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.
Botswana Public Employees Union President Masego Mogwera is again fighting for her survival at the helm as her rivals have returned to serve in the National Executive Committee, Botswana Guardian can reveal.
The rivals have since slapped Mogwera with a suspension pending investigations. The NEC is scheduled to meet today (Friday) to appoint a Commission to investigate her and General Secretary Topias Marenga who has also been suspended. If they are found to have committed an offence, a commission for disciplinary hearing would be appointed. If this happens the tension between Mogwera and her rivals could end in her dismissal from Babereki Investment and from the presidency during a Special General Congress.
She would fall in the same fate as her predecessor Andrew Motsamai who was fired in 2017 by the NEC for abuse of office and possible misappropriation of funds. Last year, Mogwera known to her colleagues in labour sector as the Iron Lady, had to fight for her survival as some members of the union NEC fought for her removal as president-a battle that ended in court.
The rival members later after being in and out of court with Mogwera were brought for disciplinary hearings by the union leadership and suspended. They would later challenge their suspensions which were subsequently set aside.
Beginning of trouble for Mogwera
The members have emerged victorious these past weeks as they were voted chairpersons during various Regional Conventions’ elections. This automatically qualified them as members of the NEC. Some of the key leading members are Ogaufi Masame, Zibani Philemon, Mosalagae Tlhako and Motswaledi Monaiwa. These members were suspended following a controversial meeting held in July last year at Cresta Lodge in Gaborone. The meeting saw the union NEC going neck to neck at the courts of law fighting for the control of the union. This publication has also discovered that out of the 12 regions nine (9) are allegedly aligned with Mogwera’s rivals which is led by Philemon.
The NEC has 20 members as per the constitution of BOPEU and Masego’s rivals are said to be sitting at 12 members in the NEC inclusive of three (3) National Officer Bearers (NOB). Philemon was during the union’s December 2018 Congress tipped to challenge Mogwera for presidency but this could not happen due to his suspension. About four (4) appeals from regional congresses are said to have been raised being Kgaga region (Kgalagadi and Ghantsi areas), Franksmartts region (North east and Chobe), Central region and Botswana Examinations Council region.
Mogwera’s rivals pushed for an emergency meeting to be held last week Friday. According to a letter seen by this publication written by General Secretary Marenga a decision was taken to have the meeting held. The meeting that took place the following day (Saturday) proved that it was now the return of Mogwera’s nightmares. The rival members were said to be itching to leave no stone unturned during the meeting in demanding answers and ensuring Mogwera’s exit happens. At the meeting Mogwera and Marenga were suspended from the union, a decision that Mogwera has since rubbished through a press statement. The rival faction has also issued a counter statement warning stakeholders not to engage with the duo in any business on behalf of the union.
On Tuesday this week both factions were summoned at Police Headquaters in Gaborone after Mogwera requested for intervention for her rivals who have since taken over the union office to be removed. The police are said to have asked both factions to explore internal processes in their standoff. Acting President Olefile Monakwe confirmed that they will be forging ahead with the investigations.
He revealed that their meeting at the police could not have resolved the situation because NEC has taken a decision and only the NEC could resolve the situation. He explained that proper procedure has been followed for the NEC to have arrived at such a decision and it has never been a witch hunt as communicated by Mogwera. Contacted Mogwera said she has nothing against her colleagues and had hoped that what happened last year is a thing of the past as the court and members of BOPEU have demonstrated. According to Mogwera she believed that they have to work together and comply with the union provisions and respect the members who have given them the mandate to serve.
“The two parties were at loggerheads with each other last year due to our interpretation as to what is to happen or be done. “The union members in Kasane in large numbers entrusted me with the organisation and equally they have been entrusted at regional level with the leadership of the organisation. “Our job is to deliver on the mandate because there is a lot to do in terms of labour issues. I have accepted them back into the NEC without any condition and will extend my support for the betterment of our union and members,” said Mogwera. As far as she is concerned, she is still president. Mogwera pointed out that there are procedures in place that have to be followed to remove her as a duly elected president by the Kasane Congress. She explained that even on Monday this week she convened Board of Directors meeting for Babereki Investment. “It was to brief the directors about the situation we find ourselves in.
“Babereki is regulated by NBFIRA and when things are like this, where people just take a resolution to dissolve the Board, we have to give an update to our stakeholders,” said Mogwera.
First Step for Mogwera’s fall
The union leadership acceded to last week’s request after it rejected a similar request last month by another NEC member. Last month one of the NEC members had requested an emergency meeting through a letter dated 22nd March 2019. The NEC member who is the Statistics Botswana Regional Chairperson Modise Ramaretlwa wanted the meeting to discuss the impending court cases, staff involvement in union politics, Union Board Representation, letter of request to meet NEC by Don Gaetsaloe, Special General Congress and suspension of Regional elections.
