Mogwera Wins Bid Challenging Dismissal
Goitsemodimo Kaelo | Monday May 27, 2019 13:10
Mogwera and three others were dismissed as members of the Board of Directors of the union’s investment arm, Babereki Investments (Pty) Ltd. Mogwera, along with Martin Gabobakwe, Tlhabologo Galekhutle and Otto Itumeleng were on April 27 dismissed by BOPEU first president, Olefile Monakwe.
On May 3, they successfully secured a temporary restraining order against Monakwe, in an urgent court case at the Lobatse High Court, which was subsequently confirmed as a final court by Justice Gaolapelwe Ketlogetswe on Thursday morning.
In his judgement, Ketlogetswe said the matter was deserving of urgency in order to resolve the controversy surrounding the governance of Babereki Investments, a company running into millions of pula and protect its interests.
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.
“The respondent seems to suggest that because BOPEU is the sole shareholder of Babereki Investments, it can through its National Executive Committee purport, and constitute itself, as such, as a shareholders’ meeting and make decisions affecting the business affairs of Babereki Investments without recourse to the constitution of the Babereki Investments as well as the Companies Act.
I am satisfied that the respondent has misconstrued the contractual and constitutional relationships between BOPEU as a trade union and BOPEU as a shareholder in relation to Babereki Investments,” Ketlogetswe said.
According to him, the applicants were correct in that the meetings of April 26 and 27 were not, and have not been shown to have been meetings of Babereki Investments and had no business to discuss as shareholders, the dismissal of the directors of the company. He therefore set aside the decision and communication purporting to dismiss or turn down the appointment of the applicants because it was unlawful. He said the respondent has not even in terms of BOPEU constitution, established that it was a meeting of the NEC of BOPEU.
“It is hereby directed that the second, third, fourth and fifth applicants remain members of the Board of the first applicants until lawfully removed in terms of the constitution of the first applicant read together with the Companies Act,” he said.
On the issue of BOPEU’s non-joinder, Ketlogetswe dismissed the assertion saying BOPEU was not a necessary party for purpose of the application. He said BOPEU’s non-joinder was not necessary because the interests of BOPEU as a shareholder were fully taken care of by the directors appointed to look after the business interests of Babereki Investments until such time that these directors were lawfully removed.
“It is therefore clear to me that the communication by the respondent that there has been a resolution disappointing the applicants as directors of Babereki Investments was a misconception and unlawful and of no force and effect.
The purported decision was not made by any recognised structure in terms of the constitution of the company nor at the very minimum, BOPEU as a shareholder. The respondent is hereby ordered to pay punitive costs,” Ketlogetswe said.