Magistrate Ditlhong loses her dismissal case
This is dictated by the principle, which finds application in the doctrine or maxim of stare decisis ( to stand by decisions previously taken) also referred to as the rule of precedent
Gaborone based Magistrate, who was fired by the president in 2020 for resisting her transfer to Gumare Magistrates has lost her case at the apex court.
A Court of Appeal bench of three judges, Isaac Lesetedi, Fritz Brand and Acting Judge Lot Moroka has upheld an appeal of the orders of the Industrial Court by President Mokgweetsi Masisi as the 1st Appellant, Judicial Service Commission ( JSC) 2nd Appellant, Registrar and Master of the High Court 3rd Appellant and Attorney General is the 4th Appellant against dismissed Magistrate Priscillah Ditlhong.
The respondent was a magistrate and was dismissed from employment in that capacity by President Masisi under section 104 of the Constitution in March 2020, after disciplinary proceedings by the JSC. She then instituted action in the Industrial Court, seeking reinstatement for her position as Magistrate on the basis that her dismissal was both procedurally and substantively unfair.
At the Industrial Court, the Appellants argued that Ditlhong’s claim amounted to judicial review dressed up as a trade dispute, while Industrial Court has no jurisdiction to entertain review proceedings. They further pointed out that in terms of Section 103 ( 4) of the Constitution, the JSC shall not be subject to the direction and control of any other person or authority in the exercise of its functions.
According to the Appellants, while the JSC is empowered to regulate its own procedure, the case advanced by Ditlhong raised questions regarding the procedure adopted by the JSC in the disciplinary enquiry.
In the judgement, Justice Brand stated that trouble started on 27th January 2017 when Respondent was told by the Registrar that the Chief Justice has decided, as he is empowered to do, to transfer her from Gaborone to Gumare Magistrate Court. Ditlhong resisted her transfer on various grounds.
“This eventually led to an application by respondent to the High Court to have the decision giving rise to her transfer, set aside. When the application proved to be unsuccessful, she appealed to this court. But on 5th December 2018, her appeal was dismissed with costs. In November, the respondent was charged before the Judicial Service Commission with two counts of dishonest conduct, which followed inter alia from the execution of the cost of orders against her. In March 2020, she received a letter informing her that she was summarily dismissed by the President with immediate effect. This gave rise to the application for her reinstatement before the industrial court that eventually led to her appeal,” explained Justice Brand.
The judge also cited the The President of Botswana and Others v. Thabo Malambane case.
“When the industrial court gave its judgement in this case, the Malambane case was still pending in this court. Accordingly, the industrial court did not have the benefit of this court’s judgement on the same issue. Counsel for the respondent conceded, rightly in my view, that we can only decide in her favour if we find that Malambane decision was clearly wrong since the two cases are not distinguishable on the facts. This is dictated by the principle, which finds application in the doctrine or maxim of stare decisis ( to stand by decisions previously taken) also referred to as the rule of precedent,” said the Judge, adding that to repeat the reasoning which gave rise to the decision in Malambane case would serve no purpose.
He indicated that they were formulated with admirable clarity in the judgement of Justice Isaac Lesetedi. He said reference to that judgement reveals however that a consideration, which weighed with the court, was that a magistrate is not an employee within the meaning of the Public Service Act. Flowing from that its further consideration was that, since the relationship between government and its employees is governed mainly by the provisions of the Public Service Act, logic dictates that the magistrates were likewise not intended to be employees under the Trade Dispute Act, he added.
He said the Industrial Court applied the same logic, but it found that magistrates are indeed covered by the provisions of the Public Service Act. Hence, applying the same logic it found that since they fall within the ambit of employees in the Public Service Act , they must also be employees in terms of the Trade Disputes Act, said the judge.