Justice Tshepho Motswagole has dismissed an urgent application by the former Chief Executive Officer (CEO) of the National Arts Council of Botswana (NACB), Shombie Ellis saying the applicant has failed to demonstrate the urgency of her case.
Ellis was challenging last month’s termination of her employment by former Minister of Youth Sport and Culture, Tumiso Rakgare after she allegedly exposed what she termed as corruption and theft of public funds by some officials of the NACB.
In her Affidavit, the former CEO cited among others, a suspicious transaction in which she was instructed to make a payment of approximately P260,000 to an entity that she said was non-existent.
Upon listening to the arguments by the attorney for the Applicant against the Respondents, Justice Motswagole said that Ellis was seeking a stay of the minister’s decision pending review, which can’t be granted.
“However, whether or not such relief can be granted in the circumstances of this matter is a matter to be decided in the substantive matter. The Application was brought within five days of the decision and there is no allegation of delay. The respondents’ objection seems to be directed towards the issue whether or not the Applicant can have substantial redress in due course,” observed the Judge.
He said that the Applicant’s argument that termination of employment would essentially remove her livelihood, funding both sustenance and shelter, and care for defendants was not valid enough to secure urgency.
“If this submission is correct, then it would mean that all cases of dismissal of employees are by definition urgent, but that is not the position of the law. The cases of dismissal are routinely brought in the normal course. Indeed, in cases of breach of contract of employment by the employer, the common law requires the employee to mitigate the loss by seeking alternative employment and where review proceedings are available, the decision terminating employment may be annulled and the employee may be reinstated in appropriate circumstances,” he said.
“There is no doubt that she has alternative reliefs at her disposal, which include review proceedings or action for damages for breach of contract or other similar reliefs. This matter is not urgent and is accordingly struck out,” he said, adding that the Applicant shall pay the costs.
