Attorneys representing Basubiya Paramount Chief Munitenge Lawrence Liswani Sinvula III have dismissed the Attorney General’s grounds of appeal as baseless and without merit. The state is currently challenging a Maun High Court judgment that ruled in favour of the traditional leader regarding his official salary and remuneration packages.
The Chief’s legal counsel, Morupi Mbeha and Mishingo Jeremia, have since drafted a formal notice of intention to oppose the state’s appeal.
In his June 26th ruling, Judge Godfrey Nthomiwa determined that Sinvula is legally entitled to be remunerated at the E2 salary scale, retroactively effective from February 2023.
The judge ordered the state to pay all outstanding salary arrears, representing the financial difference between the D2 and E2 salary scales, within 90 days. Furthermore, the state was ordered to pay the litigation costs of Sinvula III’s application on an ordinary court scale.
The Attorney General is now petitioning the Court of Appeal, arguing that the Maun High Court misdirected itself in finding that the application centered on the legal interpretation of Sinvula’s remuneration following his recognition as Kgosi of Basubiya under section 6(2) of The Bogosi Act.
“The court erred in positing that a legitimate expectation arose once the applicant was recognised as Kgosi in terms of section 6 (2). That was a serious misdirection as a Kgosi who is at D2 can also be designated in terms of section 6 (2). A lot of Dikgosi that have been previously designated under section 6 (2) were coincidentally at E2 but that does not create an entitlement that every designation under section 6 (2) will earn at E2 salary scale.”
The Attorney General contends that the High Court conflated recognition with designation, failing to appreciate that section 6(2) applies to entirely different categories of Dikgosi: a Kgosi of a tribe as opposed to a Kgosi of a tribal community.
Government further argues that the court erred in both fact and law by characterising the matter brought before it as an application for declaratory relief rather than a disguised application for judicial review.
“The respondent had been designated to succeed his father who was at D2 scale and queried the salary scale. The respondent’s request was refused by way of letter dated 17th December 2020 and he ought to have reviewed the said refusal.”
The state further posits that the court misdirected itself by holding that Sinvula was initially appointed in 2020 as a Kgosi (sub-chief) of Kavimba before being recognised as Kgosi of Basubiya under section 6(2) in 2023. The state claims the provision merely recognized him as the designated successor to his predecessor, which must strictly follow the specified section.
The Attorney General is urging the Court of Appeal to overturn the High Court judgment, dismiss Sinvula’s original application with costs, and grant any alternative relief the bench deems just and appropriate.
However, in their answering notice, Sinvula’s lawyers counter that the state is legally bound by sworn admissions in its own High Court answering affidavit, which acknowledged their client was recognised and appointed as Kgosi of the Basubiya Tribe under section 6(2).
They further contend that the state is attempting to substitute an entirely different administrative decision on appeal to serve as the action that should have faced judicial review.
“The Appellant contends, for the first time, that the decision which ought to have been reviewed is a letter dated 17 December 2020. The court a quo was never invited to determine, and did not determine, whether that letter was a reviewable decision, and no leave to raise that matter on appeal has been sought or granted.”
Regarding the payment dispute, the attorneys maintain that the state failed to produce any lawful or identifiable administrative decision fixing their client’s salary at the lower D2 scale post-recognition. They argue that treating him differently from other Dikgosi recognised under section 6(2) is highly arbitrary and violates constitutional principles of equality and rationality.
Mbeha and Mishingo Jeremia are praying that the appeal be dismissed with costs and that the initial judgment and final consequential orders of the High Court be upheld in their entirety.
