It is bad enough that a quartet of Botswana Sectors of Educators Union (BOSETU) members who wanted to oust the Union’s Secretary General, Tobokani Rari, have lost a High Court. Even worse, those members are collectively on the hook for legal costs of the case.
“First to Fourth respondents are to pay costs on party/party scale,” says judgement handed down by Justice Michael Motlhabi of the Gaborone High Court.
Also known as “costs on the ordinary basis”, party/party costs are when an unsuccessful litigant is ordered to pay the costs of the winning party. Both parties will try to reach an agreement as to a reasonable amount to be paid and if they cannot, a costs assessor will be appointed. The costs assessor will review the costs incurred in a case and determine the amount which should be paid to cover the legal costs of the successful party.
The members in question are Tshetsana Motsatsing, Namwaka Shamukuni, Carthage Kenosi and Matthews Masole. The latter is a lecturer at the Tlokweng College of Education, Motsatsing teaches at Gantsi Senior Secondary School, Shamukuni at Molefi Senior Secondary School in Mochudi and Kenosi at Naledi Senior Secondary School in Gaborone. They had alleged that Rari “deliberately” altered a constitutional clause, in the process fabricating a resolution of a national congress (the highest decision-making body in the Union) in order to prolong his stay in office. The alleged fabrication happened in 2014.
In a counter-application, Rari asked the High Court to set aside the writ of summons served on him by the quartet because it was “irregular and improper.” Rari invoked a High Court rule (Order 61, Rule 8) that he argues the quartet has fallen foul of. The latter states that where one complains of a decision, they must institute review proceedings within four months.
“The amendment of a constitution of a trade union constitutes administrative action, which ought to be challenged by way of review proceedings,” said Rari in his affidavit. “The election of officers of a trade union also constitutes administrative action, which ought to be challenged by way of judicial review.”
He went farther to state that the quartet knew of his allegedly unconstitutional acts for eight years “and yet no legal proceedings were instituted to have the amendments set aside or to have my candidature invalided.” He made the same argument with regard to the invalidation of his April 2021 election as Secretary General, noting that the quartet’s application came seven months after his election.
Advancing their own argument against Rari’s assertions, the quartet stated that the amendment of the constitution didn’t constitute administrative action, which “is taken by government or public bodies and not voluntary associations such as trade unions in the exercise of public power.” On the basis of the latter, “this action is not time-barred as this action is not a review.” They further argued that “the raising of this technicality is a deliberate ploy to run away from the real issues, that is, whether or not the deponent should still be occupying the position of Secretary General and for the deponent to clarify how the unconstitutional and illegal amendment occurred.”
Thus the Court’s task was to determine whether amendment of the constitution constituted or didn’t constitute administrative action. The Court agreed with Rari that it did.
“It is the view of this Court that the amendment of the constitution of a trade union constitutes administrative action. Having found that the amendment of the constitution of a trade union constitutes administrative action, then it is clear that the right procedure of challenging this decision should be through review proceedings. Taking into account the time limits under this rule, the respondents would therefore be time-barred to proceed by way of Order 61,” Motlhabi says in the judgement.
Perhaps the more interesting aspect is that Rari’s win was a result of technicality in the law and the substantive issues alleged were not legally tested. The main issue the quartet raised was that Rari “deliberately” fabricated resolutions of a national congress for personal benefit.
At its 2008 national congress, at a time that it was still called the Botswana Federation of Secondary Teachers (BOFESETE), the Union resolved to change its name to the Botswana Sectors of Educators Union. This was meant to open the Union’s membership to everybody else in the education sector – like workers in higher learning institutions and primary schools. It is this resolution that enabled Masole, a lecturer at the Tlokweng College of Education, to be part of this action.
The 2008 Congress also resolved that the term of office for the position of Secretary General (SG) should be restricted to two years. As a result of the latter, a new constitution that reflected the latter constitutional amendment, was registered with the Registrar of Trade Unions in 2011 by the member who held the SG position at the time. The clause in question, numbered as Article 17.3.11, reads in full: “That, if and when the Secretary General is seconded to the Union on a permanent basis, s/he may only serve two terms of office consecutively.”
BOSETU would hold another national congress in 2013, a special one, which had been called for the purpose of discussing the amendments that had already been made. At this point, Rari was the SG.
“During Congress, it was established that as the Secretary General was presenting, Article 17.3.11 had been amended or altered despite the fact that it was not part of the proposed amendments … The clause restricting the Secretary General’s term of office was replaced with a clause which provided for dissemination of minutes,” one part of the “Particulars of Claim” by the quartet read.
The replacement clause, the one the quartet is challenging and one still in force, reads as follows: “Promptly disseminate minutes of meetings to the Union and to the National Executive Committee.”
The “Particulars of Claim” went on to state that this anomaly was brought to Rari’s attention and that the Congress, which is the highest decision-making body in the Union, instructed him to restore the original clause it had earlier adopted before submitting a copy of the amendments to the Registrar of Trade Unions. The four member-applicants are keen to stress that the proposed amendments did not involve any amendment to Clause 17.3.11: “As altered, Article 17.3.11 is unlawful and null and void, as it violates constitutional amendment processes.”
The quartet accused Rari for not only acting outside his mandate but also acting unlawfully: “The first defendant, deliberately and intentionally, altered the constitution without authority or unlawfully, in bad faith, and did so to benefit himself. The first defendant has repeatedly failed, refused or neglected to act in accordance with repeated mandates given at Congress to have the matter resolved. Owing to this, the first respondent is now in his fourth term in office, having started his first in 2011.”
