MOGWERA AND TEAM FACE REMOVAL FROM BABEREKI INVESTMENTS
• Babereki Investments ordered to convene AGM • BOPEU leadership intends to remove Mogwera and team from Babereki directorship at AGM
The investment arm of Botswana Public Employees Union (BOPEU), Babereki Investments (Pty) Ltd, has been ordered to convene an Annual General Meeting (AGM) which may permanently remove BOPEU expelled president Masego Mogwera and two others from Babereki directorship.
Masego Mogwera and two others, namely Martin Gabobake and Tlhabologo Galekhutle, made an urgent application to set aside a decision by BOPEU to remove them as directors of Babereki Investments.
Led by the General Secretary Kaboyaone Rash Sedimo, BOPEU opposed the application in vain but strategically made a conditional counter-application proposing that should it be found that there was non-compliance with the Companies Act by Babereki Investments, an AGM would be held in order to ensure compliance and attend to other company matters, including removal of directors.
Both parties were partially successful at the High Court. It passed judgment in favour of Mogwera and the two others with regard to BOPEU’s decision to remove them as directors. However, Justice Jenifer Dube found that there indeed was non-compliance with the Companies Act by Mogwera and her Board, among other incidents citing their failure to meet timelines for furnishing financial statements. Justice Dube thus ordered the Babereki Board of Directors Chaired by Mogwera and others to convene an AGM.
The effect of this decision was that although Mogwera and others are still regarded as directors, BOPEU could lawfully vote to have them removed at an AGM. This is an AGM that they have been opposed to for months. Mogwera and the two others appealed the decision ordering the AGM but BOPEU consequently cross-appealed the decision holding their removal to be unlawful.
At the Court of Appeal, a bench led by the Judge President Ian Kirby identified one central issue: which was whether an AGM should be held by Babereki Investments. The Court of Appeal held that the removal of Mogwera and her colleagues was unlawful. However, they suffered a major blow in that the Court of Appeal also ordered them to convene an AGM.
"Mr (Sidney) Pilane (for Ms Mogwera and others) insisted that it was the desire of his clients, (Babereki Investments) and its Board of Directors (or some of them) to hold the annual general meeting as soon as possible,” said Justice Kirby. “This is borne out neither by their strenuously argued counter-appeal designed to thwart the holdings of such meeting nor by their failure to call such a meeting subsequent to the failed attempt in February 2020."
“In view of the expressed desire to both parties to have the 2019 annual general meeting convened, the court requested the views of both parties as to the appropriate order. Tshiamo Rantao and Botlhole, for BOPEU, were forthcoming, while Advocate Pilane, for Mogwera and her team, was adamant that to make such suggestions would equate to agreeing a settlement, and this his clients were not prepared to do.”
In essence, it was surprising that Mogwera and her team claimed to have a desire to hold an AGM and yet strenuously opposed an application by BOPEU for an order for the AGM to be held, the judge observed.
The Court of Appeal found that Justice Dube was correct in calling for an AGM in the best interests of Babereki Investments as soon as possible. It ordered that an AGM be held no later than 25 April 2021 with the service of the necessary notices and proposed resolutions within five days of the judgment with observance of all applicable COVID-19 protocols.
It therefore seems highly likely that Mogwera and her board members will be easily removed owing to the fact that they do not seem to have the numbers when the crunch-time for voting arrives at the Babereki AGM.