CoA defers BLLAHWU Burial Society appeal
Goitsemodimo Kaelo | Wednesday October 18, 2017 13:46
The appeal emanated from a judgement by Lobatse High Court judge, Michael Leburu dismissing the burial society’s application to have its name expunged from the BLLAHWU constitution, which was amended and registered in 2015.
Yesterday, the parties agreed that the appeal should be deferred while awaiting judgement on a matter before Justice Leatile Dambe in which the union wants the court to interdict the burial society from using its deduction code.
CoA Justices, Ian Kirby, Singh Walia and Zibani Makhwade, stated that in any event, the appeals could be combined after judgement on the matter at the High Court is delivered.
The lawyers representing both the appellants and the respondents were in agreement that the outcome of the appeal would not have any bearing on the matter before Dambe.
It was agreed that the matter be deferred until after judgement is delivered. The trial for the matter before Dambe is set to continue on August 14, 2017.
Meanwhile, in the appeal the members of the society were accusing the union of wanting to take control of the burial society and forcing the Registrar to act beyond its powers. They argued that the Registrar had no powers over societies, but trade unions.
The burial society argues that the trial court erred in not reviewing and setting aside the decision of the Registrar of Trade Unions and Employers’ Organisations.
The burial society further argues that while the union may, and does not concede this by reason of the prohibition contained in Section 3(1) of the Societies Act, Cap. 18:01, be entitled to form a burial society of its own, it is not entitled to make use of the name of an existing and registered burial society.
“That the Registrar approved amendments to constitutions of the union containing the appellant’s name and making the appellant one of its structures subject to its control and authority without hearing the appellant as to whether it consented to this was a gross irregularity,” the society argues in its heads filed in court.
The appellant submits that the CoA should not find it difficult in acceding to its request that its name, “BLLAHWU Burial Society”, be expunged from the constitutions of the respondent, because even the respondent has conceded that the Registrar of Societies disapproves of it having any association with, control or authority over the appellant and disavowed the union’s intention to make the appellant one of its structures, and to exercise any control or authority over the latter. According to the burial society, the trial court also acknowledged this point.
However, the union has argued that the application should not stand ground, as the appellant does not allege that it has trademarked its name or that there was any violation of its trademark.
They argued that the appellant has no right to complain about a contract it is not party to, and that it (appellant) cannot be bound by a contract it is not party to.
They further argue that the union did not purport to regulate or control the appellant when it registered an amended constitution. They argued that though the two parties have historical ties, when the current proceedings were instituted, it was clear that the union considered the burial society as an autonomous and independent body.
The union is represented by Chabuya Lowani in the matter while the burial society has roped in Advocate Sidney Pilane.