Ketlhalefile Motshegwa is having the last laugh against Botswana Public Officers Pension Fund (BPOPF) Chairman, Solomon Mantswe after court ordered his reinstatement as a Trustee representing Botswana Landboards, Local Authorities and Health Workers Union (BLLAHWU).
Motshegwa and his trade union, BLLAHWU where he is the Secretary General sued BPOPF after Mantswe ochestrated a spirited fight to have him expelled from the Board because he had stood as a candidate contesting a parliamentary seat in the 2019 general elections under the Umbrella for Democratic Change (UDC). BLLAHWU was represented by its attorney Nelson Ramaotwana.
Delivering the judgment four weeks ago, Lobatse High Court Judge Mercy Garekwe said BPOPF are compelled to admit Motshegwa on Board of Trustees of BPOPF with immediate effect. Garekwe also ordered that the decision by the BPOPF Board of Trustees to expel Motshegwa from the board on 16th October 2019 is invalid and\ or unlawful and \or unreasonable and is null and void and of no force and effect noting their decision to remove him is now set aside.
Also, Justice Garekwe said the respondents shall pay the costs of the review application jointly and severally the one paying the other to be absolved, adding to the BPOPF woes on the matter. The High Court has slapped BPOPF and Mantswe with costs after Justice Garekwe ruled that their attempt to expel Secretary General of Botswana Landboards, Local Authorities and Health Workers Union (BLLAHWU), Ketlhalefile Motshegwa from the board was unlawful.
“The Risk Comittee (of the Board of Trustees) and the Board alike took into consideration irrelevant considerations, disregarded relevant considerations and worst still relied on generalised and unexplained considerations to reach the decision they did. The decision made is irrational, unreasonably, arbitrary and unlawful and therefore stands to be reviewed and set aside,” reads part of Justice Garekwe’s judgment delivered on March 01, 2021 in Lobatse.
Mantswe had on 16 October 2019 written a letter to Motshegwa and his trade union notifying them that the board had taken a decision to terminate his membership as a trustee because he was conflicted due to his contest for public political office to serve as a Member of Parliament in the 2019 general election. Motshegwa was the Umbrella for Democratic Change (UDC) parliamentary candidate for Gaborone Bonnington South constituency where he lost out to Christian Greef of the ruling Botswana Democratic Party (BDP).
Mantswe said by availing himself for political office, Motshegwa had breached BPOPF board code of conduct which has potential to harm the image of the Fund notwithstanding that Head of Corporate & Commercial at Minchin & Kelly, had advised BPOPF Board against such a finding. Through a legal opinion, Minchin& Kelly advised that conflict of interest is a situation in which a person has a private and personal interest sufficient to appear to influence the objective exercise of his or her official duties as a professional. Therefore, for Motshegwa to have breached his duty of good faith he must have either entered into transactions with BPOPF, competed with BPOPF, used the corprorate assets and information of BPOPF, or used opportunities to make secret profits contrary to the knowledge of BPOPF. “The facts do not suggest that Motshegwa’s decision to contests for the Parliamentary candidacy in Bonnington South constituency presents an actual conflict of interest,” reads the legal opinion from Michin &Kelly.
Adamant that Motshegwa had not breached any Fund rules, BLLAHWU Central Executive Committe, led by President Thatayaone Kesebonye sued BPOPF and Mantswe. “Motshegwa never entered into transactions with any organisation competing with BPOPF, nor used corporate assets and information of BPOPF to make secret profits as envisaged in the spirit and letter of the rules of the Fund,” observed Kesebonye.
Justice Garekwe also found that there was no conflict interest in Motshegwa’s contest for elections. “It cannot be a legitimate or relevant consideration to hold that Motshegwa will be conflicted when dealing with matters of those who may have made financial contributions to his campaign, because tis disregards the fact that the Fund Rules provide for recusal processes where one is conflicted and when a matter he has interest in tabled before any Fund Structures,” she said.
Garekwe also said it has not been suggested that Motshegwa was ever in the habit of sitting in matters where he was conflicted. “But he in fact voluntarily recused himself from the Board proceedings of 15th October 2019, though that was not a special general meeting called to deal solely with the issue at hand which concerned him. It is ironic that the Respondents have sought to curiously dismiss this very point where the Applicants have contended that the Fund Rules allows for a recusal of a Trustee in the event of conflict of interest,” said Garekwe buttressing that the Board decision is invalid.
Earlier when expelling Motshegwa from BPOPF Board, Mantswe said in one of the letters to the BLLAHWU lawyers in 2019; “As Chairman of the Board, one of my core functions as stipulated in the Board Charter is to set the ethical tone for the Board. It is in discharge of this specific function that I wrote the letter to your client and any suggestion that this was motivated by any other interests than those of the Fund that is unwarranted,” said Mantswe Mantswe through the letter dated 7th May 2019 said he sought to bring their client’s attention the political risk exposure accompanying his candidacy for a prominent public political office.
Motshegwa was not available for comment at press time as he didn’t answer calls into his phone.
Earlier on 7th May 2020, Mantswe had unilaterally written a letter suspending Motshegwa from the board but reversed the decision ten days later after being cautioned by Ramaotwana of such unlawful conduct. Five months later, presumably after consulting with other board members, and fully aware of the legal opinion from Minchin&Kelly Mantswe went for the kill, this time expelling Motshegwa from the Board.
Rubbishing Mantswe’s claim that politics conflict with the business of BPOPF and has potential to harm its image, Deputy Secretary General of BLLAHWU, Motshidisi Onyebo Mafoko, deposed to an affidavit citing examples to the contrary.Drawing comparisons, Mofako said re-appointment of Motshegwa was in line with government position as regards the appointment of Dorcus Makgato as Ambassador to Australia after losing Sefhare-Ramokgonami constituency under the BDP ticket. “It is the position of the employer trustee that politicians are bad omen or prohibited in sitting in statutory boards of trustees. Mantswe is not pursuing a government policy as employer trustee nor BPOPF policy but his personal vendetta against Motshegwa,” said Mafoko in a scathing attack.
Mafoko then described an elaborate concerted efforts by Mantswe to terminate Motshegwa’s trusteeship at BPOPF. First was the unlawful unilateral decision to suspend Motshegwa from all Board and committee meetings in 7th May 2019, which was withdrawn only a week later after Ramaotwana intervened. Before the controversial failed suspension, Mantswe had in April 2019 lobbied the Human Resource and Remuneration Committee (HRRC) to make a recommendation to the Board of Trustees to expel Motshegwa. The HRRC refused. Mantswe then reported the matter to the Risk Committee, who accepted the legal opinion from Minchin&Kelly that there was no conflict of interest emanating from Motshegwa contesting national elections. The then Employer Trustee Ruth Maphorisa, Neo Dudu Joel representing NALCGPWU and Rutang Moses -an independent Trustee, sat in the Risk Committee. Notwithstanding their recommendation, Mantswe disregarded the advise from the Risk Committee and brought the matter before a meeting of the Board of Trustees. During the Board meeting he presided over the discussion of the matter referred by him to the Risk Committee. Mantswe did not recuse himself despite that he had earlier unsuccesfully lobbied the Human Resource and Remuneration Committee against Motshegwa.
“Mantswe was conflicted as he was interested in showing Motshegwa the door regardless of evidence to the contrary. He was a complainant, whistle blower, prosecutor and judge all at once,” said Mafoko, adding that contrary to the rules of natural justice Motshegwa was never given achance to make presentation prior to Mantswe terminating his occupancy of the Board of Trustees.