- – Union challenges the validity of the Council’s constitution
- – Wants the appointment of Motsamai and Rari declared invalid
The National Amalgamated Local and Central Government & Parastatal Workers Union (Manual Workers Union) has dragged the Public Service Bargaining Council (PSBC) to court, challenging the validity of the Council’s constitution, describing it as null and void.
The case was heard at the Maun High Court this week where both the applicant and respondent’s attorneys delivered their heads of argument before Judge, Justice Professor Bugalo Maripe. The much-anticipated judgement on the matter is expected to be delivered on October 30th, 2026.
When submitting his heads of argument the applicant’s attorney, Sifelani Thapelo argued that the present constitution of the PSBC, is automatically null and void from the start. He said that the Council cannot legally function, and any actions taken under the present constitution are invalid.
He highlighted the need for an entirely new constitution that aligns with the statute, and is capable of being implemented with compliance to its own terms. Thapelo noted that the Applicant has made out a case for the relief sought, and that such relief must be granted with costs.
Thapelo argued that the purported meeting of the 30th January 2026 held by the parties is invalid and a nullity and all decisions and resolutions adopted at that meeting, including the appointments of Andrew Motsamai as Secretary and Tobokani Rari as Deputy Secretary respectively, of the PSBC, are invalid and null and void.
He added that Motsamai and Rari are not entitled to act as representatives of the Council and are hereby interdicted, restrained and or prevented from acting in a representative capacity for the Council.
The Respondent’s Attorney, Kabo Mokotedi argued that the Applicant has no legal right or capacity to seek compliance and observance to the Constitution of the Public Service Bargaining Council.
He said that the PSBC is a voluntary association and its Constitution creates a contract between members of the association and between the association and its members only, prospective members have no rights and obligations under the Constitution of a voluntary association.
“Resolutions of the PSBC are not binding to non-members such as the Applicant and the Applicant enjoys equal bargaining rights such as trade unions which are members of the PSBC and the Applicant is not prejudiced in any manner by the alleged non-adherence to the Constitution of the PSBC,” he said.
Mokotedi indicated that the Applicant has failed to exhaust statutory and administrative remedies under the Public Service Act and such failure is fatal to relief soughts. He noted that the Applicant has failed to approach the Commissioner of Labour in terms of Section 51 (5) and (6) of the Public Service Act for any grievance it has in relation to the Council.
According to him, the Manual Workers Union has not demonstrated that it sought redress through the institutional mechanisms governing the Council established under the Act. He stressed that the Applicant has not demonstrated that such remedies were unavailable and ineffective.
“The Applicant has not demonstrated any exceptional circumstances justifying a departure from the exhaustion doctrine. Instead, the Applicant elected to bypass the available structures entirely and approach this Court directly,” he said.
Mokotedi further argued that the Applicant seeks to convert the Court into a forum of first instance in relation to disputes which ought first to have been addressed within the institutional framework established for that purpose, citing that such an approach is inconsistent and undermines the autonomy of mechanism created by law.
He stated that the Application invites premature judicial intervention which the Appellate court has repeatedly warned against.
“We submit that the Applicant was obliged first to exhaust the remedies available to it. Having failed to do so, this application is premature and incompetent. The Respondents accordingly submit that the application falls to be dismissed on this ground alone,” he said.
