BOFEPUSU floors BOPEU, again
Lebogang Mosikare | Thursday April 13, 2017 15:20
BOPEU lost a case in which they had taken the federation to Court on urgency seeking that BOFEPUSU, an admitted party to the Botswana Public Service Bargaining Council (PSBC), be ordered to submit its audited membership figures for the period ended December 31, 2016, and in terms of Article 8,1 of the constitution of the PSBC.
BOPEU also wanted BOFEPUSU to be declared to have violated Article 8.1 of the constitution of the PSBC, that BOFEPUSU be immediately ordered to pay its outstanding financial contributions of P1, 065. 30, and that BOFEPUSU’s PSBC membership be suspended.
BOFEPUSU lawyer, Mboki Chilisa responded that the federation paid its subscriptions to the PSBC on Monday.
BOPEU also wanted the chairperson of the PSBC to be interdicted from convening or causing the convening of the PSBC meetings pending compliance with the reliefs above sought by the applicant. The respondents in the matter were Attorney General, Trainers and Allied Workers’ Union, Botswana Government Workers’ Union, Botswana Nurses. Union, the PSBC, Botswana Land Boards and Local Authorities Workers’ Union and Botswana Sectors of Educators’ Union.
The last respondents were the Botswana Teachers Union, BOFEPUSU and the chairperson of the PSBC respectively. Delivering judgement on Tuesday evening, presiding officer, Justice Bengbame Sechele noted that, “In motivation of the reliefs sought, the applicant’s president deposed to an affidavit in which she cited various acts of the chairperson of the PSBC’s non-compliance with the constitution of the PSBC and sought on the basis thereof the reliefs outlined above”.
The applicant, Sechele said, further averred that it has a substantial and direct interest in the affairs of the PSBC and in particular, that it is properly constituted in terms of its constitution, rules and regulations and therefore in a position to lawfully generate binding resolutions.
When substantiating why the matter was urgent, the applicant, Sechele said, averred that on the evening of April 6, it learnt that BOFEPUSU was not a member of the PSBC in good standing by virtue of non-compliance aforesaid.
The Judge added that BOPEU also averred that on April 7, BOFEPUSU wrote to the chairperson of the PSBC requesting a meeting of the PSBC on April 10. The convening of such a meeting as averred by BOPEU, the Judge stated, would be a nullity because it would produce resolutions that are unenforceable since BOFEPUSU was a member of the PSBC in bad standing.
“…The applicant further averred that it stands to suffer irreparable harm if an interim interdict is not granted as its members stand to lose out on salary increments that have been awarded to them should the PSBC proceed to convene a meeting against the backdrop of BOFEPUSU’s non-compliance,” the Judge said.
When opposing the applicant’s averments, Chilisa said the issue of BOFEPUSU’s non-compliance was not new and was a matter that the applicant has been aware of prior to April 7, 2017. The impending meeting of the PSBC could not have in any way, according to Chilisa precipitated the urgency in any manner whatsoever as it has always been in the contemplation of the applicant that the PSBC could at anytime convene to transact business in terms of its mandate…and also argued that if there was any urgency, such urgency was triggered by BOPEU’s inaction on the matter, said Sechele… The applicant’s president, the judge said, did not do justice to Order 13 (3) or the rules of Court relating to affidavit evidence.
“She, at paragraph 40 of her founding affidavit, states that BOPEU became aware that BOFEPUSU was not a member of the PSBC in good standing. The source of such awareness is not stated…” Sechele said.
“The grounds on which the claim for urgency is premised are in my view, fatally defective and cannot sustain the dispensation sought, the judge noted…“While the above will no doubt conclude the matter, I wish to state further that the PSBC is governed by its constitution. There are structures that have been put in place to ensure compliance with its constitution,” the Judge said. He continued: “This Court is loathe to micromanaging the PSBC in a manner sought by the applicant...The interest that BOPEU has on the affairs of the PSBC is in my view indirect and cannot sustain its claim of how it would suffer harm from law if its reliefs are not granted. This application is dismissed with costs”. Attorney, Martin Dingake represented BOPEU.