Monakwe Ruling Today
Goitsemodimo Kaelo | Monday June 24, 2019 12:25
The application stays pending final determination of the matter by the appeals court.
Mogwera and three others were dismissed as members of the board of directors of the Union’s investment arm, Babereki Investments (Pty) Ltd. She, along with Martin Gabobakwe, Tlhabologo Galekhutle and Otto Itumeleng were on April 27 dismissed by BOPEU first president, Olefile Monakwe.
However, early July Lobatse High Court Justice Gaolapelwe Ketlogetswe ruled in favour of Mogwera and the other directors thereby reinstating them. He said the decision to purportedly dissolve the Board of Babereki Investments was not taken at a meeting called in terms of the company’s constitution or in terms of the Companies Act. Monakwe has approached the Court of Appeal (CoA) to overturn Ketlogetswe’s decision. Monakwe’s attorney Gabriel Kanjabanga has pleaded with CoA Justice Isaac Lesetedi to stay the court a quo decision to reinstate the matter. Kanjabanga also wanted the matter to be dealt with urgently.
On urgency, he argued that it is founded on the desire to protect the BOPEU against the unlawful acts of the Respondents.
He said the respondents acted in negligence and failed to exercise due care and attention as directors of Babereki Investments, costing the company to lose millions of pula in the process. “The court a quo has also dealt with the matter as an urgent matter and returned a verdict that it is urgent, so on the basis of that, this matter should be treated with urgency,” he argued. He also argued that CoA should stay the High Court’s decision since the orders granted against his client are prejudicial to him. He stated that the issues are all about BOPEU, a party that ought to have been cited.
“My client has the burden of dealing with orders that has been granted against a party that is not party to these proceedings. The person who had brought the proceedings bears the primary responsibility to cite the right parties. BOPEU should have been joined,” he said.
But attorney Dutch Leburu representing Mogwera and three others argued that the application ought to be dismissed as the applicants have failed to demonstrate that the matter is urgent.
Leburu argued that the appellant failed to demonstrate how he is able to motivate urgency on behalf of BOPEU and how that urgency directly or indirectly affects him and how the members of BOPEU are being prejudiced in the context of the financial statements of the group, which includes BOPEU and Babereki Investments.
“There has to be an occurrence that precipitates a matter becoming urgent, a trigger for urgency being an imminent occurrence of an act which will lead to irreparable harm if the matter is not heard on urgency. The appellant cannot rely on what does not affect him as the basis of his claim for exceptional circumstances,” argued Leburu.
He said the accusation of negligence and or recklessness is not founded on any factual premise, bald and iconic. He said at any rate, has the appellant demonstrated the nature and extent of the unlawful acts complained of in relation to the Respondents. Ruling on the matter has been set for June 24.