Mogwera claims eight NEC scalps
The numerous Court victories that eventually reinstated Masego Mogwera as president of the Botswana Public Employees Union (BOPEU) since she was toppled in 2019 have claimed scalps of eight National Executive Committee (NEC) members.
Five of them learnt their fate this week after they took their case to the High Court.
The five members were in disbelief last week when they were not invited to BOPEU’s first ever NEC meeting under Mogwera’s leadership.
They later launched an urgent Court application to reassert their rights as well as oppose the reinstatement of Topias Marenga as the Union’s general secretary.
However, Justice Gabriel Komboni sealed the fate of the quintuple this week. This was after he ruled that they were no longer BOPEU NEC members since all processes and actions taken after the illegal suspensions of Mogwera and Marenga at the April 27, 2019 meeting or at the Palapye special congress in December of that year were found by the courts to be illegal, null and void.
The five NEC members officially now out of BOPEU NEC are listed as Naledi Nfana, Elliot Boiki Diphofu, Kemmonye Tshwene, Elias Motshepa and Motswaledi Monaiwa. The figure brings to eight the total number of BOPEU NEC members who now find themselves out of the NEC as a result of Mogwera’s victory.
The other three are Kaboyaone Rash Sedimo, who was installed as general secretary of BOPEU since the toppling of Mogwera, Philemon Zibani, who was installed as the deputy general secretary and Donald Mokgwe, who was installed at the illegal Palapye congress as first deputy president.
Justice Komboni was not amused by the Court application of the five, which he observed was yet another installment of the battles between BOPEU’s two factions which had been going unabated since 2019.
He lamented that the protagonists of the battle had turned the courts into their battleground and that despite serious reprimands from different judges of the High Court, the two factions have not relented, before he proceeded to slap them with punitive action, ordering them to pay costs at attorney and client scale.
Justice Komboni said on July 10, 2021, BOPEU, under Mogwera had successfully stopped one Kaboyaone Sedimo from conducting himself as general secretary of BOPEU, as well as from obstructing legally recognised officers of the Union from doing their duties, including denial of access to office.
Komboni further said the interim ruling by Justice Ketlogetswe further set out who were the rightful BOPEU office bearers, as they appear in the Registrar of Trade Union certificate of May 12, 2021.
Justice Komboni also referred the five to the judgement of a High Court panel on November 27, 2020, which held that the decision of the NEC taken on April 27, 2019, to suspend president and secretary general of BOPEU were unlawful and such were set aside.
He further said in another judgement by Justice Garekwe, on May 7, 2021 it was held that the proceedings and decisions of BOPEU’s special congress held on November 29, 2019 to December 2, 2019, amongst which decisions was to expel Mogwera from membership of BOPEU, as well as Marenga, were declared unlawful and set aside.
“Garekwe J stated that everything done by the first respondent and his cabal following the resolutions of 27 April 2019, which resolutions gave them some semblance of authority to act in the manner they did is invalid and that all the decisions they took including those involved in the application she was dealing with are of no force or effect,” he said.
Komboni further said there was an attempt to appeal Justice Garekwe’s judgement but Court of Appeal (CoA) in a ruling on June 4, 2021 dismissed the same application.
The CoA held that members of the national executive committee whose office in BOPEU was held by virtue of any of the decisions or resolutions set aside in the judgements being appealed against, ceased to hold such offices when those decisions were made, as none of those orders issued therein were postponed or have they been stayed.
Komboni also ruled that the applicants lacked standing in law, as they could not prove that they are regional chairpersons even when challenged to do so.
On the applicants’ declaratory orders to the effect that Marenga should not hold himself as general secretary of BOPEU, Justice Komboni said justice Ketlogetswe on July 10 had already ruled in favour of Marenga.
Justice Ketlogetswe had ruled that the general secretary of BOPEU is to be retained and that the respondent in that matter being Kaboyaone Sedimo is interdicted and restrained from purporting to be the general secretary.
“This order remains in force and it was issued on 10, July, 2021. The respondent in the matter was given 72 hours to challenge the same rule nisi which is returnable on 6 August, 2021, and he did not do so; what the applicants want me to do is to reverse the order aforesaid; Mr Leburu, learned counsel for the respondents has said that what the applicants are seeking is judicial collision, I agree with him. If the applicants were not happy with the rule nisi, they should have asked the respondent in the mater to anticipate the return date before Ketlogetse J, instead of approaching another court,” ruled Komboni.
“There is no urgency in the orders sought against Marenga because the applicants have been aware of the same order which preserves Maranga’s position as General Secretary since it was issued on 10, July, 2021, for them to come at the last minute to challenge notices issued by him and his capacity to issue the same notice is self-created urgency.I therefore come to the conclusion that in view of the rule nisi issued by Ketlogetswe J as aforesaid, it will be incompetent to entertain the orders sought, which are meant to reverse that order.”