The Botswana Federation of Trade Unions last week escaped deregistration by a whisker after Lobatse High Court Judge Lot Moroka stayed their deregistration pending another constitutional application.
BOFEPUSU has been desperately fighting for its existence, after Justice Singh Walia upheld the Registrar of Trade Unions’ decision, in July 2009, to withdraw their registration. The registrar argued that BOFEPUSU had not complied with section 45(3) of the Trade Unions and Employers Organizations Act, which insists that a general meeting of each of BOFEPUSU’s affiliate trade unions should resolve, by secret ballot, to form a federation.
BOFEPUSU on the other hand said it would be a logistical nightmare to convene thousands of its affiliates to come and vote on the issue.
“This provision is unconstitutional in that it is an unreasonable limitation of the freedom to unionize as enshrined in Section 13 of the constitution. It is simply impossible to have tens of thousands of union members at one venue to vote on this,” said Andrew Motsamai, BOFEPUSU Secretary General.
When delivering judgment in February 2011, Justice Singh Walia ruled that the fact that it was administratively cumbersome to comply with the Act is not an excuse for BOFEPUSU to disregard the law.
On the 3rd of March BOFEPUSU was granted a stay of cancellation of their registration pending appeal. Surprisingly, BOFEPUSU withdrew their application on July 21st.
The withdrawal effectively meant that the stay of cancellation of registration was no longer effective, and that BOFEPUSU was no longer a juristic person. BOFEPUSU’s deregistration had serious ramifications. They would be forced to surrender their registration certificate, plus they would no longer enjoy the privileges associated with registration. BOFEPUSU also stood at risk of losing thousands in subscriptions as there were fears that its affiliates will start trekking back to the rival Botswana Federation of Trade Unions.
However, BOFEPUSU applied for yet another stay of cancellation of registration, this time after giving government the statutory 30 day notice to sue and challenge the constitutionality of section 45(3) of TUEOA.
Attorney Tshiamo Rantao of Rantao Kewagamang attorneys told Lobatse High Court Judge Lot Moroka that the constitutional application has strong prospects of succeeding.
“It would be unduly harsh and prejudicial if BOFEPUSU’s liquidation was allowed, only for the constitutional challenge to succeed. Again, government would suffer no material prejudice by allowing BOFEPUSU to exist until then,” said Rantao.
The plan is to seek a declaration that section 45(3) of the TUEOA is unconstitutional, which would, by extension, nullify the decision of the Registrar of Trade Unions.
The state on the other hand, argued that BOFEPUSU’s application has no locus standi as they ceased being a juristic entity when they withdrew their appeal of Justice Walia’s ruling. The state also said BOFEPUSU’s application should be dismissed with costs as the federation has exhausted all legal avenues.
In the end Justice Moroka ruled in favour of BOFEPUSU, ordering that the cancellation of BOFEPUSU’s registration should be stayed, and that the state should pay the costs of the application. This was the second time in four months that the High Court had stayed the cancellation of BOFEPUSU’s registration.
When commenting on the issue, Motsamai lauded Justice Moroka’s ruling as yet another victory for the workers in the midst of government’s concerted efforts to annihilate the unity of workers.
“It is clear that government is hell bent on ensuring that BOFEPUSU dies instantly. We will fight government in every street, every corner and through our courts. It is still business as usual at BOFEPUSU,” said Motsamai.
