Sunday, October 25, 2020

Warring GU factions leave court empty-handed … for now

Gaborone United’s warring factions will have to wait until January next year to learn whether their controversial 2015 Annual General Meeting was constitutional. The ruling is expected to bring to a closure a bitter saga that ran for nearly two years.

Appearing before Justice Leatile Dambe at the Gaborone High Court, both the GU factions were at pains to explain how they have failed to resolve the issue. Presenting his client’s case before the court, Uyapo Ndadi, who was appearing for the applicants, said the thrust of the case was whether “a body not forming a quorum as per the dictates of its constitution can go ahead with its AGM”.

In his arguments, Ndadi said as per the GU constitution, an AGM cannot go ahead unless a certain number of members are in attendance. “We are not in dispute that Clause 15.1 of the constitution of GU tells the requisite number of members needed to form a quorum,” Ndadi said.

According to the clause, “two thirds of the registered members at an Annual General Meeting shall constitute a quorum.” Ndadi further said there was no dispute between the two parties that as in March of the said year, the membership of GU stood at 900. “There is no dispute that only 234 members attended the said AGM,” Ndadi explained.

He further explained that in such an event, where a quorum was not met, the meeting should have been adjourned and another one called in accordance with the provisions of clause 15.2 of the GU constitution.

He said as per the stipulated clause: “In the event that a quorum is not achieved, the meeting shall stand adjourned and notice of another meeting will be called after 14 days’ notice at which one third of the registered members shall constitute a quorum.”

Ndadi’s presentation that there was no dispute on the points of argument prompted an interjection from Justice Dambe, who sought to know why the constitution was not followed. She questioned why the matter came before to court while the two parties could have sat down and advised their clients.

Responding to Justice Dambe’s query, Ndadi said the hard-line stance taken by the respondents made it hard for the matter to be resolved. He said the applicants had approached the Registrar of Societies as well as met with the respondents but no resolution was found. He said in their correspondence and court arguments, the respondents have cited clause 13.3.6 and 13.3.7 of the constitution, which he said was “bizarre and does not make sense”. He further argued that contrary to the respondents’ argument the matter was just a review order; the matter was constitutional.

He said if a quorum at the AGM in question had been formed, there would be no issues.  In his response, the respondents’ attorney Lore Morapedi argued that the matter should not be entertained as no minutes of the said AGM had been put forth to show that no quorum was formed at the meeting.

He said without the minutes of the AGM, the court was in no position to make factual findings. Lore also argued that the matter was just some review proceedings which should not have made it to the courts. Concerning the applicants seeking a declaratory order from the court, Morapedi argued that for such to be provided, the rights of the applicants should have been infringed upon. He, however, said this was not the case as the applicants, as paragraph 20 of their affidavit say none of their rights have been infringed.

Morapedi said there was also no advantage which the applicants will accrue from the sought declaratory order.

Responding to Morapedi’s arguments, Ndadi questioned why the applicants agreed with the then team Secretary General Herbert Letsebe’s in paragraph 21 of their answering affidavit that he (Letsebe) informed the meeting that a quorum was not met for the meeting to continue. On the issue of the applicants seeking a declaratory order, Ndadi said for such to be sought “there must be complete controversy”. He said in the matter at hand, there was controversy.

He further said for a declaratory order, relief must be there and in this case, the applicants are seeking the courts to declare the 2015 AGM a nullity. The ruling on the matter is expected on January 27 next year or “may even be earlier”, according to Justice Dambe.

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