Industrial court judge Diratsagae Molomo has reserved judgment to a date to be announced in a case in which Botswana Mine Workers Union (BMWU) has taken Majwe Mining Company to court over a contract termination agreement between the two parties regarding the separation package of the company’s workers.
In January this year, Debswana announced termination of the Majwe Mining contract that was worth over P15 billion. This raised concerns for the future of employees of Majwe whose contracts were to run for the next seven years.
In his founding affidavit, union leader Kitso Phiri wants the court to make a declaratory order that the agreement of the parties of 16 February 2021 to negotiate a separation should be declared binding. Phiri states that on 16 February 2021, the conclusion and agreement made by the parties, which is verified by minutes, was for the parties to put the dispute of information sharing on hold and negotiate a separation package.
However, Majwe Mining Joint Venture (Pty) Ltd (respondent), which is represented by Moemedi Tafa of Armstrong Attorneys, says at all times the parties understood that the Memorandum of Agreement between them had made it expressly clear that the issue of payment for separation packages was a consultative one and not a negotiable one.
Tafa argues that the acceptance and consideration of the proposal made by Botswana Mine Workers Union did not reduce such engagement to a negotiation and that it is for that particular reason that the respondent (Majwe Mining) adopted the position of the proposals and rejected others with a clear position that it would not be engaging further on those matters.
“The respondent contends that the consideration of the proposals by the applicant was not a negotiation exercise as intimated by the Memorandum of Agreement between the parties,” Tafa says.
However, he continues, the union has conveniently and disturbingly elected not to duly inform the court that prior to the referral to private arbitration on urgency, the parties had issued a joint statement of deadlock in terms of which the nature of the dispute between the parties was laid out.
In the joint statement, each party’s respective position on the dispute was identified and expanded on and the parties agreed that the issue as to whether or not the separation package was a consultative or negotiable one would be determined by arbitration and that such arbitration would be binding on both parties, Tafa told the court.
“The very purpose of proceeding to arbitration was to get a determination on the issue between the parties,” he averred. “It would be illogical and to a great extent absurd for parties to proceed to arbitration on a disputed issue (and) to disregard the outcome of the same.” This means the union has been disingenuous with the court, Tafa emphasised and then asked the court to dismiss the “allegation” that the Majwe Mining will be wound up if the matter proceeds in the ordinary course as baseless and totally speculative.
In any event, he pressed on, should the mining company be wound up, that would not deprive the union of its entitlement to seek redress before the courts. He charged that the union does not have any appreciation of principles of both employment and insolvency laws which would be applicable in such an event. Tafa asked the court for dismissal of the union’s claim with a punitive cost order on an attorney and own client scale.