Monakwe Loses Appeal Against Mogwera & Co
Goitsemodimo Kaelo | Monday February 10, 2020 15:25
Monakwe, who has been involved in a tussle with former union president Mogwera over control of the union, had approached CoA seeking it to overturn Justice Gaolapelwe Ketlogetswe’s judgement that reinstated Mogwera and three other directors of Babereki Investments to their positions.
The litigation followed the purported suspension of Mogwera from the union as well as their deposition from her union’s investment arm, Babereki Investments alongside fellow directors Martin Gabobakwe, Tlhabologo Galekhutle and Otto Itumeleng during a meeting held on April 27, 2019.
Monakwe challenged the respodents’ locus standi to represent the company, as they were no longer directors, that the application was incompetent as the decision complained of was not that of BOPEU, not him and that there was a non-joinder and mis-joinder of him. He also challenged the decision in that the application was in the wrong forum as the matter was supposed to be referred to arbitration and that the removal of the four directors was properly made by the appropriate means of the shareholder union in a properly convened meeting.
However, CoA justices Ian Kirby, Isaac Lesetedi and Abednigo Tafa on Friday upheld Justice Ketlogetswe’s judgement and dismissed the appeal in its entirety with costs. When delivering the judgement Justice Lesetedi said the argument by Monakwe that the respondents lacked locus standi is unreasonable because they never accepted the validity of their purported removal from the directorship of the company.
“They consider it a nullity and ask for it to be set aside. They have substantial reasons for their contention that their removal is a nullity. To prevent them from passing a resolution to empower the company to act in a litigation would be an indirect seal of approval of their removal whereas their entitlement to pass the resolution would be consistent with the uncontested status quo ante until the question of the validity of their removal is resolved,” he said.
On the issue of joinder and mis-joinder, the three justices were in agreement that the litigation was an auxiliary manifestation of the fight over the leadership of BOPEU.
“As the person in de facto leadership of BOPEU, if he considered that BOPEU was entitled to be joined in the litigation, it was for him to have caused the proper approach to the court to be made by BOPEU under Order 16 rule 9 (2) of the Rules of the High Court for it to be joined as a party. The joinder point must therefore fail.”
The judges also dismissed the issue of arbitration stating that there was no dispute between the shareholders of the company and the company.
Lesetedi said the directors were not properly removed from their positions because the meeting that purportedly made the resolution was not in accordance with the constitution of the company. He said those who made the resolution acted in breach of the constitution of the company both substantively and procedurally.
“In light of the analysis of the appeal in the foregoing, the appeal does not succeed,” said Lesetedi.