Justice Singh Walia of the Court of Appeal has directed that the power struggle between Botswana Public Employees Union (BOPEU) National Executive Committee (NEC) be heard today (Friday).
Justice Walia directed through a letter dated August 23rd 2018 that the parties file their papers starting Monday this week until Thursday. The legal battle has pitted BOPEU as 1st Applicant followed by Ogaufi Masame, Zibani Philemon, Mosalagae Tlhako and Motswaledi Monaiwa against 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).
Philemon and team are appealing a decision by Lobatse High Court Judge Godfrey Nthomiwa dismissing their urgent application to remove Mogwera and crew from office and uphold their suspension. Philemon and team have since filed their notice of motion to appeal with the court. In the notice of motion, the applicants want the decision of the court a quo dated the 17th August 2018, dismissing the application of the Appellants with costs be set aside.
They want it to be replaced with a rule nisi calling upon all the Respondents to show cause why an order should not be made declaring the decision of the NEC made at the meeting of the 28th July 2018, suspending Mogwera and team pending investigation and possible disciplinary action for unauthorised secondment remuneration.
Another requested order is for court to direct Mogwera and team to vacate BOPEU premises and an order directing and authorising a deputy sheriff of the court with the assistance of the police to escort them out of BOPEU premises in the event they fail to comply.
In the grounds of appeal papers seen by this publication they argue that the Judge erred by holding that the Appellant has failed to establish the requisites of urgency whereas the same were established.
“The matter is urgent because there is a fierce struggle over who is legitimate to govern the Union, due to the fact that there is being suspension and counter suspension by members of the NEC of BOPEU,” they argue.
Philemon, who is a member of the NEC of BOPEU by virtue of his position as the Gaborone Region 3 Regional Chairperson, was appointed as the acting president, Ogaufi Masame as the acting 1st Deputy President, Eronah Kolobetso as the acting 2nd Deputy President, Kebonyemodisa Watota as the acting general secretary and Mosalagae Tlhako as the acting Treasurer General and Emmanuel Tlale as the acting deputy secretary general.
Botswana Public Employees Union (BOPEU) leadership team that lost its case against union President Masego Mogwera has filed appeal papers with the court, Botswana Guardian has learnt.
The factions within the union leadership have resulted in a legal battle which has pitted BOPEU as 1st Applicant followed by Ogaufi Masame, Zibani Philemon, Mosalagae Tlhako and Motswaledi Monaiwa against National Office Bearers (NOB) members being union President 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 National Executive Committee (NEC) meeting last month at Cresta Lodge in Gaborone, Mogwera and team were suspended pending investigation. Philemon was subsequently appointed acting president. Mogwera’s team in turn declared a state of emergency and suspended Philemon and crew. NOB members are also part of the NEC. Philemon and crew approached the court on urgency to hear the matter.
Sources close to the development have revealed that Philemon’s team has been working round the clock with their lawyers since last week Friday’s judgment to appeal the decision by Lobatse High Court Judge, Godfrey Nthomiwa who agreed with Mogwera that the matter brought before him to forcibly remove her and the NEC from office was not urgent and that it was not brought properly before him.
The judge dismissed the application on urgency despite the interim committee having indicated that the union president was suspended in order for investigations to be carried without interference. According to information gathered by this publication, Mogwera and team were to be served with appeal papers between Wednesday and yesterday (Thursday).
Speaking to this publication Philemon said they are still weighing their options. He indicated that their lawyers are still scrutinising the judgment and would advise accordingly. Philemon explained that they still believe that they are the legitimate leadership because a lawfully constituted meeting had suspended Mogwera and team.
He said if not attended the matter might bring more harm to the union than it could ever be imagined. Philemon said all they want is to protect the integrity of ‘the union of choice’.In his judgment Justice Nthomiwa indicated that the matter is not urgent and the applicants are not entitled to the relief of the interim interdict they sought.
He explained that the matter is not properly brought before court by way of motion proceedings instead of being brought by way of action.Nthomiwa said because of the suspension of the applicants, they could not bring proceedings on behalf of BOPEU in so far as the change made in the composition of the NEC was in violation of legal framework governing Trade Unions.
He said it was on that basis that the applicants lacked the necessary legal standing to bring the current proceedings for and on behalf of BOPEU. The court also declined to have an audio recording from the Cresta meeting as part of the proceedings.Mogwera and team were suspended for failure to observe Articles 53.1 and 53.2 of the Union Constitution respectively, which speak of the secondment and remuneration of office bearers (president and treasurer general) as well as sanctioning the implementation of the new BOPEU structure.
They refused to vacate their seats saying only the congress can remove them. That is when Mogwera declared a state of emergency and suspended the interim committee, forcing them to take the legal route. Philemon and team are likely to face a disciplinary hearing anytime soon, however he told Botswana Guardian that they have not yet received any letters warning them about any pending disciplinary hearing. “We are waiting for such letters and they know where to find us if they want to take that route,” he stated.