9 August 2012:
Justice is served in the Pako Mcintire Luke Vs BONELA case
A judgement was reached today at the High Court in the case between Pako Mcintire Luke (the applicant) and the Botswana Network on Ethics, Law and HIV/AIDS (BONELA-the respondent). The brief facts of the case are that, the applicant; a former employee of BONELA had brought a motion proceedings on the 2nd December 2011 against BONELA praying for a declaration that his termination of employment in November 2011 was procedurally unfair, and null and void; that he should be paid full salary arrears and benefits; be restored to his financial position had the respondent not unfairly dismissed him and that he should be awarded a 10% interest from the time of contract termination to its end.
In response; BONELA opposed the application mainly on two grounds; that the Applicant had brought the matter to a wrong court, that the High Court had no jurisdiction to hear the matter and also that Applicant had brought the matter on wrong proceedings. In his judgement, the learned Judge Tafa, did not make a determination as to the issue of the court with competent jurisdiction. However he opined in regards to the termination of contract that in fact the Applicant had on investigations accepted and admitted to having stolen the phone and in the process used it and returned it as well. The Judge found that in that respect there was no need for the Applicant to have called witnesses as he claimed that his dismissal was unfair and procedural.
At Paragraph 14 of the judgement he states that
“I do not believe however, that where an employee is alleged to have committed an offence for which summary dismissal is a sanction and when called by a supervisor to say his side of the story and he confesses to the commission of the offence there is a need for setting up of a full board of enquiry. This would be both superfluous and unnecessarily time consuming’’.
Further that this was a case for a claim of damages to which the Applicant brought wrong proceedings where there was a serious dispute of fact which could not be solved on affidavits but with oral evidence. The Applicant should have brought the proceedings by way of action.
The Learned Judge stated thus at Paragraph 26 of his judgment that;
‘’In answering the question whether a claim for liquidated damages may be initiated by way of application or whether the claimant should have commenced proceedings by way of action. Hence there is no doubt that in order to prove damages oral evidence will be necessary and for this reason application proceedings were inappropriate’’.
The Learned Judge therefore dismissed the matter on those grounds with costs.
Speaking on behalf of the organization, BONELA Executive Director, Mr. Uyapo Ndadi said that BONELA naturally welcomes the judgement as justice has been served. He also said ‘this case chiefly demonstrates two things, on the one hand that clients are not properly advised at times and that judgement is sending a message to all lawyers to operate above board and advise their clients on proper cause of action when faced with difficult situations because had the proper cause of action been taken, the court would have had an opportunity to listen to the evidence while on the other hand the case has clearly shownthat BONELA is accountable to its policies, the board, members of BONELA and donors’.
In evoking a sense of accountability in all of us; Mr Ndadi further said, ‘imagine an organisation that has no consequences for theft! So BONELA subscribes to the same principles.’