Wednesday, October 21, 2020

Did Motsamai lie to court under oath?

The jury is still out on whether Botswana Public Employees Union President (BOPEU) Andrew Motsamai lied under oath on a number of times just to have his way. While his adversaries brandish a number of past sworn statements in which he insisted that Botswana Manual Workers union is a registered union Motsamai recently sent shock waves through the labour union movement when he made a sworn statement that it has recently come to his attention that Manual Workers Union “has not been registered nor is it recognised by the employer”

A sheaf of court records reveal how Motsamai’s recent sworn statement contradicts a number of sworn statements he has made in the past when he was still friends with the Manual Workers Union. In the current case, Manual Workers Union is cited as 4th Applicant while BOPEU is cited as 1st Respondent and Public Service Bargaining Council is cited as 4thRespondent. His sworn statement in the current case before the Court of Appeal is starkly different from what he had previously told courts while he was still BOFEPUSU secretary general. BOPEU has since severed ties with BOFEPUSU as one of its affiliates. In his founding affidavit, Motsamai “dispute that the 4th Applicant(Manual Workers Union) is a trade union duly registered and recognised in terms of Trade Unions and Employers Organisation Act and the Trade Dispute Act as alleged or at all.”

Motsamai added that “I therefore strictly put the 4th Applicant (Manual Workers Union) to the proof that it is a registered and recognised trade union and I hereby call upon the 4th applicant, in reply, to produce before Court the necessary documentation in proof of its registration and recognition in terms of Trade and Employers Organisation and the Trade Dispute Act as alleged in the founding affidavit.” But Motsamai who was the secretary general of BOFEPUSU from July 2010 until March 2012 states on 8th September 2011 in a sworn affidavit which he filed under the High Court case number MAHLB-000605-11 that Manual Workers Union is “a trade union dully recognised by the Government of Botswana as the exclusive collective bargaining of its members.”

Then, BOPEU and BOFEPUSU were jointly seeking a court order interdicting government from implementing its surprise move to stop assistance to trade unions affiliated to the Botswana Federation of Public Service Unions (BOFEPUSU) which BOPEU then was a member. It was on the basis of Motsamai’s sworn statement in 2012 Justice Lot Moroka granted an order in favour of BOPEU, Manual Workers Union and other members under High Court case number MAHLB-000605-11. Highlighting the contradictions in Motsamai’s sworn statement, the current BOFEPUSU Secretary General Tobokani Rari stated in his court papers that “it is disturbing that Motsamai with the full knowledge of the true facts respecting the 4th applicant’s status goes all out to try and mislead this Honourable Court just for the 1st Applicant’s narrow interests of defeating the Applicant’s Application.”

In another sworn statement under High Court case number MAHLB-000901-11 which was a successful application to strike down s45(3) and s45(4) of the Trade Unions and Employers Organisations Act, Motsamai states that Manual Workers Union is “a registered trade union organising in the public sector.” The case involved a decision by the Registrar of Trade Unions and Employers’ Registration to cancel the registration of BOFEPUSU. Justice Michael Leburu at the time ruled that the decision was invalid and of no force or effect. However, in the current case before the Court of Appeal, Motsamai insists that “it has only recently come to the attention of the 1st Respondent that the 4th Applicant has not been registered nor is it recognised by the employer. The 1st Respondent therefore avers that the 4th Respondent lacks the necessary locus standi in judicio to have participated in this matter and that it cannot therefore continue to participate in the matter.”

Rari argues that the allegations made by Motsamai are “very serious and if true, would cast serious aspersions on the integrity and the very existence of fourth respondent (Botswana Public Service Bargaining Council). It is far from the truth.” Rari also reminded Motsamai that in another judgment, Justice John Foxcroft had stated that “it is common cause that an agreement was reached on 13 November 1975 between the Botswana Government and the Botswana union of Government Manual Workers Union as ealier name of the 4th Respondent; the union was recognised by the Government in clause 1(a) of the Memorandum of Agreement (the 1975 agreement.)” On suggestion by BOFEPUSU President Tshukudu that the interdict against salary negotiations continues to cause crisis for public officers who have gone for many years without a decent wage increase, Motsamai hit back saying BOFEPUSU has failed to demonstrate that if the public service salary increments are made after 01st April, such will in any way cause irreparable harm to the public servants.

“I aver that salary backups can always be made, as such as has been the case in other similar instances in the past. I aver that the fact that the public servants are affected by the pending process does not on its own automatically render the appeal urgent. The Applicants still have to demonstrate exceptional circumstances and irreparable harm,” said Motsamai.  Botswana Landboards Local Authorities and Health Workers Union, Botswana Sector of Trade Union, and BOFEPUSU are cited as 1st Applicant, 2nd Applicant, and 5th Applicant respectively. The Director of Public Service Management, The Attorney General of Botswana and the General Secretary of the Public Service Bargaining Council are cited as 2nd Respondent, 3rd Respondent, 4th Respondent and 5th Respondent respectively.

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