Motshegwa is BLLAHWU’s lawful SG - union president
Accuses colleagues of abusing court process Members want Motshegwa removed as SG
President of Botswana Landboard, Local Authorities and Health Workers Union ( BLLAHWU) Thatayaone Kesebonye says there is nothing unlawful with the employment of the union Secretary General, Ketlhalefile Motshegwe under the 2021 Constitution.
He stated that there is no legal or factual basis to impugn the Constitution. According to Kesebonye, due process was followed in amending the Constitution.
He argued that the Governing Council held a meeting on the 29 July 2021 and resolved “that there be a Constitutional amendment by Congress to align Constitution to labour laws and other emerging trends of best practice”.
He revealed that it is important to note that the Constitution was adopted by Congress and all that was left for the CEC was to implement the Resolution by ensuring registration of the Constitution.
It is Kesebonye’s argument that the CEC or office bearers do not make resolutions. Resolutions, he said, are passed by a region and seconded by another region before passing. He reiterated that Motshegwa is the Secretary General of the Union having been appointed in terms of the 2021 Constitution.
“So there were still five members of the CEC. The decision was not unlawful. It was taken by a lawfully constituted CEC. The applicants were part of the decision making. That they individually voted against the appointment does not detract from the fact that the decision stood as that of the CEC.
“It is true that the Union issued the notice. The notice is factually and legally correct. The Court of Appeal itself expressly emphasised that it was interpreting the 2015 not 2021 Constitution.
“And the 2015 Constitution has been amended and repealed. I am advised and verily believe the advice to be correct, that an administrative act, the registration of the Constitution in this instance, remains valid and effectual until reviewed and set aside.
“It is denied that Motshegwa was not a member of the Union and that his involvement invalidated the decisions of the Union or Congress.
The proceedings of Congress were chaired by me, the delegates debated the agenda items through the heads of delegates.
“The Secretary General’s role was simply clerical. The delegates had the power to refuse the proposed amendments,” he said in his replying affidavit to an application seeking the removal of Motshegwa as SG and the interdiction of the BLLAHWU triennial congress ( elective congress) expected next week.
Union members, Baone Seloka ( Treasurer General) and Letsatsi Modise ( Mogoditshane Branch Secretary) have approached the High Court on urgency seeking that all decisions taken by Motshegwa or wherever he was involved from June 2020 to be reversed as per Court of Appeal judgement.
They also want Congress interdicted as he ( Motshegwa) was spearheading its preparations.
They further want amended constitution nullified as he took part in it and that he and Kesebonye be jailed for contempt of court.
They also want an order declaring the decision of the 3rd Respondent’s Central Executive Committee ( Union) made at the meeting allegedly held on the 22nd December 2021, in terms of which it was resolved to appoint the 4th Respondent ( Motshegwa) to the position of secretary general, to be unlawful therefore null and void.
An order declaring the contract of employment concluded between the 3rd Respondent and the 4th Respondent on or about the 22nd December 2021 to be unlawful, therefore null and void.
The union president has argued in the court papers that in 2013 at Mmadinare, Congress resolved, amongst other resolutions, that the Secretary General should not be an elected position but a full time employee of the Union. The resolution, he said necessitated the amendment of the then prevailing Constitution.
“The resolution was reiterated by a resolution of the Governing Council of 2014 and the Annual General Meeting Conference of 2014. The Special Congress of 28 February 2015 adopted the amended Constitution.
“However, in time, it became clear that the amendment failed to accurately capture the resolution of the Special Congress whilst the minutes of the Special Congress were clear as regards the appointment of the Secretary General.
“It became necessary that the Constitution should be amended to accurately reflect the intention of the Congress of 2015. The amendment was effected and duly adopted by 29 October 2021 Congress.
“There is no explanation as to why the declaratory orders are sought in this urgent application even though the Applicants intend to bring an application for the same reliefs in the normal course,” Kesebonye argued.