Chaos as BLLAHWU fights on SG’s corner

Appeals court declares Motshegwa’s employment contract invalid Appeals court interpreted a wrong Constitution - BLLAHWU President Motshegwa remains our Secretary General - Kesebonye

Botswana Land board, Local Authorities and Health Workers Union ( BLLAHWU) has come to the defence of its Secretary General Ketlhalefile Motshegwa over his contract of employment.

This is after the court of appeal set aside and declared the decision by the leadership of the union to renew Motshegwa’s contract, null and void. BLLAHWU President Thatayaone Kesebonye revealed that the Court of Appeal was dealing with a wrong Constitution and contract of employment.

Motshegwa has been embroiled in a protracted legal battle with some of his colleagues who argued that he is illegally occupying the secretary general position. He had been dragged to court by BLLAHWU 1st Vice President Nicholas Mothelesi and Treasurer Baone Seloka. They lost the case at the High Court last year August and filed an appeal application.

In its ruling, the appeals court said “the Appeal succeeds with costs. The order of the Court a quo is set aside. The decision and or resolutions of the Central Executive Committee of the 19th June 2020 to renew the contract of employment of the 2nd Respondent for a period of five years commencing 1st July 2020 to 30th June 2025 is reviewed, and set aside.

“It is hereby declared that the decision of the Central Executive Committee of the 1st Respondent to renew the contract of employment of the 2nd Respondent for a period of five years commencing 1st July 2020 to 30th June 2025 is ultra vires the powers of the Central Executive Committee and consequently null and void.

“The contract of employment concluded between the 1st and 2nd Respondents signed on the 23rd June 2020 is declared unlawful and therefore null and void.”

Meanwhile Kesebonye says the judgement was interpreting a December 2015 Constitution not the one for December 2021. He said a Special Congress held at Ave Maria amended the Constitution and resolved that the position of the Secretary General was not an elective post.

“However, it appears the congress resolution was not captured in the manner the framers of the constitution and the congress wanted.

Hence the confusion alleged by the Applicant, notwithstanding that the 1st Appellant ( Mothelesi) was a member of CEC which employed the secretary for a period of five years.

“Any ambiguity in the December 2015 Constitution was repealed and replaced with a proper intention and mandate of the Supreme organthe Congress in October 2021,” argued Kesebonye following the judgement handed down by Justices Mercy Garekwe, Isaac Lesetedi and Signh Walia.

According to Kesebonye, the 2015 Constitution has been repealed in October 2021 and approved by the Registrar of Trade Unions on the 6th December 2021 in terms of Section 32 ( 5) of the Trade Unions and Employers’ Organisations’ Act ( TUEOA).

The BLLAHWU President argued that on the 22nd December 2021, the CEC held a meeting to realign the employment of the secretary general with the decision of the Special congress held on the 29th October 2021, as well as the December 2021 Constitution.

He said a new contract was re- entered with Motshegwa on the 22nd December 2021, thereby superseding and rendering the contract of employment of Motshegwa dated 23rd June 2020 invalid.

In the application before the High Court, the Appellants ( Mothelesi and Seloka) had sought orders calling upon the 1st Respondent ( BLLAHWU) to show cause why its decision and or the resolutions of the Central Executive Committee of the 19th June 2020 to renew the contract of employment of Motshegwa for a period of five years commencing 1st July 2020 to 30th June 2025 cannot be reviewed, corrected and or set aside.

The Appellants also sought an order declaring the decision of the Central Executive Committee of the 1st Respondent to renew the contract of employment of the 2nd Respondent for a period of five years commencing 1st July 2020 to 30th June 2025 ultra vires the powers of the Central Executive Committee and consequently null and void.

An order declaring the contract of employment concluded between the 1st and 2nd Respondent signed on the 23rd June 2020 null and void and therefore unlawful.

The Appellants’ main contentions before the lower court were that the CEC has no power to elect or appoint the SG in that, Article 13.2.2 of the Constitution stipulates that the CEC office bearers shall be elected by the Congress; that Motshegwa is not a member of BLLAHWU by virtue of him not being an employee in an industry with which the Trade Union is directly concerned; and that he cannot hold an elected position within the Union by virtue of him not being a member of the Union.