When an employee calls in sick on or around the date of a scheduled disciplinary hearing, is it a genuine need or a tactic to delay the disciplinary process?
Unfortunately, a trend has emerged where accused employees attempt to frustrate ongoing disciplinary proceedings through deliberate medical leave, making it difficult for employers to navigate the fine line between legitimate sick leave and its potential misuse.
Addressing what recourse is available to an employer in such a situation requires first examining the two fundamental rights that maintain balance within the workplace ecosystem.
Employer’s Right to Maintain Discipline vs Employee’s Right to be Heard
Employee discipline plays a vital role in maintaining order, productivity, and adherence to company policies and standards in the workplace. Its absence would not only negatively affect production and service delivery but would also lead to the deterioration of the overall workplace environment. Therefore, it comes as no surprise that an employer’s right to maintain discipline in the workplace has been firmly established in our jurisdiction.
Equally recognized is an accused employee’s right to be heard, which affords them the opportunity to present their version of events and defend themselves against potentially unjustified accusations. Without it, workplace environments would become breeding grounds for abuse of power and arbitrary disciplinary action.
While both rights are important in ensuring fairness in the workplace, there are instances where the two come into conflict.
Waiver or Forfeiture of Employee’s Right to be Heard
The old (but gold) case of Phirinyane v Spie Batignolles 1995 BLR 1 (IC) (“Phirinyane”) is arguably the leading authority for the principle that an accused employee’s right to be heard is not absolute and that an accused employee can waive or forfeit their right to be heard through their conduct.
The Industrial Court in Phirinyane held that the following constituted conduct that could warrant the loss of an accused employee’s right to be heard: (i) deserting the workplace; (ii) displaying unruly behaviour or blatantly abusing the employer when the employer is trying to discuss, convene, or hold a disciplinary hearing; and (iii) refusing to attend a scheduled disciplinary hearing after being given adequate notice. (N.B.: This is not an exhaustive list.)
The golden thread that runs through the above-mentioned conduct is that it involves behaviour that actively frustrates or obstructs an employer’s ability to conduct a fair disciplinary process, such that the employer cannot reasonably be expected to hold a hearing.
Directing employers on what to do when such conduct arises, the Industrial Court in Phirinyane advised that a disciplinary hearing cannot be dispensed with altogether. Instead, an employer must proceed with the hearing in the accused employee’s absence. This ensures that the employer can satisfy itself that the alleged misconduct had been committed and that the accused employee was the one who committed it.
In this way, due process and fairness are maintained throughout the disciplinary proceedings, despite the accused employee’s attempts to frustrate them.
Continuing a Hearing Without the “Sick” Employee
Considering the above principles, the following question arises: When an employer suspects that an accused employee is using sick leave to avoid a disciplinary hearing, can the employer proceed in the employee’s absence?
To answer this, an examination of local case law on the subject is imperative.
Steven Dennis Mangenela v The Attorney-General and Another CACGB-094-23 (“Mangenela”)
In Mangenela, the Court of Appeal clarified that if an employee repeatedly presents sick notes that conveniently align with hearing dates, this pattern may indicate an attempt to frustrate the disciplinary process. In such cases, the employer is entitled to disregard the sick notes and proceed with the hearing in the employee’s absence.
The Attorney-General & Another v Thatayaone Donald Disang CACGB-002-24 (“Disang”)
The Court of Appeal held that sick notes must be considered by the employer in light of the employee’s general conduct during the disciplinary process or from the time the employee became aware of the possible charges.
The employee had submitted sick notes coinciding with the scheduled dates of the disciplinary hearing a total of six (6) times. The repeated submission of sick notes was coupled with the employee’s initial reluctance to proceed with the hearing—first through an extension request to enable him to adequately address the allegations (which was granted), and second through a request for further particulars on the allegations (which particulars were known to him and did not affect his ability to address the allegations).
