BFTU loses with costs

Goitsemodimo Kaelo | Monday August 15, 2022 06:00

In a matter that was seemingly overtaken by time since Gabobake is no longer at the helm of the federation, BFTU had wanted the CoA to clarify some of the decisions that affected its constitution when Gabobake was reinstated by the High Court.

However, the CoA took a swipe at the federation for lack of understanding of its own constitution. The legal tussle between the two parties emanated from Gabobake’s removal as BFTU president early last year after the federation received his recall letter from its affiliate the Botswana Public Employees Union (BOPEU) as the latter's factional wars spilled over to the federation.

Gabobake then took the matter to court challenging his removal and subsequently Justice Michael Leburu of the Gaborone High Court reinstated him. Aggrieved by Leburu’s decision, BFTU then lodged an appeal at the CoA challenging his reinstatement.

Among others, the federation challenged the High Court’s findings on the procedural propriety of the Executive Board meeting, the respondent’s right to a hearing before his recall, and whether the federation’s constitution permitted the recall on which the respondent was removed from office.

However, at the time the appeal was heard, the matter was already overtaken by events as Gabobake had since left the union, as he did not stand for elections, but the case against him proceeded as BFTU wanted the CoA to clarify some of Leburu’s decisions. Last Friday, a three-judge CoA bench including Justice Isaac Lesetedi and acting justices, Tshepo Motswagole and Godfrey Radijeng, dismissed BFTU’s appeal with costs. The judges agreed that there exists no power of recall when jurisdictional fact is considered under circumstances.

It is stated that Article 18.9.1 contemplates the cessation of the office holding of an office bearer of certain facts such as suspension of a member, resignation, or expulsion by his or her union or when the union ceases to be an affiliate of the federation.

The judges found that the BOPEU letter, which recalled Gabobake, did not state any of the jurisdictional facts to warrant his recall. On another point, the CoA found that there was no constitutional provision that clothed both BOPEU and the federation with recall powers of a federation office bearer.

The CoA also found that every office bearer has a right to be heard before removal from office under any circumstances. The court said the federation has demonstrated lack of understating of its own constitution. “A right to be heard before an adverse decision is made is of fundamental importance to notions of fairness and natural justice,” reads part of CoA’s judgment.

The CoA judges also agreed that the High Court was right in holding that the Executive Board meeting that endorsed Gabobake’s recall was in violation of the provisions of the federation’s constitution and therefore invalid. “On those grounds alone, the appeal stands to be dismissed and costs to follow event,” stated the judgment in conclusion.