How Butale survived ouster
Innocent Selatlhwa | Monday May 1, 2023 06:00
This comes after the party’s secretary-general Tshekedi Khama’s efforts to fight his suspension by alleging that Butale had resigned from the party and could not suspend him hit a snag.
On April 13, Butale alongside other national executive committee (NEC) members, being Reitumetse Aphiri and Ford Moiteela, brought an application on a certificate of urgency against Tshekedi, Vuyo Notha, Robert Mariba, Prince Bosilong, Ian Khama, Motswasele Kganetso, Dr Kolaatamo Malefho, James Kgalajwe, and Moiseraela Goya, listed as from first to ninth respondents.
Butale’s case
Butale stated in his affidavit that on March 20, 2023, there was an NEC meeting held at Staybridge Hotel in Gaborone whose part of the agenda was to discuss discipline within the party. He says the item sparked conflicts and tempers flared within the meeting. That as emotions escalated, members began to threaten violence against one another. Butale went on and stated that due to the commotion and things getting out of control, he abruptly ended the meeting and postponed it sine die.
Butale further stated that amidst the interchange that ensued after he adjourned the meeting, three members of the party's executive committee, being himself, Samson Moyo Guma, and Thatayaone Serema, threatened to resign from the party.
That, while Guma and Serema the next day (March 21, 2023) went ahead and resigned, he did not, adding that he threatened to resign solely on the spur of the moment and based on the anarchy and ill-discipline that persisted within the party and did not then proceed to issue a letter of resignation as the other two officials did. He says he continued discharging his duties as the president of the BPF, which included suspending the key actors in the anarchy, on March 28, 2023. The individuals that are suspended are Tshekedi, Notha, Mariba and Bosilong.
On April 5, 2023, Butale called and held an NEC meeting, special in nature, for purposes of dealing with the emergency suspensions of the first to fourth respondents, of March 28, 2023, which he had carried out. Butale said the suspensions were duly confirmed at the said meeting. It is alleged by Butale that having been informed of the meeting of April 5, 2023, Tshekedi reacted by letter dated April 7, 2023, accusing him of having held what he called an unconstitutional meeting, on April 5, 2023.
Tshekedi reiterated his previous assertion that at the national executive committee meeting of March 20, 2023, Butale pronounced his resignation from the party and that in accordance with Clause 7 of the BPF constitution, Butale is no longer a member of the BPF, let alone its president. The applicants say the bringing of the application on urgency was triggered by the correspondence that was issued by Notha on April 6, 2023, in which it was indicated that there would be preparation for a congress for which regions were invited to convene in Selebi-Phikwe on April 15, 2023. Moreover, Notha announced a parallel national conference to be held at Selebi-Phikwe, from April 29, 2023, to May 1, 2023, despite the NEC having already slated the conference for the same dates in Gaborone. The applicants alleged that the meeting of April 15, 2023, in Selebi-Phikwe was set by rogue suspended BPF members who hold no authority to do so, yet the public is left vulnerable to the propaganda of unlawful actors.
Respondents case not watertight
The application was opposed by the respondents represented by Thabiso Tafila Attorneys. The sum and substance of the Respondents' defence is that Butale is not the president of the BPF as he has resigned as a member of the BPF, and, consequently, as the president of the party. Furthermore, that he could not exercise any constitutional powers over the BPF or members of the BPF. The respondents countered, therefore, that the suspensions of the first to fourth respondents are invalid and null and void. Notha, in his affidavit, averred that at the March 20, 2023 meeting there was a heated discussion regarding whether the party should hold a national conference and congress or a congress and extra ordinary congress. That still at the meeting Butale complained that two NEC members had, at a party event at Letlhakane, behaved in a manner he did not like. He wanted action to be taken against these members and he threatened that if no action was taken he was going to resign from the party that very day. Further, that, having realised that the committee members were reluctant to decide on Notha and Maribe, he burst out of the meeting uttering the words "salang le partynyana e ya lona ya Bangwato" (you can remain with your Bangwato small party) and further said to one member "Bosilong, a re tsamaye re tlogele batho ba le party ya bone" (Bosilong, let us go and leave these people with their party)". Notha says that he left with Moyo, Aphiri, Serema and members of the committee who were left at the meeting and decided to close the meeting. However, he has not annexed to his affidavit minutes to that effect.