The Court of Appeal found that the employee’s conduct was indicative of a strategy to frustrate the disciplinary process and that the employer was consequently well within its rights to have the disciplinary hearing proceed in his absence.
Portia Mosadi v The Attorney-General CACGB-101-21 (“Mosadi”)
The employee faced, among other charges, two counts of theft, misappropriation, or wilful dishonesty against the Government. She was informed that the hearing would be held on the 9th of November 2017 and failed to turn up on that day on account of ill health, having presented a sick note.
The hearing was rescheduled to the 30th of November 2017, and subsequently to the 6th of December 2017, the employee having failed to show up both times for non-health-related reasons. The hearing was rescheduled to the 13th of December 2017, with the chairperson of the disciplinary committee cautioning the employee that this would be the last postponement. The employee still failed to appear without explanation. The hearing proceeded in her absence, and she was found guilty. She was accordingly notified of the outcome, and that mitigation was scheduled for the 21st of December 2017, which she also did not attend.
It was only after the fact that the employee claimed to have been on sick leave between the 13th and 21st of December 2017 but had not presented a sick note to that effect. She argued that her consequent dismissal was procedurally unfair, as her right to be heard had not been fulfilled.
The Court of Appeal, having considered the employee’s claim of ill health and her general conduct from the time she became aware of the possible charges, held that the employee was more likely than not in good health at the time. The claim of ill health being a possible ruse, the employer was justified in conducting the hearing in her absence.
Here, the employee was invited to a disciplinary hearing scheduled for the 17th of October 2014 and was unable to attend due to ill health, having presented a sick note. The hearing was subsequently rescheduled for the 27th of October 2014. On that date, the employee was still unable to attend due to ill health and sent a letter to his employer, along with a copy of the doctor’s note indicating his inability to attend.
Suspecting that this may be a strategy to avoid disciplinary action, the employer proceeded with the hearing in the employee’s absence and found him guilty.
The Court of Appeal held that it could not fault the Industrial Court’s finding that the employee’s dismissal was procedurally unfair, as there was no clear evidence that the employee was not unwell and that the doctor’s note was untruthful.
The Court of Appeal in Disang, reviewing the circumstances in Nyepetsi, stated:
“In the case cited, sick notes fell within a space of one month, and there was no indication of a pattern in the conduct of the employee to evade the conduct of a fair disciplinary hearing.”
Conclusion
The above decisions suggest that where an employee is absent due to illness, the safer course for the employer may be to postpone the hearing within reason. If the employee continues to submit sick notes that align suspiciously with hearing dates or shows a pattern of behaviour suggesting an attempt to evade the process, the employer may then proceed with the hearing in the employee’s absence.
What is within reason ultimately depends on the facts and circumstances of the case, and the outcome will largely depend on the court’s attitude towards the specific evidence presented—hence the variability in the judicial decisions above.
Notwithstanding the fact that the cases do not provide a definitive answer, the following key takeaways offer practical guidance to employers navigating this complex disciplinary scenario:
Repeated submission of sick notes that coincide with scheduled disciplinary hearings, especially when combined with other delaying tactics, may indicate an attempt to frustrate the process (Mangenela, Disang, Mosadi). In such cases, the employer can justifiably proceed with the hearing in the employee’s absence.
Sick notes should be considered in light of the employee’s overall conduct during the disciplinary process. If the employee’s behaviour—such as repeated requests for postponements or unwarranted delays—suggests a deliberate strategy to avoid the hearing, the employer may proceed after reasonable postponements (Disang).
Employers must always act reasonably and fairly. If there is no clear pattern of abuse or sufficient evidence to doubt the authenticity of the sick notes, proceeding without the employee could result in a finding of procedural unfairness (Nyepetsi).
Employers are not required to postpone hearings indefinitely. After a reasonable number of postponements and clear signs of bad faith, the employer may proceed with the hearing (Mangenela, Disang).
