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[2016] ZASCA 24
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South African Municipal Workers' Union and Others v Mokgatla and Others (20810/2014) [2016] ZASCA 24; [2016] 2 All SA 451 (SCA); [2016] 6 BLLR 560 (SCA); (2016) 37 ILJ 1317 (SCA); 2016 (5) SA 89 (SCA) (18 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20810/2014
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS’ UNION
FIRST APPELLANT
SAMUEL
MOLOPE
SECOND APPELLANT
JOHN
DLAMINI
THIRD APPELLANT
LORRAINE
BAITSIWE
FOURTH APPELLANT
WALTER
THELEDI
FIFTH APPELLANT
MOSES
MIYA
SIXTH APPELLANT
And
MOHAU
WILLIAMS
MOKGATLA
FIRST RESPONDENT
NOMFEZO
MDINGI
SECOND RESPONDENT
DION
MAKHURA
THIRD RESPONDENT
PHUMLILE
SHANGE
FOURTH RESPONDENT
SELLO
SELEPE
FIFTH RESPONDENT
LANCE
VEOTTE
SIXTH RESPONDENT
ZAKHELE
KHUMALO
SEVENTH RESPONDENT
WYCLIFF
MABUSELA
EIGHTH RESPONDENT
KENNEDY
NKOSI
NINTH RESPONDENT
KGOSI
MAKWATI
TENTH RESPONDENT
THABISILE
MANQELE
ELEVENTH
RESPONDENT
NTOKOZO
NZUZA
TWELFTH RESPONDENT
MAMPETI
MALETE
THIRTEENTH RESPONDENT
Neutral
Citation:
SAMWU
v Mokgatla
(20810/2014)
[2016] ZASCA 24
(18 March 2015).
Coram:
Maya AP, Wallis, Mbha, Dambuza and Mathopo JJA
Heard:
18
February 2016
Delivered:
18 March 2016
Summary:
Labour Law – concurrent and exclusive
jurisdiction of the Labour Court and the High Court – dispute
based on non-adherence
to disciplinary procedures provided in the
constitution of a trade union –
s 158(1)
(e)
of the
Labour Relations Act 66 of 1995
– matter within exclusive jurisdiction of the Labour Court.
ORDER
On
appeal from:
Gauteng Local
Division of the High Court, Johannesburg (Vally J, sitting as court
of first instance):
1 The appeal
succeeds with costs.
2 The order of the high court is set
aside and is replaced with the following:
‘
The
application is dismissed with costs.’
JUDGMENT
Dambuza
JA (Maya AP, Wallis, Mbha and Mathopo JJA concurring):
[1]
The issue for determination in this appeal is whether the High Court
and the Labour Court have concurrent jurisdiction in respect
of
disputes emanating from
s 158(1)
(e)
of
the Labour Relations Act 66 of 1995 (LRA). The appeal comes before us
with leave of the Gauteng Local Division of the High Court,
Johannesburg (Vally J). It lies against its judgment declaring
unlawful and setting aside the suspension and expulsion of the
respondents from their membership and employment with the first
appellant, the South African Municipal Workers Union (SAMWU).
[1]
The court a quo dismissed a special plea raised by the appellants,
that it lacked jurisdiction to consider the application by the
respondents for their reinstatement to SAMWU.
[2]
The second to sixth appellants (appellants) were national office
bearers of SAMWU, whilst the 13 respondents and 3 others (together
the 16 applicants in the court a quo) were its provincial office
bearers.
[2]
During 2012 and 2013 a suspicion arose amongst certain members of
SAMWU, including the respondents, that the appellants were involved
in acts of financial mismanagement, corruption and misappropriation
of SAMWU’s funds. The suspicion was triggered by the
failure of
SAMWU’s finance committee to provide financial reports for the
year 2013. The allegation was that the root cause
of the problem was
the failure by the appellants to provide the necessary financial
information, including records of their expenditure.
