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The Mediation Framework in Botswana's Trade Disputes Act: A Unique Approach to Dispute Resolution
Published online by Cambridge University Press: 06 October 2023
Abstract
Botswana's Trade Disputes Act was enacted to provide for a settlement of trade disputes by the Commissioner of Labour, mediators and arbitrators and for the establishment of the Industrial Court as a court of law and equity. Mediators therefore play a critical role in the resolution of trade disputes within Botswana's labour law framework, and while their role is facilitative, their contribution to the trajectory of resolving labour disputes is significant. This article analyses the form of mediation envisaged under the act, and the mediator's role and powers. It further considers circumstances under and the extent to which the Industrial Court may intervene in the decisions of mediators.
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- Research Article
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- Copyright
- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of SOAS University of London
Footnotes
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LLD, LLM (North-West University, South Africa), LLB (University of Botswana). The author expresses gratitude to the African Studies Centre at Michigan State University for funding this research under the auspices of the Alliance for African Partnerships (African Futures) Postdoctoral Programme.
References
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3 Wiese, T Alternative Dispute Resolution in South Africa (2016, Juta)Google Scholar at 47.
4 [2020] All Bots 533 (IC), para 11.
5 Hughes “Mandatory mediation”, above at note 2 at 165.
6 See Order 42 Rule (2)(4)(a).
7 Dingake, OBK Collective Labour Law in Botswana (2008, Bay Publishing)Google Scholar at 124.
8 Wiese Alternative Dispute Resolution, above at note 3 at 2.
9 Hughes “Mandatory mediation”, above at note 2 at 163.
10 Wiese Alternative Dispute Resolution, above at note 3 at 2.
11 Sec 3(2)(a).
12 See also Frenkel, DN and Stark, JH “Improving lawyers’ judgment: Is mediation training de-biasing?” (2015) Harvard Negotiation Law Review 1Google Scholar at 8.
13 Sec 4.
14 Sec 5(5)(b).
15 Secs 7(2), 35−36 and 42−43.
16 Sentle v Botswana Agricultural Marketing Board [2021] All Bots 278 (IC), para 9.
17 Sec 7(16).
18 Douglas and Maier “Bringing the parties apart”, above at note 2 at 35.
19 Ramooki v Botswana Meat Commission [2019] All Bots 177 (IC), para 10.
20 Id, paras 11–12.
21 Attorney General v Tumaeletse [2020] All Bots 2 (CA), para 12.
22 Sec 7(8) imposes a fine of BWP 2,000, imprisonment for 12 months or both.
23 Weckstein, DT “Alternative dispute resolution symposium issue: In praise of party empowerment – and of mediator activism” (1997) 33 Willamette Law Review 501Google Scholar at 510.
24 Sec 3(4).
25 Sec 3(5).
26 Wiese Alternative Dispute Resolution, above at note 3 at 48.
27 Tsumake, above at note 4, para 12.
28 Wiese Alternative Dispute Resolution, above at note 3 at 48.
29 McDermott, P and Obar, R “‘What's going on’ in mediation: An empirical analysis of a mediator's style on party satisfaction and monetary benefit” (2004) 9 Harvard Negotiation Law Review 75Google Scholar at 76.
30 Weckstein “Alternative dispute resolution”, above at note 23 at 510.
31 Wiese Alternative Dispute Resolution, above at note 3 at 49.
32 P McDermott and R Obar “‘What's going on’”, above at note 29 at 76.
33 Wiese Alternative Dispute Resolution, above at note 3 at 49; Spencer, D Essential Dispute Resolution (2nd ed, 2005, Cavendish)CrossRefGoogle Scholar.
34 Wiese, ibid.
35 See Bush, RA and Folger, JP The Promise of Mediation: The Transformative Approach to Conflict (rev ed, 2005, Wiley)Google Scholar at 41–84.
