BOPEU/ StanChart case: Mogwera in, Marenga rejected
Justice Dr. Kebonang rules in favour of BOPEU that Marenga is not suited BOPEU maintains Marenga isn’t its General Secretary following termination of contract last year
Gaborone High Court Judge Dr. Zein Kebonang has rejected an application by Botswana Public Employees Union ( BOPEU) General Secretary Topias Marenga to be joined in an application by the union challenging the closure of its operational bank account at Standard Chartered Bank.
Marenga together with the union President have applied for joinder in the case against the bank. The application was brought by the Mogwera and Marenga ( 2nd and 3rd Applicants) to be joined as Respondents in proceedings that were instituted by BOPEU against Standard Chartered Bank on the 25th May 2021.
The proceedings against Standard Chartered Bank are still ongoing. The joinder application was opposed by BOPEU whilst Standard Chartered Bank did not oppose it.
The background of the case is that on the 25th May 2021, BOPEU filed an urgent application against Standard Chartered Bank for an order declaring among other things that the Bank’s decision to suspend the operation of its bank accounts was unjustified and unlawful.
It sought its bank accounts to be opened and for it to freely transact on them. A rule nisi was issued returnable on the 14th July 2021 which enabled it access to its accounts. Justice Dr. Kebonang said “the name of BOPEU as the 1st Applicant in the joinder application is hereby struck out; the substantive joinder application with respect to the 2nd Applicant is hereby granted; the 2nd Applicant shall now be the 2nd Respondent in the main application; the substantive joinder application with respect to the 3rd Applicant is refused.” The judge stated that BOPEU had previously moved court on urgency and obtained certain interim reliefs against Standard Chartered Bank. It was contended on behalf of the three Applicants at the time that it was a rebel arm of BOPEU that had launched the urgent application on the 25th May 2021 and that such application did not have the blessings of the 1st and 2nd Applicants, Justice Dr. Kebonang said, adding that according to the three applicants, only the 2nd Applicant as the President of BOPEU could sign off on legal proceedings on behalf of the 1st Applicant.
The rebels had apparently instituted the urgent application without her knowledge and authorisation said the judge.
He explained that on the substantive joinder application, attorney Gabriel Kanjabanga argued that the remaining Applicants had no substantial interest or legal right to be joined to the proceedings between BOPEU and Standard Chartered Bank. He pointed out that the lawyer further argued that the 3rd Applicant was non- suited as he was no longer the General Secretary or an employee of BOPEU, his contract of employment having come to an end in December 2020.
In counter, attorney Dutch Leburu, submitted that the joinder of the Applicants was necessary for proper and effectual adjudication of the dispute before court. “Regarding the argument that the 3rd Applicant, Topias Marenga, was non- suited, Leburu argued that BOPEU’s answering affidavit on the issue must not be accepted as it had not been filed on time. “BOPEU had alleged that the 3rd Applicant had no locus to institute the joinder application or maintain it as he was no longer an employee of the Union, his contract having determined in December 2020,” he said in the judgement handed down on Monday this week.
In Justice Dr. Kebonang’s view, the answering affidavit filed by BOPEU required to be responded to as it raised a critical issue in relation to the suitability of Marenga to institute the current joinder proceedings. In the absence of a replying affidavit negating or taking issue with the averments raised in the answering affidavit, the judge said BOPEU’s assertions that Marenga was not their employee or the General Secretary and therefore non- suited to bring the joinder application ought to be accepted.
“In my view therefore, the 2nd Applicant’s involvement at this interlocutory stage of the proceedings is necessary as it may help resolve the matter before court effectively, viz, who has authority to transact on BOPEU’s bank accounts.
“This is more so when one has regard to the fact that the issue being contested between BOPEU and Standard Chartered Bank relates to the closure of BOPEU’s bank accounts to which the 2nd Applicant is allegedly a signatory to,” Justice Dr. Kebonang stated.