Courts look at the employee’s entire behaviour from the time they become aware of the charges, including previous reluctance to engage or failure to provide timely explanations for absences (Mosadi, Disang).
Bigamy is one of those crimes we think doesn’t happen anymore, like challenging your rival to a duel or cheque fraud. But it appears that it still has a place in modern society.
Bigamy is the crime of going through a marriage ceremony with a second person while still being in a marriage that has not been dissolved by death, divorce, or annulment. It is provided for in our Penal Code, along with marriage with dishonest or fraudulent intent, which also carries a 5-year sentence. Additionally, signing a false marriage certificate can result in a 7-year sentence.
The effect of bigamy is that the second “marriage” is void.
As with all crimes, there must be the appropriate mens rea or criminal intent. The mens rea is undoubtedly present when the bigamist knows that he or she is still married, as is most often the case—separation from your spouse is not enough to allow a second marriage.
The Indian Court dealt with a landmark case involving a woman married to a man who converted to another religion. He had been married to his wife for a long period, and they had children from their marriage. However, he entered into a second marriage. The Court ruled that the husband had converted to avoid prosecution under bigamy and had no faith in his new religion. The second “marriage” was found to be fraudulent, and the first marriage could not be dissolved simply because the husband converted to a different religion.
Bigamy can, and should be, dealt with by criminal law, but there are also remedies in civil law.
The Natal High Court found that where a man purported to enter into a second civil marriage while his first marriage was still valid, the second marriage was bigamous and unlawful. In that case, the second wife was unaware of the first marriage and had a claim for damages against the husband. However, she had no claim for spousal support.
A duped second “wife” may apply for the marriage to be declared null and void and may claim damages for impairment of dignity, insult, and degradation, as may the wronged first wife.
However, if you know a person to be already married and receive a proposal of marriage from them, don’t expect to be able to make a claim for breach of promise to marry!
In our own courts, the reported case of Ntshekang v Pule dealt with the position of the law in regard to customary law. It was found that “A party married according to civil rights commits bigamy if he or she marries again before divorcing the spouse in the first marriage. Similarly, a party married according to customary law commits bigamy if he or she contracts a civil rights marriage with a third party. The only time a party married according to customary law may contract a civil rights marriage is if he or she marries the spouse already married to him or her according to customary law before a second customary marriage is contracted by the husband with a third party.”
At Armstrongs, we have very recently dealt with two cases of bigamy—both instances committed by husbands. In the first, the husband from Botswana was married under civil law. The marriage turned sour, but instead of seeking a divorce, he simply married his new paramour in a neighboring country, swearing on oath that there was no impediment to the second marriage. Because the offense was not committed in Botswana, our neighbors’ authorities are dealing with it.
In the second case, the husband had been married for many years following a civil ceremony in the United Kingdom and is still married. He and his wife have two adult children. The wife quite by chance discovered a marriage certificate from a marriage officer in Botswana and a video of the wedding. The husband is shown in the video swearing that he had never been married before and that there was no impediment to his marriage to his very young bride, whom he apparently met on a dating site.
We obtained an order ring-fencing the husband’s considerable assets in Botswana pending the wife’s divorce action in the United Kingdom and her claim for her half-share of the assets.
The lessons to be learned—unless you want five years in prison and two mothers-in-law—dissolve your first marriage first, and be careful of whom you meet on a dating site.
Statutory management is a regulatory intervention mechanism used by the Non-Bank Financial Institutions Regulatory Authority (the Regulator) in the financial services sector. This regime is particularly relevant for non-bank financial institutions (NBFIs) that are in distress or facing significant financial instability.
Under this regime, a Statutory Manager is appointed to take control of an NBFI to protect the interests of depositors, shareholders, creditors, and the broader financial system.
