Suspended Botswana Public Employees Union (BOPEU) President Masego Mogwera will know her fate as chairperson and member of Board of Babereki Investments (Pty) Ltd Directors next week Thursday.
Mogwera, together with three other Board members; Martin Gabobakwe, Tlhabologo Galekhutle and Otto Itumeleng were recently dismissed from the Board of Babereki Investments (BI). BI is an investment arm of BOPEU. Mogwera and team then took acting president, Olefile Monakwe to court seeking nullification of their removal from the Board. Justice Gaolapelwe Ketlogetwe of Lobatse High Court this week indicated that he would deliver final determination on the matter on the 23rd of May 2019 following the interim interdict order he made last week.
Justice Ketlogetswe last week issued an interim interdict in favour of Mogwera and team and directed that the decision and or communication by Monakwe seeking to dismiss or dis-appoint Mogwera and fellow applicants as members of the Board of Directors, was unlawful and set aside.This week attorney Gabriel Kanjabanga appearing on behalf of Monakwe told the court that Mogwera and team have no authority to have brought the case before court on behalf of BI. He said the applicants admit that at the time of bringing the case to court they were not board directors of BI and cannot act on behalf of BI which is cited as 1st Applicant in the case.
“If they agree that at the material time they were not board members then they cannot purport to be acting on behalf of BI. The resolution they purport to have signed on behalf of the 1st Applicant (BI) is therefore invalid. “The court should find that at the time the resolution was made, they were not competent to be acting for BI. They misled the court to issue an order that they represent BI,” said Kanjabanga adding that BI is not properly before court because Mogwera and co-directors have no authority. He argued that most of the averments are based on BI and not on other Applicants.
Dutch Leburu representing Mogwera and her team argued that his clients acted on behalf of BI because they were unlawfully removed. He said they were competent enough to have made and signed the resolution as per the Companies Act and the Trade Unions and Employers Organisation Act provisions. According to Leburu, BI is properly before court. “The directors should have been removed at a shareholders meeting and not a National Executive Committee (NEC) meeting. “The shareholders meeting is convened by the board but the meeting that fired the directors was not purported to have been called by the board. The Chairperson of BI, that is, Mogwera was to chair the
meeting but there is no evidence that she did chair the meeting,” he said.Kanjabanga argued that there are no facts produced to indicate what harm other Applicants would suffer other than BI if the case is heard through normal cause and not brought through urgency. He said they are only protecting their own personal interests. “Why should the court hold that the case is urgent in relation to them if they failed to prove on what basis they bring the case on urgency?
“They do not have a legal right. There is also an issue of joinder- they failed to join BOPEU in the proceedings since BOPEU is a shareholder,” he told the court arguing that Monakwe took the decision to suspend Mogwera and team on behalf of BOPEU through an instruction from the NEC of BOPEU.
Leburu argued that Mogwera and other directors were not acting to protect their own interests. He said they were protecting the interest of BI and its shareholders. “There is nothing about urgency for personal gain. They do not do that for personal interest but for the company and its creditors. We are therefore entitled to the confirmation of the interim interdict that this court issued,” argued Leburu.
He explained that 80 percent of documentation that has been filed with the court by the Respondents is unnecessary adding that the case of urgency and interdict have been made by his clients and should succeed.According to Kanjabanga there was no need for the Applicants to have been part of the meeting that suspended them. This, Kanjabanga said, is because they are not shareholders of BI. “The majority of the NEC members were there and they took a unanimous decision to remove the Applicants. There was compliance in terms of the law in the removal of the Applicants,” he said.