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20-21 U. Botswana L.J. 3 (2015)

handle is hein.journals/unbotslj20 and id is 1 raw text is: 3 Damages for Wrongful Dismissal in Botswana: High Court and Court of Appeal at Loggerheads By Gosego Rockfall Lekgowe* and Kgotso Sekgele Botlhole** ABSTRACT The law exists to govern human affairs - to perform this function; it must possess the virtue of clarity and certainty. Courts have a duty to ensure that the law is clear and certain. An employee whose contract ofemployment is wrongly terminated looks to the courts for redress and an award of damages is one of the available remedies. In this article, we pose the question - what is the rule for determining the quantum of damages in an action for wrongful dismissal? Anyone who attempts to locate the applicable rule in quantifying such damages will soonfind himself in a dense bush of disjointed judicial opinion, a territory where the law, aided and enabled by courts, completelyforsakes the all-important virtues ofclarity and certainty. In the labour relations, the law has an additional function, one of striking a fair equilibrium ofpower between the employer and the employee. We argue that it is the employee who suffers more owing to this lack of certainty in the law. This article focuses on the action for wrongful dismissal at the High Court. In this article, we examine the jurisprudence of the High Court and Court ofAppeal, and reveal the confusion, contradictions and blinding defiance of simple logic. As a solution, we propose that there is need for alignment and consolidation ofprinciples in this area by the Court of Appeal or intervention by the legislature, the latter being the preferred long term solution and the former the interim measure. To put the analysis in proper perspective, we discuss the decisions in their chronological order The study is divided into three sections. Section I explains the relevant statutory provisions. Section II is a study of the case law relating to fixed term contracts. Section III looks at indefinite period contracts and contracts for specifiedpiece ofwork. In the conclusion, we make recommendations. * LLB, LLM (UB), Lecturer of Law, University of Botswana, Admitted Attorney, Dinokopila Lekgowe Attorneys, Gosego.Lek e)moPivi.ub.bw gosegolekgowe@gmail.com ** LLB (UB), AAT, CIMA Dip MA (UK), Admitted Attorney, Monthe Marumo & Co(Incorporating Molatlhegi & Associates), botlhole@monthemarumo.co.bw

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