Mogwera & Co To Amend Notice Of Motion

Lobatse High Court judge Mercy Garekwe has granted former Botswana Public Employees Union (BOPEU) president Masego Mogwera and fellow litigants permission to amend their notice of motion. This is the latest development in a continuing saga that is playing out in a case in which Mogwera and company are challenging the legality of the 2019 Palapye Special Congress that resolved to expel them from the union.

Mogwera, alongside Kgomotso Mokgethi, Topias Marenga, Tambona Jopi, Clifford Santudu, Millian Cuzwani Mpofu and Onalethata Lebotse had filed an interlocutory application to amend some paragraphs of the notice of motion in the main application and substitute incidental clauses.

The applicants had in error, made reference to Olefile Monakwe as the first applicant in the matter, when the intention was to refer to the

Botswana Public Employees Union (BOPEU). BOPEU opposed the amendment sought to argue that the reference was not in error but rather a conscience decision to personalise the matter.

However, the court on Friday agreed with the applicants that indeed this was an error made by the attorneys in stating the wrong respondent.

“What mainly informs the court that this was an error is the fact that, it is common cause that the first respondent, as an individual, is incapable of holding a personal congress, and that it can only be the second respondent’s congress that the applicants intended to reference. As a matter of fact, the first respondent never held any congress,” reasoned Garekwe in her ruling.

Garekwe dismissed averments that the applicants intended to personalise the matter.

“The first respondent is not just an ordinary member of the second respondent. During the time in issue, he was acting in his alleged capacity as an office bearer of sorts of the second respondent. The allegation that he could pull some form of support, more so in a hostile environment such as prevails in the second respondent Union, cannot be over emphasised,” the judge said.

The judge also did not agree with the argument that the amendment will not facilitate the proper ventilation of the dispute between the parties.

On the other hand, she indicated that the amendment seeks to place proper perspective to the matter and puts beyond doubt who is alleged to have done what in so far as the respondents are concerned.

She further found out that failure to amend will derail the actual issues as borne by the contentions of BOPEU relative to the alleged error and the basis of the amendment sought.

In her view, the amendment sought would not cause any injustice to the respondents but explained that the respondents would also be afforded an opportunity to amend their pleadings if there is need to amend their pleadings as a result of this amendment.

“Without belabouring the issues, therefore, this is one matter where the Court ought to reasonably exercise its discretion in favour of allowing the amendment sought. In the result, the application succeeds. The Applicants shall pay the costs of this application on a party and party scale,” Justice Garekwe ruled.