Motshegwa prevails against detractors
Goitsemodimo Kaelo | Tuesday April 23, 2024 09:31
Motshegwa’s position at the union has been under siege since his contract was extended back in 2020.
It is said that the union's leadership was divided over the decision to extend his contract, which led to some members challenging his appointment through the courts.
The Court of Appeal (CoA) on Friday finally put the matter to bed when it dismissed an appeal by Baone Christopher Seloka and Letsatsi Modise, who had approached the apex court seeking to overturn a decision of the High Court which dismissed their application.
The High Court had held that their application was a review application disguised as an application for declaratory relief. The duo argued that the lower court misinterpreted the applicants' application by determining that it had no connection and/or was not based on the court's decision dated November 4, 2022.
They also wanted the CoA to determine whether the High Court erred in holding that the applicant was a review application disguised as a declarator and ought to have been brought in terms of Order 61 of the rules of the High Court within the time confines of the said order. While Motshegwa, who is also the Botswana National Front (BNF) secretary-general, had prevailed in previous attempts, he subsequently lost at the CoA on November 4, 2022, a decision which the union dismissed as just an "academic exercise because the matter was overtaken by events".
Despite that decision, Motshegwa has remained at the helm of the union. The duo’s application was premised on the CoA decision of November 4, 2022, which they believe rendered all the union's decisions null and void, including the one to repeal the union's constitution of 2015 and replace it with the one adopted at the special Congress in 2021 and subsequently extending Motshegwa's contract. The appellants claimed that Motshegwa and the union president, Thatayaone Kesebonye, have shown total disregard for the CoA decision by continuing to occupy office illegally.
They also stressed that allowing such conduct would render the courts a mockery. The duo argued that their expulsions were baseless, made contrary to the union's constitution and principles of natural justice, and were therefore invalid. However, the CoA bench comprising Justices Leatile Dambe, Singh Walia and Mercy Garekwe dismissed the duo’s appeal with costs and upheld the decision of the High Court. When delivering the judgment, Justice Dambe said it cannot be said the decision of the judge a quo was injudicially exercised.
Dambe said the appellants’ reliance on the decision of the CoA of November 4, 2022, was thoroughly misconceived because in that case, the highest court annulled the decision of the Central Executive Committee (CEC) renewing the contracts of employment of some office bearers of the union on the ground that it was ultra vires the powers of the CEC. “That decision was based on the 2015 constitution and the court had held that the election of the secretary general could only be conducted by the Union Congress and not the CEC.
“This means that the decision which the counsel of the appellants sought to rely upon had no bearing on the issues raised in the current appeal,” read the judgment. The three justices also judged that the judge below correctly observed that there was no reason that the Appellants could not challenge the decision to amend the constitution and Motshegwa’s appointment at the time of the occurrence even while awaiting the outcome of the appeal in the other matter. They said the judge below properly found that the declarators sought would be academic with no practical effect as the appellants were no longer members of the union. “The judge was also right in holding that the spirit behind the controversy between the parties is the fight of the 3rd respondent (union) and that would not be resolved through the reliefs sought,” the CoA justices concluded.