“The second and third respondents are partners in a business called Leiso Projects (Proprietary) Limited. They hold equal shares in the said company, and they are both directors of the said company.”
The second respondent is Ketlhalefile Motshegwa who is the Secretary General of the Botswana Land Board, Local Authorities & Health Workers Union (BLLAHWU), the third respondent is Thatayaone Kesebonye, the Union’s president, and this assertion has been made by the First Vice President, Nicholas Mothelesi in an affidavit that he has deposed to.
Mothelesi makes this assertion in service of backing up his claim that Kesebonye unethically used his casting (tie-breaking) vote to decide a union matter that involved and benefitted his business partner. The Union’s Central Executive Committee (CEC) had met to discuss the issue of extending Motshegwa’s contract and there was a three-three tie when the matter was put to a vote. Kesebonye’s casting vote settled the matter in favour of contract extension.
“It is my averment that because of hispersonal relationship with the second respondent, the third respondent voted twice to ensure that his business partner secure employment and signed a contract of employment with terms which are more favourable to his partner and prejudicial to the Union. He did not have the best interest of the Union at heart in signing the said contract,” Mothelesi argues in his affidavit.
As should be evident, Mothelesi opposed the extension of Motshegwa’s contract, stating at the meeting that retaining Motshegwa as a Union employee would go against what the Union’s constitution prescribes. According to parts of that constitution that he quotes in his affidavit, members of the Central Executive Committee, who include the Secretary General, are elected by the Congress, which is the supreme body of the Union; the CEC holds office for three years and with a two-term limit; only shop stewards are eligible to be elected as members of the CEC; and the Secretary General’s contract is supposed to run for a period of five years.
The other two CEC members who held the same view were Baone Seloka (Treasurer) and Boemo Bato (Second Vice President). Both have deposed to affidavits in support of the case that Mothelesi makes in his own.
In terms of the contract in question, Motshegwa was given a fixed-term five-year contract that the Union may terminate after the expiration of three months after commencement. The contract also gives Motshegwa three months’ notice of its intention to do so, and when that happens, the Union will pay him the balance of the contract. Mothelesi contends that these conditions of employment were not approved by the Governing Council and that the remainder-of-contract sub-clause “is clearly prejudicial to the Union and it is not in the best interest of the Union.”
The other argument that he makes is that when CEC members were called upon to disclose their interest in the matter, Kesebonye did not disclose thathe had a business relationship with Motshegwa.
“He participated in the proceedings and continued to draft and sign the contract of employment with the second respondent.”
Conversely, Kesebonye states that there was never any conflict of interest on his part and resultantly, no need to make any sort of disclosure. He then makes a detailed explanation of processes that BLLAHWU uses to engage in commerce. Where it establishes special purpose vehicles, “certain of the [Union’s] office bearers or employees are from time to time tasked to hold shares for and on its behalf as directed.”
The Union owns a company known as Mokaulengwe Investments which has registered several subsidiary companies to conduct business on behalf of the Union as a beneficial owner. Leiso is one of those companies and Mokaulengwe is a beneficial shareholder in it. As regards his and Motshegwa’s role in Leiso, Kesebonye states that their directorships are a result of a warehousing agreement that they signed with Mokaulengwe as office bearers in the Union. In terms of that agreement, each holds 50 percent shareholding in Leiso on behalf of Mokaulengwe.
“The Second and Third Respondents are not owners of or beneficial shareholders in Leiso, and have absolutely no personal interest therein and no benefit or slightest emolument accrues to any one of them on account of Leiso or even Mokaulengwe. There is thus no interest bearing any disclosure in relation to any of them in regard to Leiso,” Kesebonye argues in his affidavit.
In perhaps the most combative part of his affidavit, he accuses Seloka (who is the second applicant) of “lying” and asks the court to punish him for that. The first point he makes is that Seloka is a member of the Mokaulengwe Board of Directors.
The second is that “by reason of his role as a member of the Board of Mokaulengwe, the Second Applicant is fully aware of the correct, accurate and true state of affairs and he has chosen to pad a non-existent case and lie to this Court. His conduct is callous in the extreme and calls for the highest censure by the Court. I would implore the Court to mark its deprecation of his conduct, and indeed the conduct of both the applicants with, punitive costs.”
With regard to the extension of Motshegwa’s contract, Kesebonye argues that over the years, the constitution has evolved away from the state of affairs that Mothelesi describes and that such evolution legitimises both the contract extension and the conditions of employment extended to Motshegwa.
