Mogwera: Uneasy lies the head that wears the crown
High Court orders Babereki Investment to convene AGM Can Masego Mogwera survive the onslaught and ballot box?
The case in which the directors of Babereki Investments ( BI) want their chairperson Masego Mogwera and Tlhabologo Galekhutle out of the board is far from over and indications are that it is still early for any of the parties to celebrate.
Last week Lobatse High Court Judge, Jennifer Dube ordered Mogwera to convene an Annual General Meeting before end of November. One of the agenda items of the AGM will be the removal and appointment of new directors of Babereki Investments. This begs the question, will Mogwera survive the onslaught or will she be ousted through the ballot next month?
The marathon trial entered the high court on 17th July 2020 when the chairperson of Babereki Investments ( Pty) Ltd Masego Mogwera together with Martin Gabobake, Tlhabologo Galekhutle and the company BI filed an urgent application for an order that BOPEU’s decision to remove Mogwera and Tlhabologo Galekhutlhe be set aside.
BOPEU IS THE SOLE SHAREHOLDER OF BI.
BOPEU and other respondents namely Kaboyaone Sedimo, Panana Mpatana, Mandla Gunda and Companies and Intellectual Property Authority not only opposed the urgent application but also filed an interlocutory application to have the Court of Appeal record introduced by Mogwera and others struck out with costs.
Most importantly, they filed a counter- application for an order that Mogwera and other applicants convene an Annual General Meeting of BI which Mogwera and others had been frustrating. They prayed for costs for the counter- application.
On 23rd October 2020 high court Justice Dube found that the respondents had unlawfully removed Mogwera and Galekhutlhe as directors of BI, ordering the respondents to pay costs of that part of the three- pronged application. However, Mogwera and her team did not escape censure by the same court. They lost both the interlocutory application and the counter- application with costs in favour of BOPEU.
Justice Dube stated that “I am cognisant of the 1st Applicant’s meaning Babereki Investments’ non- compliance of its constitution and the Companies Act in that by the 7th July 2020 the 1st Applicant was 6 months out of time of holding its AGM. “This on its own is a serious violation of the Act and violation of the directors’ fiduciary duties”. The judge continued: “In my considered view, the Baberei Investment is out of time and in violation of the very instruments that govern it, including the Regulator’s rules”.
BOPEU had argued that the directors of BI, under the leadership of Mogwera, had breached its fiduciary duty towards the company by failing to comply with the Companies Act, and the Constitution of BI, and the Court upheld this arguments. Among others she held that the obligation to “convene the meeting” was on Mogwera and the other applicants and subsequently ordered that the Board of BI convene the long- pending AGM on or before 28 November 2020, and that Mogwera and others to pay the costs of the counter- application to convene the AGM.