The financial services legal framework that governs the statutory management regime is the Non-Bank Financial Institutions Regulatory Act, 2023, as well as other sector-specific legislation, such as the Securities Act (which regulates the conducting of securities business in Botswana, i.e., asset managers), the Insurance Industry Act (which regulates the conducting of insurance business in Botswana, i.e., insurers and reinsurers), and the Retirement Funds Act.
What is an NBFI?
The Non-Bank Financial Institutions Regulatory Act, 2023, defines a “nonbank financial institution” as, amongst others, the following persons operating an institution of:
an asset manager;
a retirement fund;
an administrator of a retirement fund;
a collective investment undertaking;
an insurance agent;
an insurance broker;
an insurer;
an investment adviser;
a securities broker or dealer;
a securities exchange;
a medical aid fund;
a microlender;
a pawnshop; and
a virtual asset service provider.
Appointment of a Statutory Manager
A Statutory Manager may be appointed in two ways. Firstly, by the Regulator appointing the Statutory Manager directly. However, upon the direct appointment of a Statutory Manager by the Regulator, the Regulator must then apply to the High Court within five days for an order confirming the appointment of the Statutory Manager.
Secondly, by way of an application to the High Court. This can be done by either the Regulator or an interested party (i.e. a creditor), provided that they obtain the written consent of the Regulator before they apply for statutory management at the High Court.
The basis for appointing a Statutory Manager of an NBFI in terms of the financial services legal framework is if the NBFI is likely:
to not be complying with any financial services law; or
to be in an unsound financial position; or
to be involved in a financial crime.
In the event that the Regulator elects to appoint a Statutory Manager directly, it may also do so on the basis that it is necessary to protect the:
interests of a client of the NBFI;
stability, fairness, efficiency, and orderliness of the financial system; or
safety and soundness of the NBFI.
Powers and Duties of a Statutory Manager
The Statutory Manager’s primary duty is to manage the affairs of the NBFI to the exclusion of its directors and act in the best interests of the institution’s stakeholders and the public.
The Statutory Manager has broad powers in managing the affairs of an NBFI, which include, amongst other things, taking control of assets, managing operations, restructuring the institution, and making decisions to stabilize and restore its financial health.
The Statutory Manager also has the power to repudiate contracts deemed detrimental to the interests of any client of the NBFI. This means that the Statutory Manager can refuse to fulfill contractual obligations that the NBFI has, thereby rejecting or renouncing the contract.
It must be noted that the powers of a Statutory Manager are not unfettered, as they cannot make unilateral decisions on the business of the NBFI that would require shareholders’ approval. Furthermore, the Statutory Manager is also subject to complying with the Regulator’s directions during the statutory management of the NBFI.
The Statutory Manager shall, as soon as practicable after appointment and investigating the affairs of the NBFI, advise and report to the Regulator on procedures to ensure the NBFI is compliant with financial services laws, financially sound, and free from financial crimes.
If it is not practicable to use the prescribed procedures to ensure compliance, the Statutory Manager may:
Direct that the business of the NBFI be transferred to another person, specifying the terms of such transfer; or
Recommend to the Regulator that the NBFI be wound up or placed under liquidation.
Remuneration of a Statutory Manager/Who pays the Statutory Manager?
The Statutory Manager is entitled to receive remuneration from the business of the NBFI as ordered by the Court during the period of statutory management.
Termination of Statutory Management
The office of the Statutory Manager terminates when:
the Regulator is satisfied that the purpose for the appointment no longer exists; or
the Regulator applies to the High Court for the NBFI to be wound up on the basis of insolvency and the unlikelihood of returning to solvency within a reasonable time.
Is Statutory Management the same as Judicial Management?
Although statutory management and judicial management are similar in that a manager is appointed to manage the affairs of the entity, they are not the same. This is because judicial management:
generally refers to situations where a company is unable to pay its debts due to mismanagement or some other cause, in which a Judicial Manager is appointed with the objective of rescuing the company and returning it to profitability, and thereafter returning the company to its directors;
is a process where the Judicial Manager is appointed in terms of Part XXVI of the Companies Act and therefore falls within the jurisdiction of the Master of the High Court, unlike the Statutory Manager, who is appointed in terms of the abovementioned financial services laws and is answerable to the Regulator;
applies to all companies whilst the statutory management applies only to NBFIs; and
is made by way of a petition to the High Court by the company itself, a creditor, or a member to the High Court.
