Suspended Botswana Public Employees Union (BOPEU) president, Masego Mogwera acted in bad faith when suspending members of the National Executive Committee ahead of the Kasane congress in December 2018, the High Court ruled on Tuesday .
Mogwera, who has lost the case with costs, had suspended members of the National Executive Committee who at the time were lobbying for a motion of no confidence against her leadership. The members lamented then that Mogwera had provided half-baked and fabricated information to the leadership of BOPEU. The information related to contractual agreements that were entered into by Babereki Investments, a business wing of BOPEU with several other companies. They argued that the information that they were deliberately fed with, led to them as custodians of the Union, making inappropriate decisions that have impacted badly on both BOPEU and Babereki Investments.
Amongst the issues that remain at the centre of disputes was the secondment of Mogwera and her remuneration package which BOPEU continue to posit that it was never sanctioned by the National Executive Committee nor the Central Executive Council as constitutionally provided.
At the time of these internal wrangling, BOPEU was heading for its December 2018 Elective Congress in Kasane. Mogwera moved to suspend the three members; Modise Ramaretlwa, Olefile Fast Monakwe and Tshepo Maribela and hence they approached the High Court.
The suspended members had shown interest, and had also publicly declared their intention to challenge Masego Mogwera for the presidency of BOPEU at the 2018 Kasane Elective Congress. It was this purported suspension that led them to approach the High Court on an urgent basis and the High Court then temporarily uplifted their suspension from BOPEU pending finalisation of the review application to set aside the said suspensions.
The court had also further ordered that the parties should return to court in March 2019, a matter which was postponed to June 2019 to enable the parties to pursue a settlement. In June 2019, the parties informed the court that they had failed to reach a settlement.
Attorney Gabriel Kanjabanga, then moved for the confirmation of the order nisi in the favour of the three suspended members. Kanjabanga successfully argued that, the constitution of BOPEU does not allow Masego Mogwera or any other leader to unilaterally suspend members of BOPEU and hence Mogwera breached such a principle by being a judge in her own cause.
Though Senior Counsel Dutch Leburu on behalf of the respondents, argued that the matter should be dismissed, the court reasoned and determined in favour of the applicants and reasoned further that” in terms of clause 47.4 (BOPEU Constitution), Masego Mogwera has no powers to suspend members of BOPEU unilaterally and without the input of the National Executive Committee.”
Court held that the President of BOPEU can only suspend a member once there is a jurisdictional trigger from the National Executive Committee to commence disciplinary proceedings against a member. The judgement essentially corrects the long standing myth that the Union President has the power to suspend members alone. And it buttresses the importance of collective decision even on matters relating to discipline.
In his ruling, Justice Leburu stated that Masego Mogwera “without equivocation was a judge in her own cause, she unilaterally suspended the applicants (other members of the NEC) after they raised a series of complaints against her and for passing a motion of no confidence against her".
The Court also agreed with Mogwera's opponents that she was in breach of the nemo jedex in casa sua. Essentially she couldn't preside in a legal process which stood to benefit her. She had interest in ensuring that her opponents are punished hence she could appoint the investigators and assign them specific terms. This judgment cements an important aspect of proper institutional governance that; you cannot be a judge in a matter that involves your own cause. It remains to be seen how the National Executive Committee of BOPEU will proceed with its estranged leader who is still battling at the High Court with another matter which she is appealing to the court to interdict her disciplinary hearing.
Interestingly, her pending disciplinary process is an internal democratic process which Mogwera championed for over a decade as a member of the National Executive Committee.