Court orders BPOPF to reinstate Motshegwa as a Trustee
Motshegwa’s membership was terminated on grounds that he was seeking political office
High court Judge Mercy Garekwe has ordered Botswana Public Officers Pension Fund Board of Trustees to reinstate Botswana Land Board Local Authorities and Health Workers Union ( BLLAHWU) Secretary General Ketlhalefile Motshegwa to the Board with immediate effect.
Garekwe said the decision made to remove Motshegwa from the Board of Trustees is irrational, unreasonable, arbitrary and unlawful and therefore stands to be reviewed and set aside.
BLLAHWU ( 1st Applicant) together with Motshegwa ( 2nd Applicant) dragged to court BPOPF Chairperson ( 1st Respondent) and BPOPF Board of Trustees ( 2nd Respondent) for terminating Motshegwa’s membership in the Board of Trustees.
According to the background of the case Motshegwa was expelled from the membership of the BLLAHWU’s Board of Trustees (“the Board”) by letter dated 16th October 2019. The letter was authored by the BPOPF Board of Trustees Chairperson.
The basis of the expulsion was that Motshegwa was conflicted due to his contestation for public political office to serve in the National Assembly.
Motshegwa had breached BLLAHWU’s code of conduct by availing himself for national public office; and that Motshegwa’s contestation for national public political office had potential to harm the image of the Fund. BLLAHWU was thus called upon to nominate a person suitable to replace Motshegwa. Justice Garekwe stated that the response by the 1st Applicant to the expulsion letter was summarily that no conflict of interest arose from 2nd Applicant serving in the National Assembly vis- à- vis the duties and obligations of the Fund imposed on him in that the concept of good faith as espoused in the Rules of the Fund (“the Fund Rules” or “the Rules” interchangeably) relates to transactional business, and the same Rules outline factors necessary for the Fund Trustees to conduct business, and that contesting for national political office was not one of the conflicts envisaged by the Fund Rules.
She said BLLAHWU argued that “there was failure on the part of the 2nd Respondent or the Board to outline the misconducts committed by the 2nd Applicant; 2nd Applicant had obediently and faithfully complied with the Fund Rules and it was as such uncalled for to terminate his trusteeship; the Central Executive Committee (“CEC”) of the 1st Applicant rejects the Board’s decision and resolved to nominate and/ or re- appoint 2nd Applicant to represent 1st Applicant on the Board; the Board ought to provide cogent evidence that 2nd Applicant had entered into transactions with BPOPF; competed against the financial or political interest of the BPOPF; used corporate identity, assets and information of the BPOPF to make secret profit for his personal benefit”.
The Judge pointed out that the Applicants contend that the Fund Rules and Code of Conduct do not define the concept of conflict of interest and that the Fund is mandated by the Retirement Fund Act to manage conflict of interest and act with impartiality in respect of all members.
“In so far as politics, civil society and conflict of interest is concerned, the 2nd Respondent’s reason for terminating the 2nd Applicant’s Trusteeship was that politics conflict with the business of the Fund as it has the potential to harm the image of the Fund.
“The Applicants aver that the 2nd Respondent’s rationale goes against the grain of evidence which points to the Fund associating with institutions which are headed by politicians and further that all the Trade Unions which constitute membership of the Board, promote, in their individual capacities, as well as collectively under BOFEPUSU, human rights and justice for democratic order, organise workers regardless of their political opinion, promote advancement of educational, political and economic knowledge in order to build their capacity so as to defend their interests, encourage workers to perform their rightful part in the political life of local and national communities and in the building of a democratic society in Botswana,” she said.
Garekwe said additionally, the Applicants contend that the 1st Applicant’s constitution encourages its members to partake in national public office to pursue political justice in the National Assembly, hence their resolution to deploy the 2nd Applicant to contest for Parliamentary seat at Gaborone Bonnington South.
Garekwe stated that from the analogy, and in addition to the first ground, it is apparent that the Board took into consideration irrelevant considerations, disregarded relevant considerations and worst still relied on generalised and unexplained considerations to reach the decision they did.
“In the result, an order hereby issues in terms of the draft order in the following terms: the decision of the 2nd Respondent dated 16th October 2019 is invalid and/ or unlawful and/ or unreasonable and is null and void and of no force and effect.
“The aforesaid decision to terminate the trusteeship of the 2nd Applicant is hereby reviewed and set aside. The Respondents are hereby compelled to admit the 2nd Applicant into the Board of Trustees of the BPOPF with immediate effect,” ordered Justice Garekwe.