DOUBLE JEOPARDY
Molefe, Showa have last laugh as BBS board loses twice
The Botswana Building Society (BBS) board on Monday suffered embarrassing double defeats when two different courts ruled against their decision to expel two of their executive managers.
Within a few hours interval, Lobatse High Court Judge Tebogo Tau discharged with costs a rule nisi that her court gave to the board in the absence of BBSL Managing Director, Pius Komane Molefe and Head of Marketing and board secretary, Sipho Showa.
Later in the day, another lady Justice Annah Mathiba of the Industrial Court interdicted the board from its intended purposes of terminating the services of the duo.
After teaching the board on how corporate governance operates by winning their appeal at the high court, both Molefe and Showa once again outclassed the board in their game.
While arguing in court, the board told Justice Tau that if Molefe and Showa felt hard done by their decision to terminate their services then they should have approached the Industrial Court. This is what they did on Monday; they approached the court and appeared before a three ladies panel of Justice Mathiba who was presiding together with a nominated member of Business Botswana, and a nominated member Botswana Federation of Trade Unions.
The duo was represented by Attorney Mboki Chilisa, while the Board was not represented.
Mathiba ruled that the application be heard on urgent basis. She restrained and interdicted the board for terminating both Molefe and Showa’s contracts of employments by passing a resolution in terms of clause 50 of the constitution without a hearing, or from giving effect in a resolution terminating the duo’s contracts of employment without a hearing.
Mathiba directed that the ruling forthwith acts as a rule nisi pending the return date of 26 May, 2021 at 09:00 hrs.
Passing her judgement, Justice Tau said it is common cause that the provisions of the BBSL constitution were not complied with, especially
Clause 75 of the constitution.
She ruled that notice was not issued in terms of clause 75.2 of the constitution which requires that seven days notice be given to every director who is in Botswana and that such notice must include the matters to be discussed.
Justice Tau’s view is that the purported meeting of the Board of Directors was in breach of the constitution, and was therefore a nullity and could not have binding legal consequences.
She added that the decision which was taken during the meeting which was invalidly constituted was invalid.
The Resolution which was also passed at the meeting was invalid.
As the decision to terminate the contracts of Molefe and Showa stem from so-called invalid resolution, it is automatically null and void therefore there is no need for the court to set it aside.
In these circumstances, the application to interdict Molefe and Showa, which is based on the decision of the board at the meeting held on 5th April 2021, to terminate the respondents’ contracts of employment is bound to fail.