Botswana: Mantswe, Bpopf Sued

25 November 2020

Botswana Public Officers Pension Fund (BPOPF) and its Board Chairman, Solomon Mantswe, are headed for a showdown before the courts with Botswana Landboards, Local Authorities and Health Workers Union (BLLAHWU), following the expulsion of Ketlhalefile Motshegwa.

The trade union, through attorney Nelson Ramaotwana, is suing BPOPF seeking reinstatement of Motshegwa - who is their Secretary General and nominated Trustee to the Board. The union rejects the decision of the board of trustees.

Mantswe had on 16 October 2019 written a letter to Motshegwa and his trade union notifying them that the board has 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.

In the termination letter, 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. After engaging legal experts to advice on the matter, BLLAHWU Central Executive Committee, led by President Thatayaone Kesebonye resolved on 28 October 2019 that Motshegwa had not breached any rules and therefore his termination was unreasonable and should be reversed.

In his letter to Mantswe, Kesebonye insisted that "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.

Providing legal opinion to BPOPF on the matter, Head of Corporate & Commercial at Minchin & Kelly, Isaac Ntombela had observed that conflict of interest is not defined under the Fund's code of conduct, the board's charter and the Rules of the Fund.

However, obtaining guidance from a common law definition, Ntombela said 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 or any Trustee to have breached his duty of good faith he must have either entered into transactions with BPOPF, competed with BPOPF, used the corporate 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," Ntombela concluded.

Earlier on 7th May 2019, Mantswe had unilaterally written a letter suspending Motshegwa from the board but reversed the decision 10 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 an affidavit citing examples to the contrary. He said the Board of Directors of Air Botswana (AB) and Botswana Stock Exchange (BSE) - where BPOPF is heavily invested - are led by Botswana Democratic Party (BDP) activist Tebogo Masire as Chairperson. Masire is the former Botswana Defence Force (BDF) Commander, now retired.

"If BPOPF stakeholders hate politics with passion as alleged by Mantswe the BPOPF Board would have not invested the Fund's money into Botswana Stock Exchange which is chaired and led by a politician. Trade unions as civil societies have a political duty to ensure that the employer Trustees controlled by politicians (Cabinet ministers and Parliament which approves the budget) are held accountable and in check," wrote Mafoko.

Giving background and context over the nomination of Motshegwa as a Trustee, Mafoko said the mission of trade unionism is to promote and protect democracy, a position also adopted by the five public sector trade unions that currently form part of the BPOPF Board of Trustees under the Thaba Thula Declaration.

The five trade unions are members of BOFEPUSU, whose constitution provides that the federation will support and assist trade unions to advance educational, political and economic knowledge in order to build capacity to effectively defend their interests. Further, he said, BLLAHWU Constitution provides that in relation to society the trade union will strive for economic, social, political justice and equality in order to achieve prosperity for all.

"I aver that the foregoing Article 2.3.1 of BLLAHWU constitution encourages its members to partake in national public office to pursue political justice in the national assembly. Pursuant to Article 2.3.1, BLLAHWU resolved to deploy Motshegwa to contest for Parliamentary seat at Gaborone Bonnington South to go to the National Assembly to strive for economic, social and political justice at the workplace in particular and in our society generally. BLLAHWU further resolved that Motshegwa would continue holding all positions in the union prior to and post 23 October 2019 general elections if he did not win the parliamentary seat. He would relinquish all such positions if he won," said Mafoko, adding that Motshegwa was re-elected Secretary General of BLLAHWU at a national elective congress in Francistown in December 2019 after he lost the October 2019 general election.

Witch-hunt, Persecution

Drawing comparisons, Mafoko said such re-election and 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. Other notable BDP politicians appointed to public service include Ame Makoba, Lesego Motsumi, Duke Lefhoko and Lebonaamang Mokalake. In fact, Bernard Bolele contested elections under the BDP ticket while remaining a Board member at Air Botswana.

"It is not 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 an employer trustee nor BPOPF policy but his personal vendetta against Motshegwa," said Mafoko in a scathing attack.

Mafoko then goes on to 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 advice 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 unsuccessfully 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 a chance to make presentation prior to Mantswe terminating his occupancy of the Board of Trustees.

Selective judgment

In stark contrast, other BPOPF Board members among them Carter Morupisi and Accountant General, Emma Peloetletse were given an opportunity to present their side of the story before adverse verdicts were made against them. The two were alleged to have received some benefits from a BPOPF service provider, Capital Management Botswana (CMB), which they never declared to the Board. Eventually they were expelled from the Board and both cases were referred to the Directorate on Corruption and Economic Crime (DCEC) for further investigation, which led to the on-going Morupisi trial while Peloetletse's matter is still pending.

Further, Mafoko argues that as senior police officer Mantswe is under the control of the Commander-in-Chief -President Mokgweetsi Masisi, who is a politician who recently contested elections under the BDP stable. Mafoko also posits that Government Trustees are appointed by the Office of the President - which is led by a politician in his capacity as the president of the ruling Botswana Democratic Party (BDP).

Another surprising revelation is that Neo Dudu Joel, who represents the Johnson Motshwarakgole led NALCGPWU (former Manual Workers Union) in the BPOPF board is alleged to be the whistle-blower in the Motshegwa matter. BLLAHWU and NALCGPWU are both members of BOFEPUSU. Politically, Joel is a card carrying member of the opposition Botswana National Front (BNF) and by extension the UDC, confirmation of which was obtained from Secretary General, Moeti Mohwasa (who also doubles as UDC Head of Communications). On the other hand, Rutang Moses - an independent Trustee - is a BDP card carrying member who recently expressed interest to contest the party primary elections in her home village of Moshupa but was knocked out through a technicality. Coincidentally, President Masisi also comes from Moshupa.

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