The former secretary general of the Botswana Nurses Union (BONU), Keoopetse Phaphane is suing the union over her recent recall from the position. Phaphane, who is a nurse, has been the union’s secretary general since she was elected in March 2016 for a three-year period ending March 2019 on a secondment contract.
However, the union recalled her during its Extraordinary General Conference held on July 12, 2018.
Phaphane has since approached the High Court on an urgent basis challenging her recall. When arguing on behalf of Phaphane before Justice Michael Leburu, attorney Busang Manewe argued that his client was seeking an order setting aside her recall on the grounds that the number of voters who voted for her recall did not meet the 55% threshold required by the union’s constitution.
He also argued that the Extraordinary General Conference did not form a quorum as per the Respondent’s constitution. He said that the Court should set aside the recall and declare it invalid and void.
Manewe also said that his client must be reinstated to her position with immediate effect because she would suffer irreparable harm.
He argued that the case was urgent because if the matter was heard in a normal court, her client was likely to lose her chance to serve.
According to Manewe, the respondent’s constitution requires that a quorum of the AGC shall not be less that 50% of the central executive committee and at least two-thirds of the total number of delegates eligible to attend the AGC. He said that the union paid up membership was 7,000, so the quorum had to be a minimum of 373 delegates plus half of the members of the CEC.
However, it is said that on the day the motion of recall passed, there were 148 delegates. He indicated that of the 148 delegates eligible to vote, 79 voted for Phaphane’s recall, 54 against while nine votes were spoilt, meaning that the votes fell short of
“The applicant stands to suffer irreparable harm and prejudice if the case is heard in the normal course because her tenure may have lapsed. They concede that they didn’t form a quorum. The quorum is a matter of law, it is not self-conferred.
“It is clear that the delegates who attended the conference were far below the quorum required to hold a proper and legally valid conference,” he argued.
He said that since the meeting did not form a proper quorum, all proceedings including the voting for his client’s recall were null and void. However, attorney Hebert Sikhakhane for the respondents argued that it was not correct that all the 148 members who attended the conference were eligible to vote because voting was subject to screening. “After the screening was done, only 142 members were eligible to vote and those not eligible were excused. When that happened, nobody including the applicant protested,” he said. He denied that the meeting that recalled the applicant did not form a quorum.
He said that as a precedent, all members of the union including the applicant, have always followed that the number of members released by the employer was considered to constitute the necessary quorum.
“The practice has always been that the quorum is determined by the number of delegates released by the employer. Even when the applicant was appointed and elected in the office of the secretary general, the same practice was followed,” he argued. He said that the application must be dismissed with costs because the recall of the applicant was in compliance with the constitution of the union.