*High Court ends pay discrimination against Kgosi Sinvula
*Govt ordered to pay him E2 salary arrears within 90 days
In a significant victory for traditional leadership, the Maun High Court last Friday ordered the government to upgrade the salary scale of the Basubiya chief, Kgosi Lawrence Liswani Sinvula, to E2 bracket and pay him three years’ worth of backdated salary.
Delivering the judgement, Court President Justice Godfrey Nthomiwa dismissed the State’s technical objections, ruling that the Ministry of Local Government and Traditional Affairs had acted unlawfully by keeping the tribal leader on a lower D2 pay scale despite his promotion back in 2023.
The state has been handed a strict 90-day deadline to calculate and pay all outstanding salary arrears, representing the difference between the D2 and E2 scales, alongside legal costs.
The legal battle centred on a fundamental question of administrative law, establishing that the state cannot use historical designations or “administrative convenience” to deny legally recognised chiefs their lawful remuneration.
“It is common cause that the applicant was initially appointed in 2020 as Kgosi (sub Chief) of Kavimba under section 21 of the Bogosi Act and remunerated at salary scale D2, and that in 2023 he was duly recognised as Kgosi of the Basubiya Tribe in terms of section 6 (2), which recognition was gazetted and defines his current legal status,” stated the judge.
The state had argued that Kgosi Sinvula merely stepped into his retired father’s position and was therefore bound to a D2 salary scale. Government attorneys claimed that for administrative purposes, the Chief was performing the functions of a “Sub-Chief”, a title Nthomiwa pointedly noted does not even exist within the Bogosi Act. Rejecting this stance, the Court ruled that a change in status from a Sub-Chief to the Kgosi of a tribe (paramount chief) carries substantive legal consequences.
“That the Applicant is in the same legal position as other Dikgosi under Section 6 (2) cannot be gainsaid. What is unclear is why he is treated differently. Such differential treatment is arbitrary and inconsistent with constitutional principles of equality and rationality. The argument of succession does not seem to me to answer the differential treatment he is getting and yet recognised in the same way as other chiefs appointed under the aforesaid section of a tribal community,” Nthomiwa judged.
Once a leader is designated by their tribe and formally recognised by the Minister through the Government Gazette under Section 6(2) of the Act, they legally occupy the singular office of Chief and are entitled to all corresponding benefits. Nthomiwa emphasised that it is administratively illogical for the state to rely upon a leader’s prior status to determine their present rights.
In a bid to throw out the case, the Attorney General argued that the Chief was five years too late to challenge his pay structure, claiming the matter should have been brought as an administrative review. The Court completely rejected this argument, noting that because the State could not produce any official document from 2023 fixing his new chieftainship appointment at a D2 scale, there was no actual administrative decision to review, making a declaratory order the correct legal path.
Furthermore, the judgement pulled back the curtain on a bitter behind-the-scenes dispute, revealing that when Kgosi Sinvula persistently made representations to fight for his rights, the Ministry escalated the matter by threatening to derecognise him entirely.
Ultimately, the Court found that the government’s actions violated the foundational principle of equal pay for equal work. Because other Dikgosi recognised under the same statutory provision across Botswana are paid at the E2 scale, treating the Basubiya leader differently was deemed arbitrary, unequal, and irrational.
“It follows that once recognised under Section 6(2), the Applicant became Kgosi of a tribe in the same legal position as other Dikgosi recognised under the provision. He performs the same functions and occupies the same statutory office,” the judge noted.
Although the government challenged the nature of Sinvula’s chieftainship by reference to issues such as tribal territory or membership in Ntlo ya Dikgosi, the judge noted that this argument was misplaced because “the law recognises the designation by the tribe and the Minister’s recognition, and nothing further is required.”
Nthomiwa ordered a formal declaration that Kgosi Sinvula is entitled to the E2 salary scale effective from February 2023.
Sinvula was represented by attorneys Mishingo Jeremiah and Morupi Mbeha, while the state was represented by Deputy Attorney General Joao Salbany.