The allegations
of corruption resulted in a meeting of SAMWU’s Central
Executive Committee (CEC) being convened in April
2014. At that
meeting, a motion was proposed that the appellants be removed from
office. However no resolution was passed on the
issue. A decision was
postponed pending consultation, by provincial office bearers, with
their constituencies. It is whilst the
motion stood postponed that
the respondents were removed from office by the appellants. The
reasons given for the suspension and
expulsion of the respondents
were that they had spread malicious information about, were ‘unruly’
or disruptive towards,
and ‘undermined’ the national
office bearers.
[3]
The respondents then brought an application, in the court a quo,
challenging their removal. They contended that the prescribed
disciplinary procedures, particularly clauses 3.5.3, 6.5.6, 7.3.9 and
16.4 of SAMWU’s constitution, were flouted when the
decision to
remove them from office was taken.
[3]
In opposing the application for reinstatement, the appellants raised,
inter alia, a point
in
limine
that in terms of s 157(1) of the LRA the High Court lacked
jurisdiction to hear the application.
[4]
In dismissing the special plea of lack of jurisdiction, the court a
quo accepted that s 157(1) confers exclusive jurisdiction
on the
Labour Court in respect of matters that, in terms of the LRA or any
other law, are to be determined by the Labour Court.
However, the
learned judge found that s 158(1)
(e)
(i)
affords litigants a choice of fora in which to bring disputes arising
from non-compliance with the constitution of a trade union.
The
learned judge classified such disputes as founded in both common law
and the LRA, and found that the latter did not deprive
litigants of
the right to approach the High Court to assert their common law
rights. In the court a quo the respondents had disavowed
any reliance
on s 158(1)
(e)
of
the LRA. They contended that their case was founded on their common
law right to enforce the provisions of the constitution of
the trade
union. In finding that the enforcement of the provisions of the
constitution of the trade union was a purely common law
issue, the
judge a quo relied on a long line of judgments, including
Fedlife
Assurance Ltd v Wolfaardt
[2001] ZASCA
91
;
2002 (1) SA 49
(SCA);
United
National Public Servants Association of SA v Digomo NO & others
(2005) 26 ILJ 1957;
[2005] 12 BLLR 1169
(SCA);
Old Mutual Life Assurance Co SA
Ltd v Gumbi
[2007] ZASCA 52
;
2007 (5)
SA 552
(SCA);
Fredericks and Others v
MEC for Education and Training, Eastern Cape, and Others
[2001]
ZACC 6
;
2002 (2) SA 693
(CC);
2002 (2) BCLR 113
; (2002) 23
ILJ
81 and
Gcaba
v Minister for Safety and Security
[2009]
ZACC 26
;
2010 (1) SA 238
(CC).
[5]
Prior to the hearing of this appeal, the attention of the parties was
drawn, through the Registrar of this court, to a judgment
of this
court in
Motor Industry Staff Association v Macun NO & others
[2015] ZASCA 190
; (2016) 37 ILJ 625;
[2016] 3 BLLR 284
(SCA) which
was handed down on 30 November 2015. In response to the Registrar’s
letter, the appellants’ attorneys advised
that the appellants
persisted with the appeal and that they intended to ventilate the
issues fully for various reasons, including
alleged attempts by the
respondents to enforce the order of the court a quo. Before us, Mr
Raath who appeared on behalf of the
appellants, asserted that the
jurisdictional issue remained live for determination; that the
respondents had not abandoned the
judgment granted in their favour by
the court a quo; that the jurisdictional issue as considered by this
court in
Macun
was distinguishable from that raised in this
appeal; and that the appellants had incurred a considerable amount of
costs in this
matter.
