Lobatse High Court Judge Jennifer Dube has interdicted the removal of troubled Babereki Investments (Pty) ltd Board of Directors led by Masego Mogwera.
The court further ordered for investigation by police of possible forgery regarding a document that was used and purported to be a resolution of shareholders.
Mogwera who is currently fighting for survival within Botswana Public Employees Union (BOPEU) and its business arm, Babereki Investments has challenged for the second time an attempt to overthrow her from the office of Babereki Investments where she serves as Chairperson of the Board of Directors.
She is challenging her removal together with Martin Gabobake and Tlhabologo Galekhutle. They have brought the case on urgency against Kaboyaone Sedimo, Panana Dipatane, Mandla Gunda, BOPEU, Registrar General of Companies and Intellectual Property Authority (CIPA) for their removal as directors.
Justice Dube this week ordered that the matter be treated as one deserving of urgency. She said the purported ‘unanimous resolution of the shareholders of Babereki Investments’ in lieu of a meeting in terms of Section 107 of the Companies Act dated 7th July 2020 is declared unlawful and is set aside.
Justice Dube directed the 5th Respondent (Registrar General of CIPA) to reinstate Mogwera and Gabobake in the official records of CIPA as the members of the Board of Directors of Babereki Investments (Pty) ltd. “The Applicants shall remain members of the Board of Directors of the 1st Applicant (Babereki Investments (Pty) ltd until lawfully removed in terms of the Constitution of the 1st Applicant as read together with the Companies Act, and in full compliance with the judgement of Ketlogetswe J under case No. UAHGB-000119-19 as confirmed by the Court of Appeal under case No. CACGB-000116-19,” ordered Justice Dube.
The judge further revealed that a document signed by Sedimo, Dipatane and Gunda purporting to pass a unanimous resolution of the shareholders of Babereki Investments in lieu of a meeting in terms of Section 107 of the Companies Act dated 7th July 2020 was a “false and fraudulent document”.
The judge ordered the Borakanelo Police Station “to carry out an investigation on the possibility of forgery, uttering a false document and or giving false information against the 1st, 2nd and 3rd Respondents, based on the contents.”
The judge further ordered that the 1st, 2nd and 3rd Respondents be adjudged to be in contempt of the court order of Judge Ketlogetswe of 23rd May 2019 in the case of Babereki Investments and four (4) others v Olefile Monakwe. Judgement on the final determination of the application has been reserved for October 23rd 2020.
In the cited Justice Gaopalelwe Ketlogetswe case the decision of BOPEU President Olefile Monakwe to fire the Board of Directors of Babereki Investments (Pty) Ltd was nullified. Mogwera succeeded in her bid to challenge her dismissal from the company along with Gabobakwe, Galekhutle and Otto Itumeleng who were on April 27 2019 dismissed by Monakwe.
In May last year the trio successfully secured a temporary restraining order against Monakwe, in an urgent court case at the Lobatse High Court, which was subsequently confirmed as a final court order by Justice Gaolapelwe Ketlogetswe. Monakwe then approached the Appeals Court for the decision of the lower court to be dismissed. In his judgement, Ketlogetswe said the matter was deserving of urgency in order to resolve the controversy surrounding the governance of Babereki Investments, a company running into millions of pula and protect its interests.
He said the decision to purportedly dissolve the Board of Babereki Investments was not taken at a meeting called in terms of the company’s constitution or in terms of the Companies Act. He pointed out that the respondent seems to suggest that because BOPEU is the sole shareholder of Babereki Investments, it can through its National Executive Committee purport, and constitute itself, as such, at a shareholders’ meeting and make decisions affecting the business affairs of Babereki Investments without recourse to the constitution of the Babereki Investments as well as the Companies Act.
According to the judge, Monakwe misconstrued the contractual and constitutional relationships between BOPEU as a trade union and BOPEU as a shareholder in relation to Babereki Investments.