The Lobatse High Court judge Mercy Garekwe has dismissed with ‘punitive costs’ an application by six members of the Botswana Public Employees Union (BOPEU).
The disgruntled members had taken the union president, Masego Mogwera and her national executive committee (NEC) to court alleging fraudulent misuse of funds and the union’s office.
The six members who don’t form part of the interim committee that has been at war with the NEC filed an urgent application on behalf of union members seeking the permanent removal of Mogwera and her team. They include Carthage Modisane, Patricia Bakwadi, Bakang Moreri, Mmoloki Matlho, Lentswe Sokwane and Tompilane Mokolase.
In her judgement delivered on Friday, Garekwe dealt with two points in limine, urgency and locus standi, stating from the onset that the application is unmerited and stands to be dismissed on all points. When dealing with the point of urgency, she said some of the averments made by the applicants against the respondents border on defamation of character.
She said the applicants have failed dismally to meet the requirements of Order 12 Rule 12 (2) as they have failed to explicitly aver reasons why they cannot be afforded substantial redress at a hearing in due course in addition to failing to set forth circumstances they aver render the matter urgent.
Garekwe continued to explain that the applicants’ averment that there is no guarantee that the respondents will pay back the money if it is left to balloon because they might be bankrupt or insolvent borders on defamation as it is not based on the respondents’ financial standing.
“It is highly speculative, has no factual or legal basis and it borders on defamation of character as it imputes elements of financial bankruptcy, impropriety and imprudence on the persons of 1st and 2nd respondents,” she said.
She also described as fatal an attempt by the applicants to attempt to find prejudice on the fact of the dates of the National General Congress (NGC) and the likelihood of their preferred candidates, who are under suspension not being able to contest positions of the National Executive Committee (NEC).
She said that if the applicants are concerned that their preferred candidates, who are under suspension, may not be able to contest elections, the point they make becomes more ludicrous. “I fail to appreciate the point of urgency they seek to make under this point.
Their preferred candidates are facing disciplinary proceedings and this has nothing to do with the NGC nor does the business of BOPEU come to a standstill on account of
In a nutshell, the applicants have failed to justify urgency, which if justified would mandate the court to consider abridging its normal rules and time limits and entertaining this matter on urgency,” she added.
On the point of locus standi, Justice Garekwe said the description the applicants made to allege and demonstrate locus standi that they are all public servants and as such full members of BOPEU in good and regular standing falls short of demonstrating that they are suited to have brought the proceedings. She said this is so because first, it is common course that not all public servants are members of unions, let alone BOPEU. Moreover, she added, it is a known fact that the court takes judicial notice of the fact that; there are other unions that have been recognised by the government as the employer who represent different sectors of public servants other than BOPEU.
“The applicants make a further bald and unsubstantiated and in fact an incorrect averment that their status as public servants automatically qualifies them to be members of BOPEU. In a nutshell, the applicants have no locus standi to have brought this application, as they have failed to demonstrate same in their founding papers.
Without locus standi, the court cannot proceed to interrogate the merits of the matter as the proceedings and papers are deemed invalid,” she said.
The relief they sought amongst others, was that the respondents be interdicted from unlawfully and without authority using the property and spending the funds of BOPEU against the resolution of NEC that Mogwera and Tlhabologo Galekhutle as treasurer general of BOPEU stop fraudulent misuse of BOPEU funds.
Moreover, the applicants wanted the respondents to be interdicted and prohibited from occupying office in BOPEU with effect from July 28, 2018.
Also, they wanted an order forcing the respondents to surrender every asset whether it be books of accounts or any asset of whatever nature or form belonging to BOPEU, cease from representing and acting on behalf of BOPEU, interdicted from calling any press conferences, meetings including a NGC and Special General Congress (SGC) on behalf of BOPEU.
The disgruntled members also wanted the suspended committee interdicted from signing any document and negotiable instruments on behalf of BOPEU lastly from authorising and making any payments from any bank account belonging to the union.