BOPRITA to remain separate from BOPRITU, court rules

LEKOPANYE MOOKETSI
Correspondent | Thursday September 15, 2011 00:00

BOPRITA lodged a court case after the BOPRITU executive took control of its bank account at the First National Bank (FNB) in a fight over the former's assets.

BOPRITA was seeking an order to restrain BOPRITU officials from making any transactions on the association's account.  The association also wanted the court to declare as unlawful, improper and a nullity the decision to transfer their bank account into BOPRITU's name.

The judge noted that the crux of BOPRITU's defence was that the last meeting held towards the end of 2009, agreed to dissolve the association.   BOPRITU alleged that BOPRITA members agreed to dissolve the association and transfer all properties to the union hence they took over all the assets and liabilities of the association.

In a hearing in May this year, Lesetedi said the court was attracted to the proposal for a joint meeting as suggested by BOPRITU.  He said the court held this view notwithstanding some marked weaknesses in BOPRITU's opposition to the court application.

He said BOPRITU has submitted that there was a meeting towards the end of 2009 but no minutes of such meeting was attached to their affidavit.  He said all BOPRITU did was to attach minutes of their own meeting held in December last year but not of BOPRITA. 

'Those minutes are of no assistance to the 1st respondent (BOPRITU) in that notwithstanding common membership, the 1st respondent was not legally competent to pass a resolution dissolving the applicant.  It was for the applicants' members, constituted in accordance with the requirements of the applicants' constitution, who were competent to pass such a resolution,' the judge said.

He said the second major weakness in BOPRITU's case is found in Clause 18 of the BOPRITA constitution that deals with dissolution and disposal of assets and liabilities of the association. 

The judge said the clause states that the association may be voluntarily dissolved upon a resolution carrying not less than 85 percent of the votes at an annual conference or special general meeting of the association.

He said for a dissolution of the association by its members, this requirement must have been shown to have been met.   He stated that there is no allegation by BOPRITU that the 2009 meeting attained those requirements.

The judge further quoted other sub sections of Clause 18 which  state that 'in such an event, a liquidator shall be appointed by the National Executive Committee who shall liquidate the association by reducing all its assets into cash.'  Another sub-section of the clause reads: 'the liquidator shall prepare a liquidation and distribution account and lodge a copy of every such account with the Registrar of Societies.'

Lesetedi said the processes that are described in these sub clauses are mandatory to any valid dissolution process. 'Until and unless they have been followed no dissolution can be deemed to have taken place.'

He further noted that it is clear from the BOPRITA constitution that it was legally incompetent to direct that the assets and liabilities of the association be dealt with in a way other than as prescribed under that constitution.

He added that these weaknesses in the union's case were fatal.

Lesetedi also referred to a joint meeting of the two organisations that he ordered this year, at which the two organisations were going to determine BOPRITA's fate. The meeting was to determine whether BOPRITA should be dissolved and its assets and liabilities be taken over by BOPRITU. 

During the meeting held at the University of Botswana (UB), delegates voted overwhelming against the dissolution of BOPRITA. Although BOPRITU had doubts about the manner in which the meeting was conducted, the court found that it was conducted with the agreed ground rules that it laid out.

The meeting was co-chaired by attorneys Duma Boko representing BOPRITA and Batsho Nthoi for BOPRITU.

Regarding the irregularities alleged by BOPRITU at the meeting, the court found that no affidavit has been placed by any of the union members attesting to any duress or intimidation.