Millions slip as CoA boots Khama-axed magistrate
Aformer senior magistrate who was unceremoniously axed during Ian Khama’s administrationlost out on millions of pula as the Court of Appeal (CoA) ruled that the Industrial Court had no business presiding over his matter.
Thabo Malambane, who was dismissed in 2014 by Khama’s administration, had won his case at the Industrial Court and was awarded costs running into millions of pula despite the State’s contention that the court had no right to do so, as the case was not an employer/employee trade dispute. According to the court, it has been established that Malambane was not an employee as per the Public Service Act (PSA) since the Judiciary was an independent arm of the branch of government. Justice Isaac Lesetedi when ruling on the matter said the Industrial Court, since it was a court of law and equity, did not have any jurisdiction to deal with the matter as it was not an employee/ employer issue.
Lesetedi explained that a court of law, which is the High Court, was the only one with unlimited jurisdiction to deal with all kinds of matters. “Judicial officers are not employees and should not resort to industrial action to advance their interest in their conditions of service.
They can only approach the court of law for remedies for the review of the actions taken,” he said. Lesetedi pointed out that according to the Legislature, the former magistrate was not an employee within the terms of the PSA and that logically under the same legislation, the government cannot be his employer.
“It is therefore common cause that the respondent is not an employee within the contemplation of PSA as he has been engaged for his service under the Constitution. Save as provided for under the Constitution, judicial service now regulated under the Judicial Services Act introduced in 2014.
The concepts of the employee, employer or contract of employment or trade dispute, do not feature in that Act,” he said. He pointed out that it would not be right for the judicial officer to be recognised as an employee since the concept of judicial independence applied both at an individual level and an institutional level. He further pointed out that the principle of independence and impartiality was enforced by the precept of equality before the law where
the courts treated every litigant before it, including the State equally.
“It would not be inimical to the notion of judicial independence and impartiality at both individual and institutional levels if judicial officers were regarded as employees of the State. They have to be subject to parity of legal cognition as the other branches of the State,” Lesetedi noted. The judge said the appeal that was brought by the State should succeed as he was fully aware of the statutory provisions cited in the case on definitions of an employer and employee, contracts of employment and the powers of a court of law under the PSA that indicated an awareness by the Legislature that the Judiciary was an independent arm of the government.
Lesetedi said this meant that its officers were not employees of the State, but officers of the State who held their office under a dispensation, which was not an employee/employer relationship. The background of the case is premised on that Malambane alleged that said people who were instrumental in his dismissal wanted him to do them favours when presiding over cases. In his sworn statement at the Industrial Court, he had explained that until the day he gave two murder accused bail, before his dismissal by Khama in 2014 following a recommendation by the Judicial Service Commission (JSC), he had a good relationship with his supervisor, now High Court judge, Christopher Gabanagae who was then the Chief Regional Magistrate for South. He said following the events leading to his dismissal, he felt bullied by Gabanagae who was constantly trying to influence him in his decisions in court and to do him favours. It was alleged that the accused persons that Malambane gave bail to, had somehow allegedly murdered someone who had close relations with the former president. Following his dismissal, he then sued Khama, Administration of Justice, Judicial Service Commission and the Attorney General.