AG is making absurd statements – Monthe
When Advocate Sidney Pilane met with his equally experienced colleague, Kgalalelo Monthe of Monthe Marumo Attorneys, last Thursday, it was obvious that the encounter was going to be an explosive one.
At the centre of their encounter was the Attorney General’s wish to appeal a September ruling by Justice Michael Leburu to declare the dispute between the government and ex-soldiers a Class Action. Some ex-soldiers are at loggerheads with the government over their 2001 transfer from BDF Act to BPOPF.
Immediately after a brief meeting in the chambers with Justice Leburu, Pilane kicked off the day’s proceedings by casting doubt on the manner in which the interlocutory application for the Class Action was improperly brought, saying it was tantamount to an ambush. He said they were not accorded time to prepare for the case adding that it should have been brought to court as a full application.
The advocate argued that there is no authority in Botswana on Class Action and therefore the court ought to rely on foreign precedents such as South Africa, the United States of America, and United Kingdom.
Pilane also said the representatives of the ex-soldiers being Lieutenant General Gaolathe Galebotswe, Brigadier Shadrack Moloi, Brigadier David Dikobe, Colonel Tjatanga Moloi, and Major Victor Kebakile have no legal standing to represent the over 2000 former soldiers in the matter.
Each of the ex-soldiers Pilane insisted must be called to the stand to testify how they ended up under the Botswana Public Officers Pension Fund (BPOPF) since some of them allege that they were coerced into migrating.
“While it is common cause that the Plaintiffs did transfer, it is disputed whether the transfer was voluntary and what information each Plaintiff had at the time they opted to transfer. The Plaintiffs also allege that the transfer was not voluntary and that the Plaintiffs had, no information on making that coerced decision,” Pilane said.
He also submitted that there are prospects of success in their appeal hence the proceedings in main case should be halted.
However, Monthe would not take any of that, arguing that rulings in interlocutory applications are not appealable.
According to Monthe, Judge Leburu’s ruling was supposed to give clarity on what direction the main case should take, adding that Galebotswe and his team were in leadership positions in the BDF, and are representing 2294 applicants including 353 who are deceased.
“This court therefore was alive to the application for the matter to proceed as a class action given the commonality of the issues both factual and legal that affected all the parties,”
He further argued that even the rules of the Court of Appeal recognise that such a huge crowd could seriously jeopardise the case if each and every of the soldiers were to be called to testify and be subjected to cross examination.
The defence attorney accused the AG team and Pilane of making what he called absurd statements on trying to justify why the matter should not proceed as a Class Action case saying they are only employing delay tactics.
Furthermore, he said there are many precedents in Botswana to demonstrate that rulings in interlocutory applications cannot be appealed.
“The Court of Appeal has therefore spoken loudly and clearly on what the position in Botswana is in regard to purely interlocutory matters of preparatory nature and the answer is they are not appealable at all,” he said.
Meanwhile The Voice newspaper has established that:
1. Junior officers – Staff Sergeant, Sergeant, Corporal, Lance Corporal, and Private are not getting any monthly payments either from BDF or BPOPF and some depend on families for support.
2. Senior Officers-Lieutenant General, Major General, Brigadier, Colonel, Lieutenant Colonel, Major, Captain, Lieutenant, and 2nd Lieutenant are getting between 25 and 50 percent of their salaries when they left the army. They could be getting more (65%) under BDF Act.
3. Final Court decision – The outcome of this case is likely to cause chaos in the disciplined forces since some serving BDF members, Botswana Police Service members, and Department of Prisons and Rehabilitation are likely to demand the same benefits.
4. Brigadier earns between P40k-P45k – Retired officer gets P10k monthly pension payment, whilst junior officer gets zero.