Tuesday, April 23, 2024

Half of BLLAHWU Exec Committee challenge Motshegwa’s contract extension

Three members of the Central Executive Committee (CEC) of the Botswana Land Board, Local Authorities & Health Workers Union (BLLAHWU) have asked the Gaborone High Court to declare a contract of employment appointing Ketlhalefile Motshegwa as the Union’s Secretary General unlawful. The members are Nicholas Mothelesi (First Vice President), Baone Seloka (Treasurer) and Boemo Bato (Second Vice President).

An affidavit deposed to by Mothelesi states that in June last year, the Union’s President, Thatayaone Kesebonye, called a special CEC meeting at which he tabled the issue of renewing Motshegwa’s contract – which was coming to an end. Mothelesi raised the issue of whether such appointment would be constitutional. In terms of the BLLAHWU constitution, the Congress, which is  the supreme body of the Union, elects CEC members; the CEC shall be composed of the President, First and Second President, Secretary General, Deputy Secretary General, Treasurer-General as well as the Secretary for Arts, Sports and Culture; the CEC shall hold office for a period of three years and with a limit of two terms; only shop stewards are eligible to be elected as members of the CEC; and the Secretary General shall be the most senior employee of the Union on a term to be prescribed by the CECwhich shall not be less than 3 years. The SG employment contract runs for a period of five years.

When CEC members couldn’t agree on the matter, Mothelesi proposed that legal advice be sought but such proposal was shot down in favour of a vote that endorsed the idea that the contract renewal was in line with the constitution. The next vote endorsed the actual extension of Motshegwa’s contract. Alongside Kesebonye, the Deputy Secretary General and Secretary for Arts, Sports and Culture voted in favour of the renewal while Mothelesi, Seloka and Bato voted against it. Kesebonye broke the tie by invoking a provision that entitles him to a casting vote.

“[Kesebonye] therefore voted twice on the said issue,” Mothelesi states in his affidavit. “The terms of the contract of employment to be concluded with [Motshegwa] were not discussed at the said meeting.”

Some four days later, the contract giving Motshegwa a fixed-term contract of five years was signed with the Union. The contract says that the Union may terminate the contract after the expiration of three months after its commencement, by giving Motshegwa three months’ notice of its intention to do so, and by paying him the remainder or balance of the contract.

Mothelesi raises the objection that Motshegwa’s conditions of employment were never referred to the Governing Council for approval as the constitution requires. He asserts that in appointing Motshegwa the CEC arrogated to itself powers that rightly belong to Congress. He is keen to stress that Motshegwa “is not a member of [BLLAHWU] by virtue of the fact he is not an employee in an industry with which the Union is directly concerned.” A related point he makes is that Motshegwa, who has been SG since 2010, has held that position “in excess of the two consecutive terms of three years” stipulated in the constitution.

As regards the new contract, Mothelesi asserts that the conditions of employment were not approved by the Governing Council and that the remainder-of-contract clause “is clearly prejudicial to the Union and it is not in the best interest of the Union.”

Kesebonye, who deposed to an affidavit on behalf of both the Union and Motshegwa, previews his counter-argument with the declaration that in the course of its evolution, the Union’s constitution has been continuously amended. In service of the latter, he goes on to list various instances when the constitution has been amended and notes how such amendments have affected the SG position. Amendments made in 2007 assumed legal character in 2012 following their approval by the Registrar of Trade Unions and Employers’ Organizations. However, it was only in 2015 (when Motshegwa had been in office for five years) that clauses governing the SG position were implemented. Kesebonye adds with regard to the latter that no one was appointed SG “in the terms provided by the constitution and this was well understood and sanctioned by the Union.”

In the progress of time, the Governing Council adopted a report that recommended that the Union should recruit full-time employee office bearers to be based at its head office in Gaborone. The report also recommended that in order to obviate a situation where it was at the mercy of the employer in terms of secondment and withdrawal of staff that would work at the head office, the Union should recruit its own staff outside the civil service. It was in the course of these developments that Motshegwa was elected to the CEC in 2010. A year later and following refusal by the government to release Motshegwa, secondment of staff to the secretariats of unions within BOFEPUSO was stopped.

After much to-ing and fro-ing on this issue, a February 2015 Special Congress resolved that the Secretary General position would be on a full-time contract of employment and that “thereafter, the Secretary General would no longer be subjected to elections but would be appointed on employment on a contract as envisaged by the Constitution.” Additionally, the Special Congress also “affirmed the powers of the Central Executive Committee to determine the duration and terms of the contract of employment of the Secretary General.” Resultantly, Motshegwa was employed on a full-time basis on June 1, 2015 on a renewable five-year contract. With this development, the position of Secretary General was no longer subject to election and the Union’s Chief Electoral Commissioner issued a new writ of elections to reflect this amendment.

After giving that background, Kesebonye seeks to portray Mothelesi as hypocritical: that he was part of the CEC meeting that employed the Motshegwa on June 1, 2015; was at all times part of the decisions and processes he (Kesebonye) outlines but never queried or challenged any aspect of those decisions and processes. He says the same thing about Seloka and Bato.

“None of the Applicants at any point either questioned, or complained against, the exclusion of the position of Secretary General from the electoral process.”

As regards Seloka, Kesebonye points out that he was a contestant in the elections in which the SG status had been transformed and raised any objections. Mothelesi himself officiated the handing-over ceremony after the elections. When the Governing Council held a meeting in June 2017, the agenda was issued under Motshegwa’s hand.

As regards, Motshegwa’s contract, Kesebonye says that its terms had long been determined by the Governing Council in the first contract and did not require any fresh referral as this was merely a renewal.

“At any rate the Union’s constitution has vested sufficient powers in the president to deal with any contractual matters and conclude them. This is practical and reasonable regard being had to the fact that in a contractual negotiation Motshegwa] would also have an opportunity to engage with the [president] in respect of his employment.”

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