Last week Botswana Unified Revenue Services (BURS) Chairperson Mosalagae Tlhako requested for an emergency meeting. Tlhako wanted the issues raised by Ramaretlwa in the previous request to be part of the agenda.
He also challenged the contract of employment for General Secretary Marenga and his deputy. “I wrote a letter dated 15th April 2019, which evidently was received and transmitted to yourself by Ms Enametse. In essence, the letter reminded the union leadership that the contract of the General Secretary Topias Marenga and Deputy General Secretary Ketlhapeleng Karabo is expiring end of this year. “Therefore, in accordance with best practices, there is need for the GS and DGS to start serving notice of six (6) months before the expiry of their contracts.
“In addition, that General Secretary should participate in the drafting of the job profile for the General Secretary and his deputy based on his experience,” said Tlhako in a letter dated April 16th 2019. He pointed out that since that letter he has received information that completely alters the character of his letter. “I have been made aware that the offer of employment of the General Secretary effected on the 1st of February 2012 and was for a period of five (5) years, which means it expired on the 28th February 2017 or thereabouts,” stated Tlhako in the letter. He indicated that on the basis of this background he requests for a special NEC meeting and wants the issue to be part of the agenda items.
Tlhako, who had proposed that the meeting be held on Tuesday this week, threatened that should he not get feedback he would assume his request has been rejected and he would be compelled to exert his right as an elected NEC member.
In his response letter of April 17th 2019 Marenga indicated that the agenda item proposed by Tlhako would be discussed at the meeting.
Botswana Public Employees Union (BOPEU) National Appeals Board (NAB) has reversed a decision by union President Masego Mogwera to suspend National Executive Committee member Motswaledi Monaiwa. Monaiwa and other NEC members were suspended last year following a controversial meeting in July where they suspended President Mogwera and other NEC members.
Mogwera would later suspend the NEC members who participated in the meeting that suspended her. This resulted in court battles between the two camps in the build up to the union’s elective congress in Kasane. NAB sitting last week resolved to set aside Monaiwa’s suspension. “Upon perusal of documents filed on records and respondent having not filed their rebuttal, despite an opportunity having been provided for them to do so, the NAB allows the appeal to succeed.
“The appellant’s letter of suspension of 29th July 2018 is hereby declared irregular and is set aside. The appellant is hereby restored to his full union membership rights and regional chairmanship effective 22nd February 2019,” said NAB chairperson Ruth Khupe in her judgement.
The NAB stated in its findings that Monaiwa’s right to fully belong to a union and participate in union activities is jeopardised due to the suspension. It further stated that according tot Article 47.4 of BOPEU Constitution the president has no power to unilaterally suspend a member.
“The president can only suspend a member once there is jurisdictional trigger from NEC to commence disciplinary proceedings against a member. Once there has been such commencement then and only then the president can suspend such a member. “The power to commence disciplinary proceedings against a member is vested on the NEC only, which is when a principle of delegatus protestas would be applicable to the president.
In this instant case, the appellant and other NEC members were suspended consequent to a discussion surrounding the conduct of the president. Therefore, the president was conflicted in this matter,” said Khupe adding that this is contrary to the principle of natural justice.
NAB stated that notably the suspension was done merely two days to the issuance of the state of emergency meeting by the 1st Deputy President. The action of the president according to the NAB is ultra-vires since she acted against the constitutional provision.
According to the background of the matter on the 28th July 2018, the NEC of BOPEU convened a meeting at Cresta Lodge in Gaborone; whereat 19 members of the NEC were present except one
The NEC comprised of 20 members. Consequent to the BOPEU President and Treasurer General being conflicted in issues discussed, they were asked to recuse themselves temporarily from the proceedings. The 1st Deputy President-Bargaining Martin Gabobake chaired the meeting. He later supposedly adjourned the meeting by declaring a state of emergency
Monaiwa is of the view that Gabobake had acted beyond his power and mandate in declaring a state of emergency hence this was unconstitutional. During the meeting, a resolution was passed suspending five (5) National Office Bearers (NOB) being Mogwera, Gabobake, Tlhabologo Galekhutle, Topias Marenga and Kethapeleng Karabo. On the 30th July 2018 Mogwera suspended all NEC members who participated in the meeting that passed the resolution.
Botswana Public Employees Union (BOPEU), President Masego Mogwera’s led National Office Bearers (NOB) have been accused of possibly embezzling huge funds from the union.
