They walked out of the room to kill the vote, and walked straight into a legal wall. In a landmark 53-page judgement, the High Court has humbled the Manual Workers Union, ruling that scribbling a signature on the PSBC Constitution does not make you a member. After failing to prove the statutory 4,000-member threshold, the union’s bid to nullify the 30 January appointment of Andrew Motsamai and Tobokani Rari as Secretary and Deputy Secretary collapsed. Justice Maripe declared the PSBC is not a private club for anyone with a pen, it is rather a statutory council.(blurb)
The High Court has settled one of the most contentious questions haunting the Public Service Bargaining Council (PSBC): what does it really mean to be a member?
In a judgement delivered by Justice Maripe, the court dismissed the argument advanced by the National Amalgamated Local, Central and Parastatal Workers Union, known as the Manual Workers Union, that signing the PSBC Constitution automatically made it a member entitled to challenge the Council’s affairs.
Manual Workers Union had approached the court seeking to invalidate, among others, the crucial meeting of 30 January 2026, during which it says its representatives walked out and did not participate in the voting process to appoint Andrew Motsamai and Tobokani Rari as the Secretary and Deputy Secretary, respectively, of the Council.
The application is a sequel to an earlier decision by Justice Lekorwe on the 19th of February 2026, after a long and fragmented history of the PSBC Constitution, first signed on 13 May 2025, re-signed on 17 October 2025, and finally registered on 24 November 2025 after approval by the Commissioner of Labour.
The Preliminary Knockout
Before the court could even reach the merits of the January meeting, it had to decide a preliminary point: does the applicant have the legal standing to be in court at all?
The respondents, led by the Attorney General as 1st respondent, argued emphatically that it does not.
Their case was anchored in both the Public Service Act (PSA) and the PSBC Constitution. Section 50(2) of the PSA is explicit: the PSBC shall consist of Government as the employer, and trade unions that meet the threshold for admission in terms of the constitution of the Bargaining Council.
Section 52 repeats the refrain that the Council shall consist of representatives of Government and representatives of trade unions admitted, in accordance with the Council’s constitution.
Clause 8 of the constitution agreed to by all parties present provides: “The threshold for admission to the Bargaining Council shall be 4000 members.”
The respondents argued that on either the Act or the Constitution, the Manual Workers Union had failed to show it meets that threshold, and therefore is not a member. Without membership, there is no capacity to challenge.
Manual Workers Union saw it differently. It argued the PSBC is a voluntary association, a private organisation, an unincorporated association, whose membership is defined by signature. In its view, the very fact that it signed the constitution conferred membership, a doctrine of membership by signature. In its heads of argument, it leaned heavily on this private-contract view.
Justice Maripe dismantled that argument.
“The PSBC is therefore no ordinary voluntary association arising purely from the independent will of privately contracting parties who are at liberty to accept whoever they wish and exclude whoever they do not want among their ranks,” the judge held.
“Membership, even for non-signatories, is determinable not only on the Constitution but also by reference to the Act (PSA) to which it owes its existence. This requires a survey of the provisions of the Act and those of the Constitution in order to determine eligibility for membership.”
The judge traced the threefold statutory process that Parliament designed to operationalise collective bargaining.
First, amendment of the Public Service Act to remove pre-2025 bottlenecks. Second, Government and the unions agreeing on a proposed constitution and submitting it to the Commissioner, Parliament giving the parties latitude to do everything by agreement to further the objectives of the PSBC. Third, submission to the Commissioner of Labour (COL) for approval and gazettement.
All three steps were completed. The parties signed, the COL approved and registered the constitution. By signing, they bound themselves to all its clauses, including the one on membership.
The Constitution Speaks For Itself
The court found the constitutional language to be clear and deliberate, with underlining built into the original document to emphasise admission.
Clause 7.1 reads: “The parties to the Bargaining Council is Government in her capacity as the employer and all trade unions admitted to the Bargaining Council.”
Clause 8.1 states that any recognised trade union or any two or more trade unions acting jointly ( combined as a single entity) may be admitted to the Bargaining Council provided such a trade union(s) meet the required threshold for admission into the Bargaining Council.”