Historical Use of Statutory Management
The Courts have recently confirmed the appointment of Statutory Managers of NBFIs by the Regulator in cases such as those set out below.
A notable case involved Capital Management Botswana (Proprietary) Limited (“CMB”), a licensed asset manager at the time, being placed under statutory management by the Regulator on the basis that it discovered that CMB was in breach of the provisions of the Securities Act, in particular, the failure to submit audited financials.
Another notable case involved a company called Bluthorn Fund Managers (Proprietary) Limited (“Bluthorn”), which was licensed as a collective investment undertaking. It was also placed under statutory management by the Regulator on the basis that there were various breaches of the provisions of the Collective Investment Undertakings Act.
Conclusion
It is therefore important for directors and managers of NBFIs to be aware of the possible steps that the Regulator may take to ensure compliance with financial services laws, in particular, statutory management. Understanding this mechanism helps in better governance and adherence to financial services laws, which ultimately safeguards the interests of clients, maintains the stability of the financial system, and upholds the integrity of the NBFI itself.
Directors should proactively ensure that their institutions operate within the legal framework to avoid the need for such interventions. By prioritizing financial soundness, transparency, and regulatory compliance, NBFIs can contribute positively to the broader financial ecosystem and prevent the adverse consequences of statutory management.
In the age of information technology, where the lifeline of a business is storing information in servers and the cloud, hackers are now increasingly accessing millions of data belonging to businesses and demanding ransom payments. This is now a growing trend in Botswana, with a few businesses having been on the receiving end of extortion by hackers.
We hope that will soon be combated as the Botswana business landscape braces for a new dawn once the Data Protection Act of Botswana (“DPA”), which was passed into law on 15 October 2021, becomes fully in force after 14 October 2024.
The DPA’s main objective is to ensure that personal data is processed in a lawful manner. In this regard, personal data is defined as information relating to an identified or identifiable individual, which can be identified directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural, or social identity.
The DPA also seeks to protect individuals against unlawful processing of their sensitive personal data. This includes personal data that reveals, among other things, an individual’s racial or ethnic origin, physical or mental health, membership of a trade union, personal financial information, political opinions, genetic data, biometric data, and personal data of minors, among others.
With this in mind, businesses, especially those which deal with a great deal of people’s information, have a few months to ensure that they will be compliant with the DPA.
The big question, however, is how can a business accomplish this. First of all, you need an experienced team of lawyers with commanding experience in dealing with data protection law solutions and also to elect an internal resource which will lead the implementation project for your business.
At a very high level, the process essentially comprises:
The starting point is a risk assessment exercise which will be conducted on the business, particularly the business activities that pertain to the processing of personal data. This includes assessing information provided from completed data protection information gathering surveys and related documentation. This is typically called the gap analysis stage;
The purpose is to determine existing compliance levels and risks in regard to non-compliance in the business operations. The results of the process are captured in a report that breaks down the business’s level of compliance as it relates to the 8 principles of the data lifecycle;
Preparation of all relevant data processing policies (internal and external privacy policies, records retention and destruction policies, cookie policy, information security policies), procedures (privacy impact assessment procedures, data breach response procedure), agreements (data processing agreements, cross-border data transfer agreements), privacy forms and templates, and other compliance documentation required to embed DPA compliance in the business, and assistance with the setup of relevant governance forums and procedures/terms of reference for various governance structures to manage ongoing data protection compliance;
Addressing and managing all key compliance and legal risks to the business with the implementation and operationalization of the DPA; and
Setting up an information repository along with preparation of an overall compliance manual and compliance documentation and procedures to manage ongoing DPA compliance within the business, including conducting ongoing data privacy impact assessments.
