A dark cloud hangs over Botswana Public Employees Union (BOPEU) former President Andrew Motsamai over a P43 million counter-claim by his former employer Babereki Investment after he failed to file opposing papers.Motsamai, who is also a former Executive Chairman of Babereki Investment, had slapped his former employer with a demand letter for more than P2.1million payment and interest at the rate of 10 percent. Babereki Investment would later issue a more than P43million counter-claim.
Motsamai has so far been paid more than P1, 2 million by his former employer following the termination of his contract last year. Motsamai has been accused of contravening Section 127 of the Companies Act during the period of December 2016 and before by overriding the decisions of Babereki Investment as he allegedly acted without the approval of the Board in respect of various transactions that Babereki Investment engaged in with third parties.
It emerged this Wednesday before Justice Abednego Tafa of Lobatse High Court that Motsamai through his lawyer Gabriel Kanjabanga of Kanjabanga and Associates, has not filed papers opposing the counter- claim by Babereki Investment. Dutch Leburu of Monthe Marumo and Company representing Babereki Investment indicated that when the court considers their counter-claim it should take into consideration that Motsamai had failed to file opposition of the counter-claim.
Kanjabanga told the court that there are valid reasons for not filing the opposition of counter-claim. He revealed that the papers were not filed because they have filed an application before court citing the counter-claim by Babereki Investment as irregular and improper. In the application Motsamai wants the counter claim to be set aside.
“I seek an order setting aside the respondent’s (Babereki Investment) counter claim on the basis that it constitutes an irregular and improper step contrary to the peremptory requirements of Section 75, 79 and 81 of the Employment Act. The respondent does not dispute my main claim. In terms of their plea, they have only taken issue with the quantum thereof.
If the dispute narrows down to quantum, it would be a proper matter in which the Registrar of the High Court can make a determination on,” Motsamai states in court papers seen by Botswana Guardian. He added that in terms of a counter claim filed with the plea, Babereki Investment seeks to set off his claim with its counter-claim. Motsamai explains that, he is advised and verily believes that withholding his terminal benefits in an attempt to recoup alleged unliquidated damages the merits of which are yet to be determined, is against the dictates of the law.
On Wednesday when the parties appeared for arguments in the suit brought by Motsamai against his former employer, Leburu indicated that the counter-claim should be decided differently from the claim brought by Motsamai and the court should in its determination take into consideration that Motsamai had not filed opposing papers.
“The defendants indicate that I should say the counter-claim is not opposed. They say there has to be a ruling on that because there has been no opposition,” said Justice Tafa to Kanjabanga representing Motsamai who responded, “We have not filed opposing papers yet because of the application of irregularities.” At this point things nearly got out of hand as Justice Tafa and Kanjabanga argued on what should be done. Justice Tafa indicated to the lawyer that he heard his point and there is no need to elaborate it because he has been listening to him for two (2) hours.
He stated that the decision of the court does not come from the intelligence of an attorney but from facts before court and what the law says. Kanjabanga indicated that he was only trying to elaborate so that the court would appreciate the point he is trying to put across.
In arguments for Motsamai’s claim Kanjabanga stated that there is no material fact placed before court indicating that his client made decisions unilaterally. He said withholding the money owed to Motsamai is in contravention of the Employment Act. Leburu has however argued that the total amount of terminal benefits which include leave pay, gratuity and salary for September 2017 have been paid in full. “The total amount for the salary for September 2017 is P62 722. 25, Leave pay P45 730. 22, gratuity at P25 444.50.
The total is P133 896. 97. These would be the amounts covered under section 75, 79 and 81 of the Employment Act. The payment of the balance of the contract period is a damages claim and consequently not covered under the aforesaid provisions,” said Leburu. He told the court that such payment does not constitute wages and/or salary and/or emoluments as contemplated by the Employment Act.
In 2017, Babereki Board resolved to fire Motsamai allegedly over millions of pulas gone down the drain via multi-million investments at its subsidiaries - Future Sustain International and Fly Mission Services. Babereki Investment states that Motsamai entered into agreements with various companies and made payments to those companies without authorisation. As a result, Babereki Investment is claiming P4 919 769.88 from Motsamai.