    the appeal, including the costs of two counsel, are to be paid by
    the four respondents jointly and severally, one
    paying the others to
    be discharged.

DELIVERED IN OPEN
COURT AT GABORONE THIS 20TH DAY OF MARCH 2013.

I.S. KIRBY JUDGE
PRESIDENT

I AGREE

J.G. FOXCROFT
JUSTICE OF APPEAL

I AGREE

LORD ABERNETHY
JUSTICE OF APPEAL

I AGREE

I.B.K. LESETEDI
JUSTICE OF APPEAL

I AGREE

M.S. GAONGALELWE
JUSTICE OF APPEAL





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