The synergy between the Act and the Constitution is intentional. The threshold is not an internal house rule; it is a statutory requirement. If it is not met, “an illegality will eventuate,” the judgement warns.
Why? Because the PSBC performs a public function, it collectively determines the terms and conditions of service of numerous public service employees. That is why Parliament intervened to provide the legislative environment for its operation.
The court accepted the Manual Workers Union’s citation of Govender v Textile Workers’ Industrial Union SA Durban Branch and Others 1961 (3) SA 88 (N), where Justice Wessels said: “In an association… the members are bound by contract to one another and the terms thereof are reflected by and enshrined in the constitution.”
But that contract, Justice Maripe held, embodies terms and conditions upon which members agree to become bound. One of those terms is that you must be admitted. Signature creates a contractual bond between signatories, but it does not bypass the admission clause that the same signatories wrote and signed.
In essence, the court distinguished between two concepts: membership by signature versus membership by admission.
The judge concluded that the applicant’s interpretation would reduce a statutory council created to serve the public service into a private club. The legislature envisioned a council of Government and trade unions that meet the threshold, not Government and anyone who managed to append a signature at a meeting on 13 May 2025.
The ruling has far-reaching implications. It affirms that no union, however vocal, can walk into the PSBC or drag it to court without first proving 4,000 members. It protects the Council from fragmentation by small unions, while upholding the sanctity of the constitution the parties themselves negotiated, signed, and had registered.
The court also dealt with a procedural hiccup: the Attorney General had failed to file papers on time and had to apply for leave to file out of time, opposed by Manual Workers Union. On 3rd July 2026, the parties reached a consent order, made an order of court, allowing the answering affidavit to be filed on pain of costs, permitting a reply, and staying the processes of the Council pending delivery of the judgement. Full pleadings were thereafter filed.
With locus standi resolved on the principle that membership requires meeting the 4,000 threshold and formal admission, not mere signature, the foundation was laid for the court to determine the validity of the 30 January 2026 meeting and the appointments made therein.
The judgement sends a clear message to Botswana’s labour movement: in the PSBC, you do not join by pen, you join by threshold.
On the Meeting of 30 January 2026, the court found that while the Manual Workers Union representatives walked out and did not sign off the resolution appointing Motsamai and Rari as Secretary and Deputy Secretary, the validity of that meeting must be assessed in light of membership status. Manual Workers, not being an admitted member under Clause 8, could not invalidate the meeting on the basis of its walkout. The Council’s processes, which had been stayed by consent order of 3rd July 2026 pending judgement, were found to have been conducted by the properly constituted parties, Government and admitted trade unions.
The court also referenced the Interim Committee agreement of 10 December 2025, which the parties had used to bridge the gap after registration on 24 November 2025.
The court in its final orders declared that membership to the Public Service Bargaining Council is governed by Section 50(2) and 52 of the Public Service Act read with Clauses 7 and 8 of the PSBC Constitution, and that the threshold of 4,000 members is a statutory requirement for admission.
Justice Maripe further declared that signature to the PSBC Constitution does not, by itself, confer membership to the PSBC; membership is acquired by admission upon fulfilment of the threshold requirement.
He also declared that the applicant has not demonstrated that it meets the 4,000-member threshold and is therefore not an admitted member of the PSBC for purposes of challenging the affairs of the Council under Claim A and B, to the extent that such challenge is founded solely on signatory status.
The court dismissed Manual Workers Union’s relief seeking to declare invalid the meeting of 30 January 2026 and the appointments of the Secretary and Deputy Secretary made therein on the grounds of the Manual Workers’ non-participation, as the applicant lacked locus standi as an admitted member.
The Court ordered that the stay of the processes of the Council, imposed by the consent order of 3rd July 2026, is hereby uplifted.
Moreover, the Court ordered that costs follow the event, with the Manual Workers bearing the costs of the Attorney General occasioned by the late filing of its opposing papers as per the consent order, and no order as to costs against the other respondents where their participation was necessary for proper constitution of the Council.
