BOFEPUSU fails to overturn its deregistration

CHANDAPIWA BAPUTAKI
Staff Writer | Monday February 21, 2011 00:00

This means that BOFEPUSU has ceased to exist as a federation of trade unions and together with its affiliates would not enjoy the rights, immunities and privileges of a federation of trade unions.

Delivering judgement on Wednesday at the Lobatse High Court, Walia said that BOFEPUSU received a notice from the registrar proposing to cancel its registration as it had been procured by misrepresentation or mistake.

He said it then called upon BOFEPUSU to comply fully with the provisions of the law. BOFEPUSU's registration was cancelled because it failed to comply with the provisions of Section 45 (3) of the Trade Unions and Employers' Organisations Act, read with Regulation 13 (4). This means that the constituent unions making BOFEPUSU did not hold a secret ballot as required and the ballot was not supervised by the registrar or the person appointed by her.

The then registrar Lesego Pule said that contrary to Regulation 13 (30) of the Act, she was not notified by any of the constituent unions of their intention to amalgamate 14 days before holding the ballot. She said that contrary to the regulation, she was not furnished with a complete alphabetical list of the members eligible for voting 14 days before the day on which the ballot was supposed to be held.

In his judgement, Walia stated that BOFEPUSU responded by suggesting that Regulation 13 (4) was ultra vires the Act and constituted unjustifiable infringement of the right to freedom of association. He said that interspersed in the registrar's denials of BOFEPUSU averments are some subtle but significant rejoinders. He put it to BOFEPUSU that procedures and regulations for registration are in the public domain and the federation is expected to know them. 'Ignorance of the law is not an excuse. There was no waiver of any requirements, express or tacit,' he said.

Walia stated that on the presence of the Commissioner of Labour at a meeting of the parties, the registrar said that that this was a purely administrative matter and that all decisions were made by her and her alone. He said that it was stated to BOFEPUSU as a fact that its registration was unlawful.

Walia said that the very first argument advanced by BOFEPUSU was that the decision of the registrar was void for non-compliance with Section 12 (9) and 12 (7) of the Act in that proper notice was not given to them and the decision was made before they had made any representations. However, he felt that the argument was mischievous and misconceived. He stated that the said sections had no application to the case. He said subsections (9) and (7) of Section 12 flow from subsection (4) which reads that: 'the Registrar may cancel the registration of trade unions or employers' organisation registered under this Act if he is satisfied that its account are not being kept in accordance with this Act'. He said cancellation in this case was effected under Section 12 (2) which provides that once registration is procured by inter alia mistake, the registrar had no discretion.

The judge said the registrar therefore was under no obligation to give notice before proceeding to cancellation. He stated that notwithstanding, BOFEPUSU had ample notice that consideration was being given to cancel its registration and a number of meetings were held drawing their attention to the mistake in registration.

He pointed out that BOFEPUSU argued that the decision to cancel the registration was not made by the registrar but the Minister of Labour and Home Affairs. Walia said this argument could not succeed because all relevant correspondence and documentation is under the hand of the registrar. 'The notice of proposal to cancel and the cancellation order are both signed by the registrar. Ex facie the document therefore, there is nothing before me to suggest that the decision to cancel was made by someone else,' he said. He added that if BOFEPUSU suggests that the attendance by the minister at one or two meetings between the parties suggest his active participation in pre-cancellation proceedings signifies and the usurpation of the registrar's powers, they did not say explicitly but left it to the court to make that summation.

He said it is common cause that no general meeting was held by either union and the decision to amalgamate having been taken by delegates at conference.

BOFEOPUSU is made up of the Botswana Teachers Union (BTU), Botswana Secondary Teachers Union (BOSETU), Botswana Public Employees Union (BOPEU), Botswana Land Boards, Local Authorities and Health Workers Union (BLLAWHU) and the National Amalgamated, Central and Local Government and Parastatal Workers Union (NACLGPWU).