BLLAHWU Burial Society appeals
Goitsemodimo Kaelo | Friday September 22, 2017 16:01
The burial society had taken the union and Registrar of Trade Unions and Employers’ Organisations to court for “illegally” registering the constitution of the union, which seeks to regulate the burial society.
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.
However, Judge Leburu ruled against the scheme’s application saying they had no business with the union since they have long disassociated from it. Leburu said the burial society’s application was misconceived and ought to be dismissed, more so that its own constitution and the Societies Act regulate it.
He explained that all the articles sought to be expunged from the union’s constitution did not purport to control and regulate the burial society. Leburu said it was evident that the relationship that used to exist between the burial society and the union was terminated after the applicant expunged from its constitution all the articles that provided the regulatory oversight and constitutional relations between the two entities.
He pointed out that as such, the union accepted the said disaffiliation and had moved on to establish a new entity, which has similar name to the burial society. He said there is no evidence that the union purported to regulate the burial society and furthermore, their new scheme is managed by a different entity that has no connections with the burial society.
The burial society has not given up the fight as they have filed an appeal at the Court of Appeal (CoA) arguing that the trial court erred, with respect, in not reviewing and setting aside the decision of the Registrar of Trade Unions and Employers’ Organisations.
Through their attorney Onkagetse Pusoentsi, the burial society says 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. The appellant does not want its name used by any other 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,” argues Pusoentsi.
Furthermore, the society argues that the power of the Registrar to approve and register the constitution of a trade union and amendments thereof by Section 32(5) given does not include the power to register a trade union constitution that makes an existing and registered society one of its structures subject to its authority without the consent of the society.
“The likelihood, in any event, is that the Registrar was unaware or, if aware overlooked the fact that there was in existence a society registered under the Societies Act making use of the name of the Appellant, which is probably why the Registrar and the Attorney General abide by the judgment of the Court. The gross irregularity and ultra vires acts aforesaid of the Registrar are grounds for the review and setting aside of the latter’s decision.”
The appellant submits that the CoA should therefore, 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 have 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. The trial court also acknowledged this position. The appeal is set for argument on October 17.