[6]
The respondents did not appear before us. Mr Raath handed up, from
the bar, a letter dated 13 August 2015 from the respondents’
erstwhile attorneys, Mathopo Attorneys, who withdrew as the
respondents’ attorneys of record on 30 November 2015. In that
letter Mathopo Attorneys advised that the respondents had decided to
terminate their membership with SAMWU. They would therefore
not be
participating in the appeal. According to the letter, the
respondents’ stance was motivated by:
‘
the
appellants’ previous conduct of not complying with court orders
and having proceeded to convene provincial congresses
to elect new
leadership without inclusion of the respondents. Furthermore the
respondents [had] taken the view that it would not
be in the
interests of justice to pursue this [appeal] as the judgment [would
be] academic and of no use to both parties’.
The
respondents’ attorneys thus proposed that all pending matters
between the parties be withdrawn, and that each party pay
its own
costs.
[7]
I agree with the submission on behalf of the appellants that the
judgment and order of the court a quo remains extant, with
definite
legal consequences.
[4]
The contents of the letter from Mathopo Attorneys does not constitute
an abandonment of the order granted in favour of the respondents.
For
these reasons the appeal remains live before us.
[8]
In
Macun
,
the appellant had contended that in terms of s157(2) of the LRA the
High Court enjoyed concurrent jurisdiction with the Labour
Court to
consider a challenge, by way of review proceedings, to the extension
to non-parties of a bargaining agreement concluded
in terms of s 66
of the LRA. The argument was that the Minister of Labour, in
purporting to extend the collective agreement
to non-parties, acted
beyond the powers conferred upon her in terms of s 32 of the LRA. The
challenge to the decision of the Minister
was thus based on the
principle of legality in respect of which it was argued that both the
Labour Court and the High Court had
jurisdiction. In rejecting that
argument this court held that the protections, both procedural and
substantive, that relate to
collective bargaining are sourced in the
LRA. The High Court therefore lacked jurisdiction.
[9]
Subsections 157(1) and (2) of the LRA provide the following:
‘
(1)
Subject to the Constitution and section 173, and except where
this
Act
provides otherwise, the Labour Court has exclusive jurisdiction in
respect of all matters that elsewhere in terms of
this
Act
or in terms of any other law are to be determined by the Labour
Court.
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from–
(a)
employment
and from labour relations;
(b)
any
dispute
over the constitutionality of any executive or administrative act or
conduct, or any threatened executive or administrative act
or
conduct, by the State in its capacity as an employer; and
(c)
the
application of any law for the administration of which the
Minister
is responsible.’
[10]
Section 158(1) of the LRA provides for the ‘Powers of the
Labour Court’ in the following terms:
(1)
The Labour Court may–
(a)
make
any appropriate order, including–
(i)
the grant of urgent interim relief;
(ii)
an interdict;
(iii)
an order directing the performance of any particular act which order,
when implemented, will remedy a wrong and give effect
to the primary
objects of
this Act
;
(iv)
a declaratory order;
(v) an
award of compensation in any circumstances contemplated in
this
Act
;
(vi)
an award of damages in any circumstances contemplated in
this Act
;
and
(vii)
an order for costs;
(b)
order
compliance with any provision of
this
Act
or any
employment
law
;
(c)
make
any arbitration award or any settlement agreement an order of the
Court;
(d)
request
the Commission to conduct an investigation to assist the Court and to
submit a report to the Court;
(e)
determine
a
dispute
between a registered
trade
union
or registered
employers'
organisation
and any one of the members or applicants for membership thereof,
about any alleged non-compliance with-
(i)
the constitution of that
trade union
or
employers
'
organisation
(as the case may be); or
(ii)
section 26(5)
(b)
;
(f)
subject
to the provisions of
this
Act
,
condone the late filing of any document with, or the late referral of
any
dispute
to, the Court;
(g)
subject
to s 145, review the performance or purported performance of any
function provided for in
this
Act
on any grounds that are permissible in law;
(h)
review
any decision taken or any act performed by the State in its capacity
as employer, on such grounds as are permissible in law;
(i)
hear
and determine any appeal in terms of s 35 of the Occupational Health
and Safety Act . . . (
Act
85 of 1993
); and
(j)
deal
with all matters necessary or incidental to performing its functions
in terms of
this
Act
or any other law.’
