Motshegwa’s rivals stop BLLAHWU elective congress
Want clarity on proper constitution to be used Fear Motshegwa might ‘ unlawfully’ participate in the congress
Botswana Landboard, Local Authorities and Health Workers Union ( BLLAHWU) Secretary General Ketlhalefile Motshegwa’s rivals have moved an application with the High Court to interdict the union’s elective congress billed for early December this year. The application comes after the union leadership through its president, Thatayaone Kesebonye revealed that a decision of the Court of Appeal which nullified the renewal of Motshegwa’s contract of employment has no effect as the court was interpreting the union’s 2015 Constitution which has since been amended. BLLAHWU Treasurer Baone Seboka and Central Executive Committee ( CEC) member Letsatsi Modise argued through their attorney Paul Muzimo of Paul and Partners Law firm that the triennial congress ( the elective congress) slated for 1 - 3 December 2022 in Francistown should not be proceeded with as there is a dispute over which of the two Constitutions is in force. It is argued that a triennial congress of the union ought to be conducted in terms of a properly promulgated Constitution of the union and attended by those who are supposed to attend in terms of the union constitution.
“The upcoming congress is an elective, therefore there are going to be elections of the CEC members. The election of the CEC is conducted in terms of the Constitution, therefore there is need for me and the Applicant to know which Constitution will be used.
“The said Constitutions vary in material respect for instance: one provides that the appointment to the position of secretary should be through a vote at the congress whereas the other provides that the secretary general can be appointed by the CEC; and one provides that the tenure of office of the secretary general shall not be less than three years whereas the other provides that it shall not be less than five years,” Seboka said.
Seboka also wants the court to hold the union, Motshegwa and Kesebonye in contempt of court for failure to implement the Appeals’ court decision which nullified Motshegwa’s contract and all the resolutions that were taken by the CEC. According to the Applicants, in the event that the court allows the congress to go ahead, the elections are going to be conducted in terms of the new Constitution which may later be declared invalid. They aver that persons who are not eligible to stand for elections would do so and are likely to be elected to the CEC. They argued that Motshegwa will participate in the said congress as the secretary general and his participation may later be declared invalid. The union will spend a lot of money in organising the said congress and members of the union will participate in the same when there is potential for the resolutions passed there to be declared invalid, Muzimo argued on behalf of the Applicants. It has been argued that the CEC took an unlawful decision to renew Motshegwa’s contract of employment on the 19th June 2020. 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.” Kesebonye said the judgement was interpreting the December 2015 Constitution, not the amended Constitution that was passed in December 2021 at a Special Congress held at Ave Maria 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 ( the congress) of the constitution 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 organ- the 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 was 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 re- align 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 reentered into with Motshegwa on the 22nd December 2021, thereby superseding and rendering the contract of employment of Motshegwa dated 23rd June 2020 invalid.