BFTU seeks constitutional clarity
Mpho Mokwape | Monday July 11, 2022 06:00
In what may seem like events were overturned by time since Gabobake is no longer the president, a move that sent the parties to court in the first place, the union will now focus on some of the decisions that affected the federation’s constitution when Gabobake was reinstated by the High Court.
The drama between the parties centred on that Gabobake was removed as BFTU president early last year after the union received a letter from its affiliate Botswana Public Employees Union (BOPEU) recalling him.
As a result, the then president took the matter to court challenging his removal and subsequently Justice Michael Leburu of the Gaborone High Court reinstated him. BFTU, then aggrieved by the decision, lodged an appeal at the Court of Appeal challenging his reinstatement but Gabobake has since left the union, as he did not stand for elections, but the case against him has been scheduled for July 14.
In a brief interview with the trade unions’ secretary-general, Thusang Butale, said the case will go ahead as scheduled as they were not happy with some decisions taken by the judge when delivering the judgement on the matter.
He explained that some of the decisions taken by the judge when reinstating the former president went against the constitution therefore, they would need clarity on that. “It may seem as if the case has been overturned by events as Gabobake is no longer the president, that is not the case because we were not only appealing his reinstatement.
There are many issues that would need to be clarified especially those issues that affected the federation’s constitution,” he said. Butale also said on those grounds they would want to hear the final say of the highest court on the matter to be able to understand what is required as per the trade unions’ constitution stipulates. At the backdrop of the case is that Gabobake had triumphed against the federation after the High Court nullified his removal from the BFTU presidency. Justice Leburu last year July set aside the decision of the BFTU executive board to remove Gabobake from the presidency and directed that he be immediately reinstated. Justice Leburu’s decision followed an application that was made by Gabobake, challenging the federation’s decision to remove him from the position.
Gabobake at the time had argued that the meeting that purportedly resolved to remove him as president, was not convened in terms of the BFTU constitution. He also argued that the BFTU constitution had no provision for a recall, which his removal letter made reference to. Gabobake became successful as Justice Leburu agreed with him that the federation’s decision was unprocedural because it was done without giving him an opportunity to be heard. Justice Leburu explained that contractually ordained and promised in the BFTU constitution that before an executive board member is removed, he/she shall be given an opportunity to show cause why he/she cannot be removed from the Board. “An act done contrary to the express contractual and or statutory promise or edict renders such an act unlawful and thus susceptible to be corrected and set aside,” he said.
However, the BFTU had contested that Gabobake was removed from his position pursuant to Article 18.9.1 of the federation’s constitution, as such he had no right to be heard. It also said that a right to be heard only applies when Article 18.9.4 is invoked.
But Justice Leburu disagreed pointing out that in his view, the provision appearing in Article 18.9 applies to the entire article therein and not only when Sub-article 18.9.4 is invoked as such.
He said the right to be heard before a prejudicial decision is taken, is expressly provided for in the respondents’ constitution. The said Article 18.9.1 states that a member of the executive board shall cease to be a member or any of the committees established under this constitution when such a member is suspended, resigns or is expelled or when his/her union ceases to be an affiliate of the federation for whatever reason.
Article 18.9.4 states that one also ceases to be a member when 50% plus one majority decision of the board, considers that his/her continued presence as a member of the board is prejudicial to the interests of the federation. The article provides that an opportunity has to be given to him/her to show cause why he/she cannot be removed from the board.
The judge also ruled that the meeting of the board that resolved to remove Gabobake from BFTU presidency was not convened in terms of the BFTU constitution. Justice Leburu said the decision to convene without the president, who is the leader of all BFTU structures, was fundamentally flawed. “For the reasons above, the decision of the respondent to remove the applicant as its president is tainted and laced with procedural irregularity and impropriety. The decision is therefore, pliable and liable to be set aside, as I hereby order,” he ordered in conclusion. Gabobake’s removal had emanated from factional wars at BOPEU between leaders Masego Mogwera and Olefile Monakwe.