[11]
While ss 157(1) and (2) relate, broadly, to the jurisdiction of
the Labour Court, s 158(1) both lists specific remedial
powers
[5]
and provides substantive jurisdictional bases of that court.
[6]
It is apparent from the judgment of the court a quo that when
considering the issue of jurisdiction, the learned judge compared
the
wording: ‘ …
are
to be determined by the Labour Court’,
in s 157(1),
with: ‘
The
Labour Court
may
…’
in
s 158(1). He then concluded that as a result of the word ‘are’
in s 157(1), the provisions of that section
preclude the
jurisdiction of the High Court, while the effect of the word ‘may’
in s 158(1) is to ‘afford [litigants]
the opportunity to take
their disputes to the Labour Court, but that does not mean that that
forum is the only one that can grant
them the remedy they seek’.
He thus found that the two courts enjoy concurrent jurisdiction under
s 158(1)
(e)
(i).
The same approach was adopted by Koen J in
Value
Line CC & others v Minister of Labour & others
(2013)
34 ILJ 1404 (KZP), wherein the learned judge concluded that
s 158(1)
(g)
did not provide for matters of substantive jurisdiction and that the
jurisdiction of the High Court was therefore not excluded
in matters
provided for thereunder.
[12]
But, what the court a quo missed, as did the court in
Value
Line,
are the fundamental guiding
principles underlying the determination of the jurisdiction of the
respective courts over disputes
provided for under the LRA. These
were laid down by the Constitutional Court in
Chirwa
v Transnet Ltd & others
[2007] ZACC
23
;
2008 (4) SA 367
(CC)
and
Gcaba
(above). In para 123 of
Chirwa
the
Constitutional Court said:
‘
While
s 157(2) remains on the statute book it must be construed in the
light of the primary objectives of the LRA. The first
is to establish
a comprehensive framework of law governing the labour and employment
relations between employers and employees
in all sectors. The other
is the objective to establish the Labour Court and the Labour Appeal
Court as superior courts, with exclusive
jurisdiction to decide
matters arising from the LRA. In my view the only way to reconcile
the provisions of s 157(2) and harmonise
them with those of
s 157(1) and the primary objects of the LRA is to give s 157(2)
a narrow meaning. The application
of s 157(2) must be confined
to those instances, if any, where a party relies directly on the
provisions of the Bill of Rights.
This, of course, is subject to the
constitutional principle that we have recently reinstated, namely,
that “where legislation
is enacted to give effect to a
constitutional right, a litigant may not bypass that legislation and
rely directly on the Constitution
without challenging that
legislation as falling short of the constitutional standard”’.
(Footnote omitted.)
[13]
And in
Gcaba
, the Constitutional Court held the following in
para 56:
‘
.
. . another principle or policy consideration is that the
Constitution recognises the need for specificity and specialisation
in a modern and complex society under the rule of law. Therefore a
wide range of rights and the respective areas of law in which
they
apply are explicitly recognised in the Constitution. Different kinds
of relationships between citizens and the State and citizens
amongst
each other are dealt with in different provisions. The legislature is
sometimes specifically mandated to create detailed
legislation for a
particular area, like equality, just administrative action (PAJA) and
labour relations (LRA). Once a set of carefully
crafted rules and
structures has been created for the effective and speedy resolution
of disputes and protection of rights in a
particular area of law, it
is preferable to use that particular system. This was emphasised in
Chirwa
by both Skweyiya J and Ngcobo J. If litigants are at liberty to
relegate the finely tuned dispute-resolution structures created
by
the LRA, a dual system of law could fester in cases of dismissal of
employees’. (Footnotes omitted.)