The legal battle has pitted BOPEU as 1st Applicant followed by Ogaufi Masame, Zibani Philemon, Mosalagae Tlhako and Motswaledi Monaiwa against NOB members being union President Masego Mogwera as 1st Respondent followed by Tlhabologo Galekhutle (Treasurer), Martin Gabobake (1st Deputy President), Topias Marenga (General Secretary) and Ketlhapelang Karabo (Deputy General Secretary).
Following a heated National Executive Committee (NEC) meeting last month at Cresta Lodge in Gaborone, Mogwera and team were suspended pending investigation while Philemon was subsequently appointed acting president.
Mogwera’s team retaliated by declaring a state of emergency and suspended Philemon and crew. NOB members are also part of the NEC.
On the 1st August 2018, Applicants approached the Court on urgency mainly to: declare as lawful the meeting of the National Executive Committee (“NEC”) held on Saturday 28 July 2018 (the “Meeting”) at which Respondents were suspended pending investigation and possible disciplinary action; restrain the Respondents from holding themselves as rightful governing officials of BOPEU and evicting them out of the premises of BOPEU as well as setting aside the declaration of state of emergency made by Gabobake and setting aside the suspension of Masame, Philemon, Tlhako, Monaiwa by Mogwera. Lobatse High Court is today (Friday) scheduled to make a ruling on the urgency of the matter before merits of the case could be argued.
According to the head of arguments filed before court seen by this publication, Philemon and team reveal that they discovered during the meeting that the 2nd to 5th Respondents were earning salaries from BOPEU without the approval of the National General Council (NGC) or Central Executive Committee (CEC), this being in violation of Article 53.2 of the BOPEU Constitution.
“Consequently in the NEC’s view there was a need to look into a case of possible embezzlement or misappropriation of huge funds of the Union. This kind of breach of the Constitution of the Union amounts to serious misconduct under Article 48.1.2 of the Constitution of the Union. The NEC at the meeting found it necessary and in the interest of the Union to suspend these Respondents pending an investigation and possible disciplinary action as provided for under Article 47.4 of the Constitution of the Union.
In terms of Article 53.1 of the Constitution of the Union, remuneration of seconded office bearers will be determined by the NGC or CEC as a recommendation from the Finance Committee. The Respondents maintain that their remuneration was approved,” read the court papers.
Regarding the alleged chaos of the last month meeting, the Applicants' contention is that discussions were very cordial during the meeting. It is argued that an audio recording reflects that the meeting was an orderly meeting. They posited that what is admitted is that there were divergent views from the Respondents and the Applicants.
“The Respondents have an original copy of the recording, it is for them to challenge the veracity and/or authenticity of the recording and its transcription by Applicants. This recording is a relevant piece of evidence of what transpired at the meeting especially in so far as it relates to the demeanour of the meeting. The allegations of chaos or rowdiness during the meeting have not been particularised. The Respondents make general averments without explaining the disorder.”
The President of Botswana Public Employees Union (BOPEU), Masego Mogwera has said that contrary to finance minister Kenneth Matambo’s assertions, job creation is indeed the responsibility of government.
In his 2017/18 budget presentation this week Monday, Finance and Economic Development minister Matambo said, “with regard to employment creation, it is important to clarify that the principal role of Government is not to create jobs directly, but to provide a conducive macroeconomic environment to facilitate the development of the private sector.” Mogwera said BOPEU vehemently rejects this proposition and characterises it as an abdication of state responsibility.
She told members of the Press that the latest stance by government on job creation violates the principle of decent work which pursues employment creation as one of its priority areas.
Last year when presenting the budget for 2016/17, the Minister conceded that unemployment, especially among the youth, is one of the development challenges facing this country and to address this, “government has resolved to, among others, use its spending power to boost economic growth and create jobs in the country.” Matambo said at the time that in addition to seeking value for money in spending government budget, efforts will be made to “ensure that such expenditure, whether under recurrent or development budget, contributes to job creation in the country”.
He added, “Some of the economic activities with potential for creating employment opportunities, which government will be undertaking during 2016/17 include; infrastructure backlog eradication, road networks and maintenance, wildlife and tourism initiatives, continued implementation of EDD initiatives, creation of Special Economic Zones, as well as regulatory reforms and improving efficiency.”
Mogwera said as BOPEU they concur that government should create a conducive environment for the private sector to create employment. “However we are of the view that Government has a direct responsibility in job creation without necessarily ballooning the wage bill by identifying strategic sectors such as tourism and mining with a potential for employment creation,” she said adding that the government should retract the statement and reconsider its position.
“The 2017/18 budget speech statement on the role of government in job creation and the 2016/17 budget speech employment creation strategies are a big contradiction,” she said.