PEEPA’s Nasty Brawl Over Salaries
- Board revokes salary increments made by ex-chief executive Moumakwa
- Five staff members drag PEEPA to court for illegal reversal of salary increments
- PEEPA loses in court and awaits appeal judgement
- Court says PEEPA was wrong
- Board determined to undo everything Moumakwa did
Five key staff members at the Public Enterprises Evaluation and Privatisation Authority (PEEPA) have seen their salary increments and promotions that were effected about seven months ago cancelled and revoked in a classic case of collateral damage by a board that seems determined to undo everything done by PEEPA’s deposed Chief Executive Officer (CEO), Ezekiel Obakeng Moumakwa, The Botswana Gazette can reveal.
In July 2020, the Court of Appeal is expected to make a ruling in a case in which the PEEPA lost at the Industrial Court (Francistown) for making unlawful salary deductions on five of its staff members.
In April 2019, the former CEO of PEEPA, Ezekiel Obakeng Moumakwa, effected a performance-based salary increments in the favour of five staff members. The employees are Mothusi Mokoto, Mooketsi Kgosibodiba, Letshego Moeng, Mpho Seretse and Segomotso Matswiri. Before months of March and April, Mokoto was an Analyst, Kgosibodiba an Accounts Officer, Moeng a Portfolio Manager – Utilities and Transport, Seretse an Analyst while Matswiri was Portfolio Manager – Financial Sector.
Court documents reveal that during the months of March and April, Moumakwa wrote letters to the staff members informing them that their salaries had been increased. The ex-CEO wrote that he had personally reviewed the performance of each of the five staff members and that being pleased with it, had awarded them an increment. Documents reveal that some increments were quite considerable. One of the staff members got an increment from P30 449.08 to P45 193.76 per month. It emerges, Moumakwa at that time stated categorically in a letter to the board of directors dated 13 June 2019 that these were neither salary increments nor adjustments but performance-based increments. In the letter to the board, Moumakwa said that the effective date of these increments was the 1 April 2019 and emphasised that that the increments were not to be construed as “the inflationary salary adjustment pronounced and effected by the government from time to time”.
Further, it emerges that not only did Moumakwa increase their salaries but he also deployed and elevated some of the staff members. Seretse was deployed to the CEO’s office to provide it with executive support, business services and coordination while Moeng was elevated from salary band 4 to the higher band of 4A but retained his position. The employees accepted the increments. Their remuneration clauses and contracts changed by the end of April 2019.
For about seven months since April 2019 to October 2019, the staff members enjoyed the increased salaries. For these seven months, PEEPA never revoked, cancelled or amended the newly acquired remuneration benefits.
Moumakwa had his fair share of battles with the board of directors that was then chaired by Tiny Kgatlwane. On the 9 and 14 May 2019, PEEPA held a special board meeting where Moumakwa was requested to explain how and who had approved the salary increments for the five staff members.
Moumakwa replied through a letter dated 13 June 2019 in which he sought to explain that the increments were a reward for good performance. In the letter, he said they did not require any board approval, as wrongly opined by some of his colleagues. Further, he said once the salary structure was approved by the board, promotions, acting appointments, performance-based increments, temporary as well as new appointments, fall within the province and prerogative of the management. Further still, Moumakwa told the board that the performance-based increments and redeployments of officers and salary band elevations fell within the province of the CEO and did not require the board’s approval.
It emerges further that on 19 June 2019, the board, after receiving Moumakwa’s response and a forensic report, resolved to subject him to a disciplinary hearing. At the hearing on the 22 October 2019, Moumakwa was dismissed immediately.
Meanwhile, the five staff members were paid their salaries fully (with the increments) in October 2019, as had been the case in the previous six months. However, on October 2019, the PEEPA board had a meeting where it resolved to undo what Moumakwa had done, which led to revocation of the salary increments of the five members of staff and making them revert to their pre-April 2019 salaries and positions. The staff members were informed of the board’s decision on 15 November 2019. The board’s reasons were that the increments were not approved by the board.
Acting Chief Executive Officer at PEEPA, Ishmael Joseph, wrote to each of the five staffers on 22 November confirming the revocations. On 25 November, the five were paid their salaries without the increments granted to them by Moumakwa since April 2019. The redeployments and band elevations were also undone. In the decision taken by the board, the five staff members were never consulted, according to court papers. Aggrieved, they engaged Shathani Somolekae, attorney at Collins Chilisa Consultants.
On 2 November 2019, the Attorney demanded that PEEPA stop the cancellations of the increments and band elevations immediately. She argued that Moumakwa was well within his rights to effect increments and band elevations. Collins Chilisa Consultants demanded a written revocation by 29 November 2019.
However, on 5 December 2019, PEEPA’s lawyers responded by declining to provide the written revocation sought and rather invited the five employees to launch a review application in court, which they did.
The issue was argued before the Industrial Court sitting in Francistown. On 10 and 11 December, Justice Baruti ruled that as CEO then, Moumakwa was responsible for the day to day management of PEEPA, which includes overseeing the recruitment, training development, mentoring, motivation, retention and appraisal of the executive management and that pursuant to paragraph 9.1.2 of the Conditions of Employment, the duty of the former CEO was to review and assess management staff on a quarterly basis. Further, Justice Baruti said the five staff members had enjoyed the increments for seven months and that a revocation would cause an irreparable harm to their financial positions. Justice Baruti further ruled that Moumakwa had acted within his powers, save that he did not seek the board’s approval. “Secondly, he was granted the mandate of running the day to day operations of PEEPA. Increment of salaries cannot strictly be held to fall outside the former CEO’s mandate,” Justice Baruti ruled.
Further, the judge said while the former CEO might have sought the board’s approval, it was not for the five employees to peep behind the shoulders and check if the increments were rightfully approved. As a result, Justice Baruti ordered on 20 December for PEEPA to pay the five employees monies unlawfully deducted from their salaries.
However, PEEPA has no such intention and is contending that the deductions were lawful through its lawyers, Armstrong Attorneys, who have filed an appeal with the Court of Appeal. Collins Chilisa Consultants applied on behalf of their clients, also as a sequel to the 20 December ruling, an application that sought leave to execute the order granted on 20 December 2019, pending an appeal by PEEPA filed with the Court of Appeal.
The application was filed on the 27 January 2020. As result, a rule nisi was further granted by Justice Baruti to the five employees on 11 February 2020 at the Francistown Industrial Court pending the outcome of the appeal.
The case is expected to be heard again this week at the Court of Appeal.