Botswana Mine Workers Union (BMWU) says it has had occasion to appreciate the High Court judgement of Justice Abednego Tafa delivered on the 9th June 2022 in a case involving Infotrac Pty Ltd vs Debswana Diamond Company. The union says the court has essentially confirmed the violation of Debswana employees constitutional right to privacy at paragraph 48 and 83 of its ruling. The court held that Debswana has failed to disprove the evidence of infotrac that, Debswana procured spying equipment and enlisted its services to pry on the on activities of Union officials without their consent.
BMWU, which views that privacy is a constitutionally protected right, says it is not absolute; however, its limitation is subject to the law. “The collective agreement concluded between the Union and Debswana, places an obligation on each party to respect another’s right to privacy. This is to ensure harmonious industrial relations,” the union says adding that it is clear that the spying of workers was not pursuant to a court order, therefore Debswana’s conduct was wrongful. “The company also failed to adduce evidence refuting Infotrac’s allegations.” As the matter stands, BMWU feels it had a legitimate expectation to privacy, as a partner and collective bargaining agent of Debswana Diamond Company employees. “The Union, its officials and members dignity has been seriously impaired by Debswana’s unsavory and voyeur like behavior. It is not clear how much data has been collected on the Union by the company and for how long.”
According to section 29 & 30 of the Data Protection Act of 2018, any person who has been the subject of data collection, knowingly or otherwise, has the right to access that information and/or request the data controller to furnish them with such information. This includes information collected by a third party on behalf of the data controller, in this instance Debswana after engaging Infotrac. “It is not clear what the data collected from the Union was used for and the intention of Debswana management upon acquisition of it,” writes the union in a press release which feels that the effects of this judgment are far reaching at the global level.
In its view, the ruling impugns the corporate governance of Debswana, right from the appointment of its board, executive management, contractors and especially the character and ethics of its leadership. “Debswana Diamond Company is a state-owned enterprise (SOE), which trades in a commodity that is not only sensitive but contributes significantly to the economy of Botswana. The public has great interests in the dealings of this company.”
Further, BMWU says transgressions of this nature have the potential to tarnish the image of “our diamonds internationally and the effects can be catastrophic to our economy”. Botswana is the current Chair of the Kimberley Process and it is currently lobbying to host its Secretariat, all hopes to realize those ambitions will be greatly undermined by the outcome of this case.
As a way forward the Union held a high-level meeting with Debswana Ex-Co team on the 14th June 2022. The objective of the meeting was to brief the Union leadership on the position of the company, including its envisaged appeal against the court judgment. The Union advised the company of the following issues:
- Concerns over alleged maladministration and corruption by past Debswana senior management and unions previous plea for the Infotrac matter to be settled out of court.
- Forensic audit to be conducted on key company operational processes; procurement, tendering and recruitment.
- Confirmation of spying equipment and where in the Company’s operation they have been placed or mounted.
In conclusion the Union intends:
- To notify Debswana management through its collective bargaining structures (JNCC) of its intention to sue Debswana Diamond Company for the violation of its members constitutional right to privacy and the impairment of their dignity.
- Assert its personality rights under section 5 of the Data Protection Act by invoking the protection of the Data and Information Protection Commissioner.
- Apply as a friend of the Court (amicus) in the Debswana vs Infotrac appeal case.