Time up at BOPEU - court rules
Monkagedi Gaothobogwe | Friday December 4, 2020 17:41
They decided on just one case which both factions and the court were in agreement will settle multiple court cases filed by the warring parties.
It all boiled down to the meticulousness of attorney Dutch Leburu, who reigned supreme with multiple killer shots that determined the validity of the April 27, 2019 meeting where decisions to suspend Mogwera and Marenga were taken.
Linked to that case and also settled on the spot was Olefile Fast Monakwe’s faction’s matter to have Mogwera and Marenga return two motor vehicles, which according to Monakwe’s attorney had ceased to be freebies for the duo when they were suspended from BOPEU by the April 27 meeting.
However, the three Judges ruled in favour of Marenga and Mogwera to retain the said vehicles since the purported meeting that dismissed or suspended them, together with its resolutions and anything that came as a consequent of that meeting is now null and void.
The Panel, comprising Justices Gabriel Komboni, Mokwadi Chris Gabanagae, and Tebogo Tau in consultation with the two parties’ attorneys, had consolidated three of BOPEU Court cases into one. Most importantly, they were all in agreement that the determination of the case dealing with the validity or invalidity of a BOPEU National Executive Committee (NEC) meeting which suspended Mogwera and Marenga, will effectively restore Mogwera as president of BOPEU, as well as having far reaching implications on a multiplicity of cases, some not yet heard, filed by Monakwe/BOPEU or vice-versa.
In their judgement, the Judges observed; “it is common cause that there is a multiplicity of pending litigations in our courts, which have a direct connection to the validity of the 27th April 2019 NEC meeting; the applicant has cited as example, the cases of Masego Mogwera v Olefile Monakwe and 2 others(Case No. MAHGB 00948-19), Mothusi Mojela v Olefile Monakwe and BOPEU(case No.CVHGB 002881-19), Tshepiso Mbereki & 4 others v Olefile Monakwe and BOPEU(Case no.000473-19); this submission has not been opposed by the respondents and I take it that it is the correct position regarding the pending litigation..”
Monakwe’s attorney, Gabriel Kanjabanga had fought vehemently during the case management meetings against the determination of the validity of the April 27 meeting matter, and admitted that it would render the case in which Mogwera was opposing the 2019 Palapye Congress resolutions, where she was expelled from the union, a dead rubber and effectively re-install her as the president of BOPEU.
Kanjabanga had instead argued that Mogwera should rather wait for the case about the Palapye congress resolutions matter currently pending before Justice Mercy Garekwe.
Kanjabanga also argued that the fact that Mogwera had lodged a similar case against the Palapye special congress resolutions that expelled her from the union, then the issue of the April 27 meeting was no longer relevant.
The Court therefore decided to determine whether the current proceedings were moot and went on to rule that in the interest of the over 30, 000 BOPEU members, the Court would hear the matter.
In their ruling, the three Judges were irked by the fact that the suspension of Mogwera and Marenga were not part of the agenda items for the meeting, yet the constitution of BOPEU clearly stated that there should be an agenda for intentions of such decisions.
The three Judges concluded that Mogwera as the applicant, had established that the resolutions taken at the 27 April meeting were beyond the scope of the agenda and therefore liable to be set aside.
They proceeded to declare as unlawful and set aside, the purported decision to suspend Mogwera as president of BOPEU, and further set aside the proceedings of the purported meeting held on April 27, 2019 by Monakwe and declared null and void all or any decision taken thereat.
Interestingly, the Judges also agreed with Mogwera that the April 27 meeting was improperly and illegally convened, as it was not called by the Secretary General of BOPEU but by a mere employee of the Union.
The Court further found that the resolutions arrived at a previous meeting held at Blue Tree (April 26) resolving to hold another meeting on April 27, was also illegal as the April 26 meeting did not form a quorum, and therefore could not have been used to make any resolution.
Further, the Court also agreed that Mogwera was right to disperse the April 27 meeting since it was illegal, and since she was empowered by the constitution to direct proceedings, as well as to determine the direction of meetings during any dispute.
The Court further found that the continuation by Monakwe, or any other, to convene the meeting that was dispersed and without authority of the president was an illegal action bound to be set aside.