- Masisi terminated Mathambo’s DCEC contract without notice
- Cut his salary, stripped him of benefits
- Gov’t could end up paying Mathambo millions
- “I am not at war with Masisi” – Mathambo
The state has lost its bid to block former Director General of the Directorate on Corruption and Economic Crimes (DCEC), Joseph Mathambo, from suing President Mokgweetsi Masisi for unfairly terminating his contract following his secondment from the Botswana Defence Force (BDF) in April 2019, The Botswana Gazette has established.
Justice Michael Leburu on Monday ruled that Mathambo’s application to correct the dates in his founding affidavit be granted. The state had already filed a notice of opposition to Mathambo’s main application in which he demanded the court to set aside Masisi’s decision to remove him from his then position as DCEC director general to the rank of Brigadier on the terms and conditions of service of the rank.
The state argued that this was because “the main application for review was brought outside the requisite four months period, without leave of court as as envisaged by Order 61 Rule 8 of the Rules of the High Court”.
Represented by Dick Bayford of Bayford & Associates, Mathambo realised that he had made a patent error in his founding affidavit filed in the review application regarding the date he received the letter of his termination from the DCEC. “The error is that he did not receive the letter on the 24th August 2020, as averred in his founding affidavit. The correct date, according to him, is 26th August 2020,” states the court papers.
Despite former Permanent Secretary to the President (PSP) Elias Magosi acknowledging, on record, that indeed Mathambo was handed the letter on 26 August 2020 and not on 24 August 2020, the Attorney General refused to allow the correction because it was an “… incompetent and improper in that an affidavit is not a pleading, but sworn evidence, which is incapable of amendment.”
In his ruling, Leburu noted that Mathambo’s application was filed in good time, “on 24th December; reckoned from 27th August 2020 and excluded therein the court vacation commencing 15th December 2020. The order 33, application is thus pliable and liable to be jettisoned.”
INSIDE MATHAMBO’S MAIN APPLICATION
Mathambo is demanding that he be paid the difference between the salary and benefits he currently draws as Brigadier in the military and those he could have continued to earn had he continued in his position as head of the DCEC for the duration of of the period of five years effective 2nd April 2019. He is also seeking enjoyment of all allowances and benefits he would have had during the same course. Immediately after his contract was terminated, his salary was cut and was stripped of most of his benefits.
Records reveal that Mathambo’s position attracted a salary scale of F0, which comes to P655, 656. 00 per annum. Other benefits that he enjoyed included provision of a government vehicle to drop and pick him up between his residence and office, free government housing or housing allowance at 15 percent of his basic salary, commuted overtime allowance at 15 percent of his basic salary, special duty allowance at 15 percent of basic salary, 24-hour security guard services at his home, a security alarm system at home, a cell phone and fixed telephone line subsidy at 90 percent of the bill paid by the government, as well as a 90 percent subsidy on bills of the Internet at his place of residence. Mathambo’s contract also stated that he would continue to receive full benefits from the BDF during the term of his secondment to DCEC.
His contract further stipulated that the government would give him a three-month long notice prior to terminating his secondment, which was not the case. He pointed out that as it is practice in government that when an officer is transferred from one office to another, their emoluments (wages) the officer retains the higher emoluments despite assumption of the latter office. He made note of previous DCEC director generals who benefited from the same practice.
“In this application, I do not seek to impugn the President’s power to remove me from the office of Director General of DCEC and I aver that the President had the requisite power to make the decision to remove me from the said position,” Mathambo deposed. “My bone of contention is that the residual terms and conditions of the underlying contract of employment which I entered into with the government remain of full force and effect and ought to be honoured.”
The matter will return to court for a status hearing on 15 November 2021.