Judge slams BOPEU factional litigation wars
Cases registered have serious financial implications on BOPEU purse Justice Garekwe tempted to award costs against individuals hiding behind the Union to fight personal battles
Factional wars within the leadership of Botswana Public Employees Union ( BOPEU) which are currently before courts have got the judiciary worried over the legal suits done at the expense of union members.
Court of Appeal Judge Isaac Lesetedi once expressed concern over the many cases lodged with the court by the warring factions.
In a fresh judgement by another judicial officer, the unending legal battle between one faction led by ousted President Masego Mogwera and current President Olefilwe Monakwe has been condemned. Mogwera ever since being voted into office in December 2018 in Kasane has never had peace and she continues to fight for her survival at BOPEU. The union is expected to go for its elective General Congress in December this year.
High Court Judge Mercy Garekwe says she is greatly concerned by the number of cases being registered by the same parties which have serious financial implications on the purse of the union. She said put differently, the parties who have time and again been coming to Court at the slightest opportunity do so not at their own expense but at the expense of the members of BOPEU.
According to the judge, there seems to be a reckless disregard of this very important fact. She pointed out that members of BOPEU tasked with the responsibility to protect and safeguard the interests of the members of the Union, ought to do exactly that and not seek to fight personal battles at the expense of the members of BOPEU.
“This vitiating circle and or cycle need to stop. I am tempted to award costs against individuals who are hiding behind the Union to fight their personal battles and excuse the Union from paying any costs. “The Courts are being bombarded with unmeritorious litigation by the same parties and at times seeking similar reliefs but in different proceedings. I am however constrained by the fact that the parties did not have the opportunity to argue this point before me. “The order that I am giving simply has the effect of confirming what my other brothers and sisters have already determined in other cases which are closely linked or associated with the present matter,” said Justice Garekwe. Mogwera, Kgomotso Mokgethi, Tambona Jopi, Clifford Santsudu, Millian Mpofu, Topias Marenga have taken Monakwe ( 1st Respondent) and BOPEU ( 2nd Respondent) to court challenging a decision taken at the union’s Special Congress in November 2019 and a Central Executive Committee meeting in December 2019 where they were expelled from office.
The Applicants have argued that the two gatherings were illegal and unlawful. Justice Garekwe ruled in favour of Mogwera and team. She ordered that the proceedings and or decisions of the 2nd Respondent’s Special Congress held on the 29th November 2019 to the 2nd December 2019 and or the Central Executive Committee held from the 3rd to the 6th December 2019 are reviewed and declared null and void and or illegal.
Among others, he gave reasons that: the convocation of the meetings aforesaid was done in breach of the BOPEU constitution; the convocation of the meetings aforesaid were convened in breach of the applicable regulatory framework which governs their convocation including but not limited to the BOPEU constitution, national legislation. She added that the proceedings and or decisions of the 2nd Respondent’s Special General Congress and or the Central Executive Committee are reviewed and set aside and or declared null and void insofar as they relate to Masego Mogwera, Kgomotso Mokgethi, Tambona Jopi, Clifford Santsudu, Millian Mpofu, Topias Marenga for one or more reasons that “the convocation of both the Special General Congress and Central Executive Committee was convened by a party not authorised by the Constitution of BOPEU and they consequently constituted illegal and or unlawful gathering. “The procedure and processes attendant to the convocation of both the Special General Congress and Central Executive Committee were in breach of the BOPEU constitution and departed from all norms of natural justice. “The decisions of the Special General Congress and or Central Executive Committee in themselves alternatively in relation to Masego Mogwera, Kgomotso Mokgethi, Tambona Jopi, Clifford Santsudu, Millian Mpofu, Topias Marenga were arrived at arbitrarily or capriciously alternatively.
“The 2nd Respondent misconceived the nature of its obligations and or functions and or powers in terms of the BOPEU constitution.”
According to Justice Garekwe the 2nd Respondent, in making an adverse decision upon a mere allegation without affording the affected parties an opportunity to be heard and thereby denying the affected parties their legitimate expectation alternatively breaching the rules of natural justice, in that upon being members, their rights in respect thereof would not be interfered with or without affording Applicants a hearing, acted arbitrarily or capriciously. All or any decisions at the Special
General Congress of the 2nd Respondent, held on the 29th November 2019 to the 2nd December 2019 and or the Central Executive Committee held from the 3rd to the 6th December 2019 are declared as unlawful and are as such set aside, added Justice Garekwe. BOPEU has since noted an appeal against the decision of the High Court Judgment passed on 7th May 2021. The union has applied for stay of execution of the judgment pending its appeal against same at the High Court and/ or the Court of Appeal; and further applied that its appeal or intended appeal be heard on an expedited basis.