36 Wiese Alternative Dispute Resolution, above at note 3 at 49; Aiwazian, A “Transformative mediation: Empowering the oppressed voices of a multicultural city to foster strong democracy” (2008) 11 Scholar 31Google Scholar. Transformative mediation is mentioned in this article to bring its existence to the consciousness of the reader. It is not in popular use in labour and employment law as highlighted, hence an analysis of its applicability to mediation under the TDA is intentionally omitted. This notwithstanding, transformative mediation has been successfully used by the United States Postal Services to resolve racial discrimination class-action disputes with its employees. See in this regard Welsh, NA “Stepping back through the looking glass: Real conversations with real disputants about institutionalized mediation and its value” (2004) 19 Ohio State Journal on Dispute Resolution 573Google Scholar at 591–93.
37 Sec 7(9)(g).
38 See secs 6(5)(a) and 43.
39 Sec 7(4).
40 Sec 2 defines mediation as including facilitation, conducting a fact-finding exercise and the making of an advisory award.
41 Sec 6(1).
42 Sec 6(2).
43 Ntuane v Standard Chartered Bank [2015] All Bots 109 (IC), para 3; Ramotswa v Tamu Construction [2020] All Bots 318 (IC), paras 2–3.
44 Above at note 19, para 11.
45 [2019] All Bots 26 (IC).
46 [2017] All Bots 234 (IC).
47 [2015] All Bots 94 (IC).
48 [2015] All Bots 51 (IC). See further Modise v Botswana Power Corporation [2019] All Bots IC, paras 21–23.
49 Rule 66(2).
50 [2017] All Bots 47 (IC).
51 Modise, above at note 48, paras 12–19.
52 [2017] All Bots 263 (IC).
53 Sec 95(1) of the Constitution of Botswana provides that “There shall be for Botswana a High Court which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.” See further Botswana Railways’ Organisation v Setsogo and Others [1996] BLR 763 (CA) at 802–803.
54 Secs 14(1) and (2) TDA. See further Khoemacau Copper Mining (Pty) Ltd v Steward Wallace [2019] All Bots 83 (CA); Phuthego and Others v Barclays Bank Botswana Limited Case No CACGB-013-16.
55 Urgent applications to the Court under sec 23(3) are exceptions.
56 Secs 7(3), (17) and (18).
57 See further Frimpong, K “Failure to mediate and failure to settle: A subtle distinction requiring a cautious judicial attention” (2006) University of Botswana Law Journal 113Google Scholar at 117–20.
58 Ibid.
59 Ponatshego v Kgalagadi Breweries Limited [2017] All Bots 15. See also secs 7(1) and (2) TDA.
60 Sec 7(2). See further Morapedi v BBS Limited [2020] All Bots 469 (IC).
61 Above at note 59.
62 Above at note 60 at 6–7.
63 A default award issued pursuant to sec 7(9) shall be confirmed or varied by the commissioner after the expiry of 30 days. Such a default award shall have the same force and effect as a judgment or order of the Industrial Court. See in this regard sec 7(10) as read with secs 7(11), (12) and (14).
64 Sec 7(12).
65 Similarly, the referring party can apply to the mediator for a reversal of the dismissal. See sec 7(12).
66 Sec 7(15).
67 See Choices Liquid World v Dirane [2020] All Bots 384 (IC); Isaia v Toboka [2020] All Bots 2014 (IC); Household Brands (Pty) v Mochudi [2018] All Bots 45 (IC).
68 Sec 7(14).
69 Aarone v Your Friend (Pty) Ltd t/a Gabz FM and Another [2019] 2 BLR 311 (IC).
70 See Household Brands (Pty), above at note 67.
71 Sec 7(9)(f)(g).
72 See also sec 7(15), which gives an option to appeal to the Industrial Court.
73 Case No IC 311/14 (unreported), para 25.
74 See further Ramooki, above at note 19, para 9.
75 Above at note 48.
76 [2010] All Bots 50 (CA).