In the latest ruling in the case between the Botswana Public Employees Union (BOPEU) and Standard Chartered Bank, the Gaborone High Court has struck out an application to have Topias Marenga as a party to the proceedings, The Business Weekly & Review has established.
The exclusion of Marenga dealt a severe blow to the Masego Mogwera faction which purported that he was the union’s General Secretary while Monakwe and Co. argued that his contract with BOPEU long ended.
Before the court threw out Marenga’s attempt to be included in the fight for the union’s main account in a case before High Court Judge Dr. Zein Kebonang, Marenga was still an unwanted man at BOPEU.
At a press briefing in mid-May, then BOPEU 1st Deputy President Donald Mekgwe asserted: “The contract for Topias Marenga was terminated on the 2nd May 2019. He chose not to challenge his dismissal at any point. It is important to note that Masego Mogwera stated in her recent radio interview that she and her imagined NEC extended the contract of the said Topias Marenga in December despite the fact that the judgement on her expulsion was just delivered yesterday; it follows therefore that the so-called contract extension was unlawful.”
Mekgwe said this before power shifted hands by way of court orders that sought to restore sanity at the union. In the matter at hand, Mogwera and Marenga sought to be joined as respondents in proceedings that were instituted by BOPEU against Standard Chartered Bank on May 25 2021. This is the case relating to the unfreezing of the union’s main bank account.
Court papers seen by this publication cited Marenga as third applicant.
The background to the matter is that on 25 May 2021, BOPEU filed an urgent application against Standard Chartered after Mogwera instructed the bank to freeze the account. BOPEU argued that the decision was illegal and was granted relief by the court.
Mogwera then approached the courts the next day with an application for joinder (to the proceedings) and obtained a restraining order interdicting the Monakwe faction from accessing the account that forms the bone of contention herein.
Delivering his ruling this week, Justice Kebonang stated that the applicants (BOPEU, Mogwera and Marenga) filed a notice of withdrawal of the interdiction application (which was granted by the court). “The first applicant, BOPEU, had previously moved court on urgency and obtained certain interim relieves against Standard Chartered Bank,” he said.
Justice Kebonang noted that Mogwera contended that the rebel arm of BOPEU launched the application that didn’t have her blessing as president. The applicants held the view that only the 2nd applicant (Mogwera) could sign legal proceedings on behalf of the 1st applicant (BOPEU).
“When the joinder application was finally heard on the 11th June 2021, Mr (Dutch) Leburu, learned counsel for the applicants, indicated that the applicants no longer wished to pursue the joinder application in respect of the 1st applicant (BOPEU) as they now accepted that it (BOPEU) was properly in court,” said the judge. “The joinder application was only to be pursued with respect to the 2nd and 3rd applicants (substantive joinder).”
Here is where Marenga’s fall comes in. BOPEU’s attorney Gabriel Kanjabanga argued that Marenga had no legal right or interest in the matter between the union and Standard Chartered Bank. “He (Kanjabanga) further argued that the 3rd applicant (Marenga) was non-suited as he was no longer the General Secretary or an employee of BOPEU, his contract of employment having come to an end in December 2020,” the ruling stated.
However, before Marenga’s exit, prominent attorney Leburu, who represents Mogwera and Marenga, was caught out and failed to defend. In the aftermath, Justice Kebonang said Leburu did not seek to deal with averments made by his counterpart Kanjabanga but rather relied on the technicality that Kanjabanga had filed his answering affidavit late.
“In the answering affidavit that Mr Leburu says was automatically bared, BOPEU had alleged that the 3rd applicant had no locus to institute the joinder application or maintain it as he was no longer an employee of the union, his contract having (ended) in December 2020,” Justice Kebonang stated.
In the detailed ruling, the judge maintained that BOPEU’s answering affidavit ought to have been responded to as it was critical in determining the suitability of Marenga to be joined to the proceedings.
“In the absence of a replying affidavit negating or taking issue with the averments raised in the answering affidavit, BOPEU’s assertions that the 3rd applicant was not their employee or the General Secretary and therefore non-suited to bring the joinder application ought to be accepted,” Justice Kebonang ruled.
After dismissing Marenga, the court ruled that the substantive joinder application be granted with respect to the 2nd applicant (Mogwera) and that the 2nd applicant shall now be the 2nd respondent in the main application.