Justice Leburu reverses removal of BFTU President
Says the process was fundamentally flawed
Gaborone High Court Judge Michael Leburu has ordered Botswana Federation of Trade Unions ( BFTU) to reinstate Martin Gabobake as its President.
The federation took a decision to remove Martin Gabobake from the presidency after Botswana Public Employees Union ( BOPEU) decided to recall him from the position of BFTU President.
Gabobake launched an urgent application challenging his removal as BFTU President. He argued that the BFTU’s meeting which purportedly resolved to remove him as President was not convened in terms of the BFTU Constitution, particularly Article 18.6 and 18.7 thereof.
Gabobake said he was not given an opportunity to be heard, as contemplated by Clause 18.9 of the BFTU Constitution. “It is the applicant’s averment that the impugned meeting of the BFTU was convened by Vanessa Nakedi, a member of the Executive Board and not by the President of BFTU, hence the invalidity.
“It was also contended that the BFTU letter under consideration makes reference to a ‘ recall’ whereas the Constitution of the BFTU has no provision for ‘ recall’. “This argument was also directed towards the BOPEU Constitution, and it was submitted that BOPEU Constitution does not have an article or provision dealing with ‘ recall’ of office bearers”, Justice Leburu said, adding that the decision to recall Gabobake is declared unprocedural and unlawful and is set aside. The judge explained that the decision to remove Gabobake as BFTU President is tainted and laced with procedural irregularity and impropriety. He said it is common cause that the Executive Board meeting was not convened by the president.
While BFTU avers that the meeting was called by one third of the Executive Committee members, Justice Leburu said it is a requirement that such a request for a meeting should be in writing.
“The Respondent when called upon to adduce evidence of such written request for a meeting dismally failed to discharge such evidential burden to prove same. “In other words, there is no presumption of regularity, in cases of this nature. Article 18.7 requires a seven days’ notice for such a meeting. “The Respondent contends that the Executive Board met on its own and proceeded to represent the General Council or delegate Congress. “Assuming that such was the case, such a process was fundamentally flawed in that it excluded the primus inter pares, the president of the respondent ( BFTU), who is the leader of all structures of the respondent”, Justice Leburu said in the judgement. According to Justice Leburu it is
contractually ordained and promised that before an Executive Board member is removed, he/ she shall be given an opportunity to show cause why he/ she cannot be removed from the Board.
He said it is common cause that the applicant, as the president of BFTU, is a member of the Executive Board. It is also common cause that the applicant was not given an opportunity, prior to his removal, to show cause why he should not be removed, explained Justice Leburu, adding that on this ground alone, the decision to remove Gabobake cannot pass procedural muster.
He stated that an act done contrary to the express contractual and or statutory promise or edict renders such an act unlawful and thus susceptible to be corrected and set aside. Gabobake launched this application after BFTU through its Secretary
General Busang Butale wrote him a letter in April this year that communicated a decision to recall him from the presidency of BFTU. According to BFTU an Emergency Executive Board Meeting was convened virtually on Saturday the 17 March 2021 to address the BOPEU recall letter.
The said virtual meeting resolved to recall Gabobake as president and such resolution was communicated to him by a letter dated 2nd April 2021. The General Council of BFTU would later on the 15th April 2021 convene and ratified the decision to remove Gabobake from the presidency. According to BFTU, Gabobake occupied the position of president of the federation at the pleasure of his own union - BOPEU and since BOPEU has recalled him, he could no longer be president of BFTU.