Justice Phuthego’s judgment
“The parties are in agreement that this matter revolves around whether or not Butale remained the president of the BPF, following his bursting out of the meeting of 20 March 2023. This is the central issue, whose resolution will have a knock-on effect on all the other remaining issues. Butale says he could not have resigned from the party as he only issued a threat to resign and did not follow up the threat by giving a written notice of resignation, purportedly as required by Clause 11.5 of the BPF constitution. The respondents, on the other hand, argue that Butale is mistaken as a resignation by a BPF member can only be under Clause 7.1 of the BPF's constitution and that one does not need to pronounce one's resignation by a letter, as a verbal pronouncement of the resignation is enough,” Justice Matlhogonolo Phuthego of Lobatse High Court who presided over the matter stated. In his judgment, Phuthego stated that the clauses of the BPF's constitution serve different purposes. Clause 11.5 governs the resignation of BPF's members who had been elected or appointed to BPF's office. Such a member, if he or she wants to resign from the office, has to give a 30-day notice in writing to the committee to which he or she had been elected or appointed. Clause 7.1 on the other hand governs the resignation of any person of the BPF from the party. It applies across the board. It does not distinguish between ordinary members and office bearers of the party. “The challenge with regard to Clause 7.1, however, is that where a member terminates his or her membership by resigning, it does not shed light on how that member has to communicate his or her resignation. In my judgement whether or not the member has resigned from the party is a question of fact that should be resolved by looking at the circumstances that prevailed at the time he is alleged to have resigned and his or her conduct thereafter", said the judge. "In my judgement, the applicants have been able to demonstrate on a balance of probabilities that an uncontrollable disorder, which was of such a nature as to endanger life, peace and safety, as a knife, a lethal weapon, was used, erupted at the meeting of 20 March 2023. I hold that it was reasonable in those circumstances for Butale to quell the escalating disturbances by abruptly ending the meeting,” Phuthego said. Justice Phuthego also said Butale, after the ill-fated meeting of March 20, 2023, continued to carry out his duties as the president of the BPF. “Looking at the evidence it cannot be said that the respondents have countered the applicants' case on a balance of probabilities that Butale did not resign from the BPF on March 20, 2023. I find that whatever words Butale uttered that might have been understood to amount to threatening to resign from the party or outright resignation from the party, were uttered amidst a heated commotion, when tempers were high, and therefore cannot be regarded as adequate proof that Butale resigned from the party on March 20, 2023, more so that a few days thereafter he proceeded with the carrying out of his duties as the president of the BPF. After he suspended the first to fourth respondents he called a meeting on April 5, 2023, for the NEC to close off the meeting of March 20, 2023, and for the members to deliberate on the agenda items of a new meeting. I have no doubt in my mind that if it was every BPF member's understanding that Butale had resigned from the party on March 20, 2023, members of the NEC would not have allowed him to call or attend the meeting of April 5, 2023,” Phuthego
The Order
On claim A
That the respondents are hereby interdicted and/or restrained from calling or holding any convocation or meeting without the calling of same by the first applicant, per the Botswana Patriotic Front Constitution. That the respondents are hereby interdicted and/or restrained from disseminating any communication under the official forums and colours of the Botswana Patriotic Front without authorisation from the first applicant; The respondents are hereby interdicted and/or restrained from issuing and/or publishing any statement on behalf of the Botswana Patriotic Front; The respondents are hereby interdicted and/or restrained from making use of or attempting to make use of any of the Botswana Patriotic Front's property, including, but not limited to, email(s), online and social media platforms, letterheads and/or stationery; The respondents are hereby ordered to hand over the password and administration rights of media platforms such as the Botswana Patriotic Front's Facebook page; and The respondents are hereby interdicted and/or restrained from obstructing any member of the Botswana Patriotic Front's National Executive Committee from performing their functions
Claim B
An order is hereby issued declaring that the first applicant is the lawful President of the Botswana Patriotic Front; An order is hereby issued declaring that the first to fourth respondents' suspensions on March 28, 2023, and confirmed at a meeting of the National Executive Committee held on April 5, 2023, are lawful and valid; An order is hereby issued declaring and directing that any and all decisions purportedly taken by either and/or all the respondents post their suspensions of March 28, 2023, are unlawful and thereby set aside An order is hereby issued directing the respondents to be interdicted and/or restrained in the following terms; ''The first to fourth respondents are hereby interdicted and/or restrained from purporting to be the Secretary-General, Deputy Secretary-General, Deputy Treasurer and Secretary Political Education, respectively, of the Botswana Patriotic Front; and all the respondents are hereby interdicted and/or restrained from purporting to represent the Botswana Patriotic Front in any form or manner, without lawful National Executive Committee authorisation as led by the first applicant", said Phuthego. Costs were awarded against the respondents, jointly and severally, the one paying the others to be absolved, he added.