Justice Isaac Lesetedi of the Court of Appeal has berated a BOPEU faction led by its Deputy President Olefile Monakwe for hiding behind the union to fight personal battles.
Delivering judgement and finding that Monakwe held himself out as BOPEU President despite a recent court decision which invalidated his position, Lesetedi ordered that Monakwe should personally pay for the costs of the appeal application brought by BOPEU.
He said BOPEU faction led by its President Masego Mogwera had been put into an unnecessary expense and were entitled to recover costs at an elevated scale as prayed.
BOPEU had prayed that Mogwera and her faction should pay the costs personally.
“Such costs shall however be against the 8th Respondent (Monakwe) on account of his leadership role and he having signed a resolution authorizing BOPEU to appeal the decision (by Justice Mercy Garekwe) and improperly holding himself to be the office bearer which he was not.”
The judgement of the Court of Appeal follows an appeal by BOPEU to appeal Garekwe’s judgement which had found that Monakwe and his faction were not proper bearers of BOPEU secretariat.
Mogwera and her faction had argued that BOPEU lacked a locus standi (the right to be heard) to institute the appeal application.
In the application, BOPEU had filed a document purporting to be an extract of a resolution of the National Executive Committee of BOPEU authorising the filling of the appeal.
The Court of Appeal found that Kaboayone Sedimo, in his capacity as the “General Secretary of the Union” was authorised to give effect to those resolutions.
BOPEU’s extract of the resolution was signed by Monakwe purportedly in his capacity the President of BOPEU. Lesetedi found that the extract does not say who attended the meeting of the National Executive Committee. It was necessary for BOPEU in a case where the resolution was challenged to show that it was relying upon that resolution to prove its validity, he said.
In her answering affidavit, Mogwera described herself as the President of BOPEU. According to the court records, Mogwera had moved swiftly after the delivery of a judgment by Garekwe nullifying Monakwe’s position as President (the same one appealed by BOPEU) to register with the Trade Unions and Employers’ Organisations Act and to obtain the necessary documentation to assert her position as the President of BOPEU.
Mogwera and her faction argued that the extract of the resolution authorizing the institution of an appeal application was not valid as it was signed on behalf of its National Executive Committee by Monakwe purporting to act as President of BOPEU when on the judgement of Justice Garekwe he is no longer its president.
They also argued that Monakwe was the one who was adversely affected by the judgement of Garekwe (the same decision appealed against) and was using BOPEU to fight his own battle while he himself stood by the sidelines.
Lesetedi found that BOPEU failed in its replying affidavit to prove the validity of the resolution. He said in the absence of a valid authorization to do so, Monakwe could not purport to certify an extract of a resolution of BOPEU in his capacity as BOPEU’s President could not he certify in a different capacity without disclosing the authority upon which the certification is made. He said Monakwe being bereft of the powers to act on behalf of BOPEU, Sedmio’s own source of power was of no value and so he could not lawfully depose to the affidavits on behalf o BOPEU.
“What is also evident is that the 8th Applicant (Monakwe) whose powers of control over BOPEU were removed by the judgement of the court a quo (High Court) appealed against has by this application paraded BOPEU as the appellant when he is the real face behind the mask, using BOPEU as a cat’s paw to claw back the power that he has lost through the judgement of the 7th May 2021,” said Lesetedi.
