Constitutional immunity slams door on boot aiming Motshegwa
Goitsemodimo Kaelo | Tuesday November 8, 2022 06:00
The union says Motshegwa will continue at the helm until the end of his contract as the court’s decision has been overtaken by events.
Motshegwa has been embroiled in a legal battle against a section of the union leadership that wanted him removed from his position following his contract extension in 2020.
The union’s first vice president, Nicholas Mothelesi and treasurer-general, Baone Seloka had dragged BLLAHWU, Motshegwa, and BLLAHWU president, Thatayaone Kesebonye to court seeking to have his (Motshegwa) employment contract declared unlawful, nullified and terminated immediately. While they had lost the first round at the High Court, which ruled that his appointment was in order in 2021, the duo appealed to the CoA.
On Friday, a three CoA justice bench comprising Mercy Garekwe, Isaac Lesetedi and Lakhvinder Singh Walia overturned the decision of the High Court and declared the contract extension concluded between Motshegwa and the union on June 23, 2020, as unlawful therefore null and void.
“It is hereby declared that the decision of the central executive committee (CEC) of the first Respondent to renew the contract of employment of the second Respondent for a period of five years commencing July 1, 2020, to June 30, 2025, is ultra vires the powers of the central executive committee and consequently null and void,” read the judgement in part.
The three justices were in agreement that keeping the secretary-general in position for two terms of three years each was in contravention of the union’s constitution. “To therefore seek to extend the second respondent’s term even further by giving him a five-year contract is not supported by the dictates of the union’s December 2015 constitution,” reasoned the CoA justices.
They said the five-year term contract extension runs foul of article 17.1.2, which stipulates that a CEC office bearer shall hold office for three years. However, the union CoA judgment is “an exercise in futility or an academic judgement destined for history dustbin or archives”. The union said this is so because the union’s 2015 judgement, which the CoA relied on, has been repealed and replaced by a 2021 constitution.
The union president, Kesebonye said following that constitutional amendment, a new contract was entered into between the union and Motshegwa in December 2021, therefore rendering the June 2020 employment contract invalid. He explained that under the amended constitution, the SG is appointed by the CEC not elected. “Article 25.5.9 of the December 2021 stipulates clearly that the secretary-general shall be appointed by the CEC for a term not less than five years subject to renewal,” highlighted Kesebonye.
Kesebonye said Motshegwa remains at the helm as he enjoys immunity emanating from the new contract validated by their December 2021 constitution. Motshegwa has not enjoyed an easy tenure at the labour union since his contract was extended back in 2020. It is said that the union’s leadership is divided over the decision to extend his contract.