[14]
In
Macun
,
this court lamented the persistent attempts by practitioners to
fashion cases to suit their clients’ choice of forum. Navsa
JA
emphasised that s 157(2) must be narrowly construed in the light
of the primary objectives of the LRA to establish a comprehensive
framework regulating labour relations.
[7]
In relation to s 158(1)
(g)
,
the learned judge found that the relevant question in determining
whether the Labour Court’s jurisdiction was exclusive
depended
on whether it was a review of the exercise of a power under the LRA.
In other words, did the case fall within s 158(1)
(g)?
If so, the Labour Court’s jurisdiction was exclusive. The
same principle is applicable here. If the case falls within
s 158(1)
(e)
(i),
as it does, then the jurisdiction of the Labour Court is
exclusive.
[8]
The decision in
Macun
is
therefore decisive of the outcome of this appeal. There is no reason
to differentiate between one ground of jurisdiction under
s 158(1)
and another.
[15]
In this case the respondents specifically pleaded in their
application before the court a quo that the appellants should have
complied with the relevant clauses of SAMWU’s constitution.
Therefore the basis upon which the High Court’s jurisdiction
was challenged is expressly provided for in s 158(1)
(e)
(i)
of the LRA. The disavowal by the respondents, during argument, of any
reliance on the LRA is irrelevant. As the Constitutional
Court held
in
Gcaba,
[9]
jurisdiction is determined on the basis of the pleadings.
Consequently the appeal must succeed.
[16]
I do not think that this case warrants that the appellant be awarded
the costs of two counsel.
[17]
The following order is accordingly made:
1
The appeal succeeds with costs.
2
The order of the high court is set aside and is replaced with the
following:
‘
The
application is dismissed with costs.’
_____________________
N
DAMBUZA
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant:
R J Raath SC (with him R Venter)
Instructed
by:
Maenetja Attorneys, Pretoria
Phatshoane Henney
Attorneys, Bloemfontein
For
the Respondent:
No appearance
[1]
Some of the
respondents were expelled whilst others had their membership
suspended.
[2]
Some of the
letters of suspension specify the positions held by the members
concerned, others do not.
[3]
The
relevant clauses of the SAMWU constitution provide:
‘
3.5.3
Members may be expelled or suspended from membership through a
decision in terms of a disciplinary procedure
of the union in
section 16 of this constitution.
.
. .
6.5.6
One or more of the elected office bearers may be removed from office
in the event that a majority
of the Council voting by ballot should
so decide. A motion to institute such ballot shall be passed by at
least 20 per cent of
those entitled to vote. Both ballots must be
preceded by full motivation.
.
. .
16.4
Discipline of Executive Committee Members
16.4.1
A [Regional Executive Committee] or [Provincial Executive Committee]
and the [National Executive Committee]
shall have the right to
censure its members verbally or in writing in any meeting or suspend
such member for the duration of
the meeting and to institute a
disciplinary hearing by the [Provincial Disciplinary Committee].
16.4.2
Such committees may if it considers it necessary suspend such
member from further participation in its meetings
pending the
outcome of such hearing.
16.4.3
The [Provincial Disciplinary Committee] may determine to
exercise any of the measures set out in 16.2.4 or 16.2.6
or 16.3.3.
16.4.4
A person so disciplined shall have the right to appeal to the
[National Disciplinary Committee].
16.4.5
In any case referred to the [Provincial Disciplinary Committee] by
any of the above structures the structure
shall have the right to
have two of their members to present their case.’
[4]
For
example, the respondents may still institute a claim for damages for
their proved wrongful and unlawful dismissal based on
the judgment
of the court a quo. See in that regard,
Mathews
& others v Young
1922 AD 492.
[5]
S
158(1)
(a),(b)(c)(d)
and
(f)
.
[6]
S 158(1)
(e)
and
(g)
.
[7]
Paragraph
18.
[8]
Paragraph
23.
[9]
Paragraph
75.