BHC court defence crumbles as judge rejects legal mandate
Mpho Mokwape | Tuesday July 7, 2026 12:18
Justice Nthomiwa Nthomiwa of the Maun High Court made the determination last Friday in a case brought by Pogiso Thapelo, Richard Chilisa and Samantha Chabata, who are challenging their removal from the parastatal’s employ.
The three applicants want the court to declare that letters issued on June 19, 2026, titled 'Early Release from Contract of Employment', are unlawful and should be set aside.
Equally, they want the court to confirm that they are still employees of BHC and that they should be allowed to continue performing their duties without interference.
The urgent application had first been placed before the court on June 26, 2026, when a Rule Nisi was granted together with temporary orders stopping the implementation of the disputed employment decisions until the matter could return to court.
However, when the case came back, the hearing focused on a different issue. The court had to decide whether the lawyers representing the respondents had the legal authority to appear on behalf of BHC.
The dispute arose after another High Court decision in Gaborone suspended an earlier order that had temporarily allowed the minister responsible for BHC to exercise the powers of the corporation's dissolved board.
That earlier order had also allowed the Minister to delegate those powers and validate decisions made after the board was dissolved.
Justice Nthomiwa found that once the Gaborone court suspended that order, the Minister could no longer exercise the board's powers or ratify decisions that had already been made.
The judge said this had serious consequences for the authority claimed by the acting Chief Executive Officer (CEO).
'The minister was stripped of the powers earlier given by the Gaborone court of taking over the functions of the board,' Justice Nthomiwa said.
'It therefore follows that the corporation could not give any attorney any mandate to represent it.'
The court also found that because there was no functioning board, the acting CEO could not sign a board resolution on behalf of the Corporation.
Justice Nthomiwa said, 'The acting CEO has no authority to sign a resolution on behalf of the non-existent board.'
The court explained that under Botswana law, a corporation acts through its board of directors. Before lawyers can represent a company in court, they must receive authority through a proper board resolution followed by a power of attorney.
Without those documents, the corporation cannot properly instruct lawyers to act on its behalf.
The judge referred to previous court decisions, which have established that companies, unlike individuals, can only act through authorised representatives.
Although the corporation's representation failed, the court reached a different conclusion regarding the first respondent, Acting CEO Professor Selinah Busang.
Justice Nthomiwa found that Busang had personally signed a valid power of attorney when she appointed Kanjabanga and Associates to defend her.
The judge said she had every right to appoint lawyers in her personal capacity because she had been cited individually in the case.
'The first Respondent is properly represented by Kanjabanga and Associates as she gave them the mandate in her personal capacity,' the court ruled.
However, the same law firm cannot represent the corporation because no valid authority exists from the corporation itself.
Justice Nthomiwa stressed that this is especially important because BHC is a parastatal.
The judgment quoted the High Court Rules, which state: 'No Public company or parastatal may institute, defend or oppose any cause or appear before the court otherwise than by counsel.'
The court explained that counsel must still receive proper authority before appearing on behalf of such an institution.
As a result, the judge ruled that BHC is currently not represented in the proceedings.
The court ordered that the urgent application continue on July 8, 2026. However, the legal costs issue was reserved, with the judge directing that costs will be 'costs in the cause', meaning they will be decided after the outcome of the case.
The current ruling does not decide whether the employees were lawfully released from their contracts or not. Instead, it settles an important preliminary question on who has the legal authority to represent BHC whilst its board remains dissolved.
Meanwhile, the main dispute over the legality of the employees' termination will be determined when the case returns to court.