To this end, we urge your business (especially if you handle large amounts of personal data) to do the needful to become exemplary in data protection compliance.
For more information on the above, please contact Mr. Simon Bathusi at simon@armstrongs.bw or call +267 395 3481.
On the 11th of July 2023, the Court of Appeal presided over an appeal brought by Debswana Diamond Company Limited (“Debswana”) against Infotrac (Pty) Ltd (“Infotrac”). The decision sought to be appealed was in respect of a High Court decision, in which the High Court had granted judgment in favour of Infotrac in the sum of One Hundred and Ten Million Pula (BWP110,000,000.00) against Debswana.
On the 31st July 2023, prior to the judgment being delivered on the substantive appeal, Infotrac filed an application, on urgency, seeking the recusal of the judges who had presided over the appeal citing a number of reasons that, it alleged, led to a ‘reasonable apprehension of bias’.
On the 20th of September 2023, the Court of Appeal delivered its Ruling in respect of the recusal application and, thereafter, delivered judgment on the substantive appeal.
The Application for Recusal
The Court of Appeal has held that the law on the recusal of members of the judiciary in Botswana is now settled. In brief, the court has reiterated the position that actual bias need not be proven, and that a mere apprehension of bias is sufficient. The Court, further, reiterated that the test for apprehended bias is an objective test and that the onus of establishing the apprehended bias rests upon the party alleging it.
In considering whether the application for recusal of the panel of Judges should be granted or not, the Court of Appeal applied the so-called “double reasonableness test” as more fully set out below.
The Court of Appeal cited and relied on the cases of GAOTSALOE v DEBSWANA DIAMOND COMPANY LIMITED [2019] 1 BLR 109, 110, 127 and 133 (CA); MOGALE v MOTOR VEHICLE ACCIDENT FUND {2016] 1 BLR 458 (CA); President of the REPUBLIC OF SOUTH AFRICA v SARFU 1999(4) SA 147 (CC), and held as follows:
“In determining whether the onus of establishing apprehended bias has been discharged, a court starts with a presumption of impartiality, namely that judges will carry out their oath of office. This presumption can be displaced by cogent evidence that passes the ‘double reasonability’ test, or a two-fold objective element: (i) the person considering the alleged bias must be reasonable and (ii) the apprehension of bias itself must be reasonable in the circumstances of the case.”
The Court held that the first requirement on the principles applicable to the recusal of judicial officers is that the alleged perception of reasonable bias must be determined from the objective perspective of a reasonable person, or an informed observer, and not from the subjective perspective of the party asking for recusal. The apprehension of bias must itself also be reasonable.
Infotrac’s initial complaint was that its Attorney had been harshly treated by way of questions posed and comments made during the hearing of the Appeal by one of the members of the Bench. Further complaints were subsequently made by Infotrac. The alleged harsh treatment of Infotrac’s Attorney, it was alleged, gave rise to a reasonable apprehension of bias on the part of the Judge in question.
In dealing with the issue, Judge Froneman stated:
“Any informed observer of the Botswana Court of Appeal would know that vigorous and sometimes robust debate and interaction between the bench and counsel is the very stuff of an appeal hearing, as is the case in many other jurisdictions.”
The Court of Appeal (in considering all relevant facts and applicable principles) came to the conclusion that an informed observer would not have considered the questions posed nor comments made as indicating any potential bias on the part of the Judge(s).
The Court of Appeal also dealt with the other complaints raised by Infotrac’s Managing Director and held that a reasonable person would not have attempted to influence the outcome of a pending appeal, especially by approaching other institutions (as Infotrac’s Managing Director had) other than the Court itself in an effort to thwart the outcome of an appeal.
The application for recusal was accordingly dismissed on the basis that it was without merit and accordingly dismissed, with costs.
