The Court of Appeal on Friday dismissed a matter brought by Botswana Public Employees Union (BOPEU) in which the union wanted an earlier application to be considered on expedited basis.
Olefile Monakwe, BOPEU President and Kaboyaone Sedimo, Secretary General are challenging Justice Mercy Garekwe’s decision to restore Masego Mogwera and Topias Marenga into office as president and secretary-general of BOPEU respectively.
In essence, Monakwe had moved two Court of Appeal applications — the first one challenging Garekwe’s ruling, the second one being an application for expediting the appeal, as well as an application for consolidation of all his appeals.
Moreover, he had moved to seek a stay of execution in Justice Garekwe’s ruling. In the appeal against Garekewe’s judgement and the application for consolidation of his appeal cases he cited himself as the president of BOPEU.
In his ruling, Justice Lesetedi indicated that BOPEU has for some years now have been plagued by an internal fight between two factions.
He further ruled that because as a juristic person it has no mind or limbs of its own, the trade union acts through its duly appointed or elected representatives in their capacities as such, they acting validly in accordance with its constitution.
Thus, in litigation, its lawful representatives must authorise the institution of the legal proceedings and the power of attorney signed by a lawfully authorised representative.
“The applicant’s extract of the resolution was signed by Monakwe purportedly in his capacity as the President of BOPEU. The extract does not say who attended the meeting of the National Executive Committee. It was necessary for the appellant in a case where the resolution was challenged, to show that it is upon the one relying upon that resolution to prove its validity,” read the ruling.
Moreover, Lesetedi indicated that there is no presumption of regularity in a case such as this. Once an objection was raised as to the validity of the resolution and, as here, by parties who are office holders of the decision-making body which the resolution is attributed, an onus lay upon the applicant to disclose the attendees of the said National Executive Committee meeting who passed that resolution.
“BOPEU’s constitution demonstrates that the power to preside over the meetings of the National Executive Committee and responsibility for the proper conduct of all such members is bestowed upon the President of BOPEU. So is the power to sign legal documents on behalf of the Union,” the court said.
According to Lesetedi, the reply to challenge on the validity of the resolution and on the prayer of costs by the respondents was laconic.
“It was that save to deny that Mogwera is the President of BOPEU and also deny that the contents of her affidavit were true and correct, no issue arose. The applicant therefore failed in its replying affidavit, to prove the validity of the resolution. In the absence of a valid authorisation to do so, Monakwe could therefore not purport to certify an extract of a resolution of BOPEU in his capacity as BOPEU’s President nor could he certify it in a different capacity without disclosing the authority upon which such certification is made,” the court said.
It was also indicated in the ruling that the applicant was not properly before the Court.
“What is evident is that Monakwe whose powers of control over BOPEU were removed by the judgement of the court a quo appealed against has by this application paraded BOPEU as the appellant when he is the face behind the mask, using BOPEU as a cat’s paw to claw back the power that he has lost through the judgement of the 7th May 2021.”
Judge Lesetedi pointed out in his ruling that it was Monakwe who through his stewardship of BOPEU oversaw the decisions which were made in BOPEU’s name, whether the courts a quo were correct in making the orders they did, for purposes of the application, not a consideration.
“Monakwe and his faction are the immediate beneficiaries if the reliefs are granted and will conversely suffer the immediate practical prejudice if the application is unsuccessful. On the other hand, BOPEU continues to operate under either of the two factions as quote rightly acknowledged by the applicant’s counsel,” he said.
It was on those grounds that Justice Lesetedi struck out the application indicating that it is unnecessary to discuss the other points of limine.
“It is convenient however to note in passing that even on the merits the application did not stand much out of chance to succeed. The two factions have brought considerable litigation to the courts since their acrimony arose. Many of the litigations were brought on urgency.”
Battling out in court, Mogwera’s Attorney Leburu vigorously attacked the claim made by Monakwe arguing that he had no legal standing to bring the applications as a BOPEU president since he had lost all powers that had been vested on him as soon as Gearekwe’s judgement was passed.
Last year a panel of three judges also attested to this regarding Monakwe’s fate as a usurper of power.
Leburu had argued in court before the ruling was made that by continuing to cite himself as president, Monakwe was contemptuous and his actions were now tantamounyt to self-help. “it seems like Monakwe has awarded himself ‘the stay’ even before the courts of law could decide his fate.”
Botswana Police Service (BPS) has indicated concern about the ongoing trend where the general public falls victim to criminals purporting to be police officers.
According to BPS Assistant Commissioner, Dipheko Motube, the criminals target individuals at shopping malls and Automated Teller Machines (ATMs) where upon approaching the unsuspecting individual the criminals would pretend to have picked a substantial amount of money and they would make a proposal to the victims that the money is counted and shared in an isolated place.
“On the way, as they stop at the isolated place, they would start to count and sharing of the money, a criminal syndicate claiming to be Criminal Investigation Department (CID) officer investigating a case of stolen money will approach them,” said Motube in a statement.
The Commissioner indicated that the fake police officers would instruct the victims to hand over all the cash they have in their possession, including bank cards and Personal Identification Number (PIN), the perpetrators would then proceed to withdraw money from the victim’s bank account.
Motube also revealed that they are also investigating a case in which a 69 year old Motswana woman from Molepolole- who is a victim of the scam- lost over P62 000 last week Friday to the said perpetrators.
“The Criminal syndicate introduced themselves as CID officers investigating a case of robbery where a man accompanying the woman was the suspect.’’
They subsequently went to the woman’s place and took cash amounting to over P12 000 and further swindled amount of P50 000 from the woman’s bank account under the pretext of the further investigations.
In addition, Motube said they are currently investigating the matter and therefore warned the public to be vigilant of such characters and further reminds the public that no police officer would ask for bank cards and PINs during the investigations.
Botswana Congress Party (BCP) leadership walked out of Umbrella for Democratic Change (UDC) National Executive Committee (NEC) meeting this week on account of being targeted by other cooperating partners.
UDC meet for the first time since 2020 after previous futile attempts, but the meeting turned into a circus after other members of the executive pushed for BCP to explain its role in media statements that disparate either UDC and/or contracting parties.
The Director General of the Directorate on Corruption and Economic Crimes (DCEC), Tymon Katlholo’s spirited fight against the contentious transfers of his management team has forced the Office of the President to rescind the controversial decision. However, some insiders suggest that the reversal of the transfers may have left some interested parties with bruised egos and nursing red wounds.
The transfers were seen by observers as a badly calculated move to emasculate the DCEC which is seen as defiant against certain objectionable objectives by certain law enforcement agencies – who are proven decisionists with very little regard for the law and principle.