The Court of Appeal has ordered former Botswana Tourism Organisation (BTO) Chief Executive Officer Keitumetse Setlang to pay legal costs after finding that her attempt to halt disciplinary proceedings against her amounted to an abuse of the court process.
In a ruling delivered by Justice of Appeal Goemekgabo Tebogo-Maruping, the court held that Setlang’s application to stay disciplinary proceedings was unnecessary, vexatious and brought without sufficient grounds for success.
The matter arose after Setlang withdrew her Court of Appeal application seeking an interdict to prevent BTO from proceeding with disciplinary action against her. Following the withdrawal, BTO sought costs, arguing that the application had been brought vexatiously.
BTO’s attorneys argued that the application was ill-conceived, brought under the wrong procedure and amounted to an attempt to circumvent disciplinary proceedings. They further submitted that Setlang had the benefit of experienced legal representation and should have been aware that the matter was procedurally defective.
The court agreed with submissions made on behalf of BTO that Setlang had improperly approached the Court of Appeal after the Industrial Court had already struck out her urgent application and reserved its reasons for a later date.
BTO’s attorneys argued that the application was ill-conceived, brought under the wrong procedure and amounted to an attempt to circumvent disciplinary proceedings. They further submitted that Setlang had the benefit of experienced legal representation and should have been aware that the matter was procedurally defective.
Justice Tebogo-Maruping noted that labour matters generally do not attract costs unless a party has acted frivolously, vexatiously or with deliberate delay.
However, he found that the circumstances justified a departure from the usual position. “I agree with Attorney Ms. [Gift] Pilato that the application was quite unnecessary and an abuse of the court process,” the judge said.
He further found that the application was vexatious because it was brought “without sufficient grounds for winning” and served only to cause “annoyance or worry” to BTO.
In the final order, the Court of Appeal dismissed the application for a stay of disciplinary proceedings and directed Setlang to pay BTO’s legal costs on the ordinary party-and-party scale.
The court also reaffirmed the long-established principle that employers have a prerogative to discipline their employees and that courts are generally reluctant to interfere in ongoing disciplinary processes unless exceptional circumstances exist.
Justice Tebogo-Maruping observed that the Industrial Court had already determined that Setlang was not entitled to a temporary stay of the disciplinary proceedings while pursuing a substantive application for a permanent stay.
“The facts of the present matter are that it is the Applicant who brought the Respondent to court as a result of which unnecessary costs have been incurred,” the judge said.
In the final order, the Court of Appeal dismissed the application for a stay of disciplinary proceedings and directed Setlang to pay BTO’s legal costs on the ordinary party-and-party scale.
