The Court of Appeal (CoA) recently made a landmark ruling determining that judicial officers are not necessarily government employees.
The ruling, which was made in the context of labor disputes, found that the relationship between the government and judicial officers was not that of employer/employee and as such disputes between the two cannot be resolved by a labour officer or the Industrial Court.
The decision was made in a case between former Ghanzi Principal Magistrate Thabo Malambane (Respondent) vs The President of Botswana, Administration of Justice, Judicial Service Commission, and Attorney General (Appellants).
The latter had filed an appeal with the CoA following a decision by the Industrial Court in favor of Malambane. He had successfully filed a complaint of unfair dismissal after being fired by then President Ian Khama in 2014.
The Appellants, represented by Thato Mujaji of Attorney Generals Chambers, had challenged the powers of the Industrial Court to preside over the matter. They argued that judicial officers are not ordinary employees as defined by the Trade Dispute Act which governs cases brought before the Industrial Court.
In a unanimous ruling delivered by Justice Isaac Lesetedi, alongside Justices Monametsi Gaongalelwe and Modiri Letsididi the three man panel found that a judicial officer is not an employee within the terms of the Public Service Act (PSA) and that consequently the government cannot be their employee in terms of the Act. They found that a judicial officer having been engaged for their services under the Constitution is not an employee within the contemplation of the PSA, with Judicial service now being regulated under the Judicial Services Act of 2014.
“The concepts of employee, employer or contract of employment or trade dispute do not feature in that Act.”
The court cited Section 104 (1) of the Constitution which states: “Power to appoint persons to hold or act in offices to which this section applies, to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the President acting in accordance with advice of the Judicial Service Commission.”
The offices to which the section applies are; the office of the Registrar of the Court of Appeal and the High Court; all offices of magistrate; such other offices of President or member of any court or connected with any court prescribed by or under an Act of Parliament, etc.
The Court found that the notion of performing labour under the orders of another person (employer/employee relationship) including the State is inconsistent with the impartiality and independence with which a judicial officer like a Magistrates is expected to act.
“An employment contract generally contemplates an employer / employee relationship in which there is an employer who hires an employee for his labour and the employee is answerable to the employer in the letting of his labour and performance of it,” the Court said. “But a magistrate as a judicial officer is required under the law to act impartially and independently of any other person including the Government or State in the discharge of his or her duties of hearing and determining disputes brought before him or her. This applies to all disputes including where the State is a party. The State is a party in almost every criminal case that comes before our courts. Private prosecutions are a rarity.”
The Court cited various supportive judicial authorities including the UK’s BRIENV DEPARTMENT FOR CONSTITUTIONAL AFFAIRS  ruling that:
“It is impossible to regard the judiciary as employed under or for the purposes of the Ministry of Justice. They are not civil servants or the equivalent of civil servants. They do not work for the Ministry. It is slightly more plausible to regard them as working under or for the purposes of the Lord Chief Justice…”
Another authority ANNAH V GOVERNMENT OF THE REPUBLIC OF NAMIBIA  states:
“…It has also been submitted in support of the applicant’s case, that Judges are controlled by the State as to the times when they have to work; as to the place where they have to work; as to when to take vacations; as to (obligatory) pension and medicatal (sic) contribution as to the deductions of income tax on a PAYE basis etc. I doubt the correctness of some of the assertions. In any event, they are peripheral as opposed to being germane to the Judge’s function, the real nature of which is the execution of his or her judicial functions…”
In support of the above ruling, the CoA found that although the operational reality of the functioning of the State does not permit complete administrative independence of the operations of the judiciary at an institutional level, they all being resourced from the same public purse and sharing the allocation of the administrative staff from one public service pool, it is necessary that the judiciary and the other branches of the State jealously guard judicial independence from any interference for it is in the interest of a proper functioning of the State that the judiciary acts independently and impartially to administer a fair dispensation of justice.
“That will not only foster public confidence in the justice of the system and trust in the rule of law but also encourages an investment trust in the country if there is an independent, impartial and efficient administration of justice system. The judiciary’s oath and ethos are to apply the law and determine cases that come before it impartially without external influence, fear or favor not ill-will.”
Delivering the unanimous ruling Lesetedi said the Industrial Court is established as “a court of law and equity” while on the other hand, the High Court is a court of law with unlimited jurisdiction.
For that reason therefore, he said, Section 127(10) of the Constitution does not confer any jurisdiction to a “court of law and equity” but only to a court of law. That, he said, disposes of the Respondent (Malambane)’s argument of the Industrial Court’s constitutional mandate.
“For those reasons, the appeal must succeed and the decision of the Industrial Court must be set aside. The appeal against the decision of the Industrial Court succeeds with costs,” the three panel of judges ruled against Malambane.
The fomer Magistrate was fired under former President Khama’s administration in 2014 for “insubordination”. Malambane had boycotted presiding over cases brought before his court and demanded that the Regional Magistrate furnish him with an explanation as to why a case that was registered before him had been moved to Gaborone without his consent. The case involved the murder of a white Ghanzi farmer Reinett Vorster in which Malambane granted the two suspects unconditional bail.