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[2011] ZAGPJHC 102
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Mcaba v Police and Prisons Civil Rights Union (POPCRU) and Another (10731/11) [2011] ZAGPJHC 102 (2 September 2011)
Links to summary
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
REPORTABLE
CASE NO
:
10731/11
DATE:02/09/2011
In the matter between:
NTOMBIZAKHE
THEODORA
MCABA
...............................................
Applicant
and
POLICE
AND PRISONS CIVIL RIGHTS UNION
(POPCRU)
….......................................................................................
First
Respondent
GENERAL
SECRETARY – NATHI THELEDI
...............................
Second
Respondent
J U D G M E N T
MOSHIDI, J
:
INTRODUCTION
[1] In this opposed application
the applicant seeks the relief framed in the notice of motion as
follows:
“
1.
Declaring that the purported dismissal of the Applicant by the First
and the Second Respondents unlawful and invalid.
Ordering the First and the Second Respondents not to temper with
the status of the Applicant as First Vice President and a member
of
POPCRU until the appeal to the National Congress of the First
Respondent is heard.
Ordering that the rights and
privileges enjoyed by the Applicant before the purported dismissal
be re-instated.
Directing the First and the
Second Respondents and any other Respondent that may oppose this
application, to paying the costs
of suit, jointly and severally, the
one paying the other to be absolved.
”
THE PARTIES
[2] The applicant, a Captain in
the South African Police Service (“
the
SAPS
”), was
elected as a National Office Bearer and First Vice-President of the
first respondent. Her election as such occurred
at a National
Congress of the first respondent and in terms of clause 13.6 of the
first respondent’s Constitution (2007 ed)
held during June
2007.
[3] The first respondent is the
Police and Prisons Civil Rights Union, a trade union active in the
SAPS and the Department of Correctional
Services and the Traffic
Departments. I shall henceforth refer to the first respondent as
(“
POPCRU
”).
The second respondent is the General Secretary of POPCRU, acting in
the present proceedings by virtue of the provisions
of clause 12.2.10
of the Constitution of POPCRU. I shall henceforth refer to the
second respondent as (“
the
General Secretary
”).
COMMON CAUSE FACTS
[4] It is not in dispute that
the applicant is not an employee of POPCRU, and nowhere in her papers
does she make such allegation.
POPCRU, through the General
Secretary, has filed opposing papers. The applicant thereafter filed
a replying affidavit. It is
also not in dispute that during October
2010, the National Executive Committee (“
the
NEC
”) of POPCRU
resolved that the applicant be suspended from POPCRU pending
finalisation of some investigation. In this regard,
the resolution of
the NEC, Annexure “C” to the founding papers, reads as
follows:
“
Subsequently,
the normal NEC sitting on 30-31 October 2010 resolved that the 1
st
Vice President should be suspended from the organisation pending
finalisation of the investigation … Outcomes of the
investigation
reports will be presented to the NOBs to the CEC for
engagements.
”
“
NOB’s
”
refer to the National Office Bearers, whilst “
CEC
”
refers to the Central Executive Committee of POPCRU. The minutes of
the meeting of the NEC held on 30-31 October 2010,
Annexure “FA5”
to the answering affidavit, show that the applicant was not in
attendance as she tendered an apology.
This is not in dispute as
well. It is further not in dispute that on 7 December 2010 the
Deputy General Secretary of POPCRU addressed
a letter by registered
mail to the applicant in which her membership of POPCRU was
terminated. The letter, received by the applicant
on 14 December
2010, reads as follows:
“
It
is with regret to inform you that the Central Executive Committee
meeting held on 5 December 2010 has resolved to terminate your
membership with immediate effect.
”
At the same time POPCRU also communicated the decision by letter to
the SAPS in the following terms:
“
With
reference to above subject, you are hereby informed that Captain
Ntombizakhe Mcaba, who was released by the South African Police
Service as National Office Bearer of POPCRU, is no longer holding
this position with effect from Sunday, 05 December 2010. This
communication serves to officially inform that she should be removed
from the list of National Office Bearers of POPCRU who are
released
as per the SSSBC agreement. Her deployment can be determined by the
South African Police Service …
”
The letter is headed “
Withdrawal
of Captain Mcaba from the Office Bearers Position
”
.
The “
SSSBC
”
refers to the Safety and Security Sectoral Bargaining Council
attached to the founding papers, and being an agreement entered
into
between the SAPS, POPCRU and the South African Police Union on 10
October 2007.
[5] It is further not in dispute that on 31 December 2010, the
applicant, acting in terms of clause 24.14 (Chapter 18) of POPCRU’s
Constitution, noted an appeal to the National Congress of POPCRU
against the termination of her membership. In the notice of appeal,
Annexure “F1” to the founding papers, the applicant
advanced the following grounds:
“
(i)
The termination of my membership and removal from the position of
the 1
st
Vice President is procedurally flawed and unfair.
The termination of my
membership and removal from the position of the 1
st
Vice President is substantively flawed and unfair.
”
Clause 24.14 of POPCRU’s Constitution provides:
“
In
the event of a person who is found guilty of unprofessional or
unethical conduct there shall be the right to appeal from the
Province to the National Disciplinary Committee whose decision shall
be final.
”
There are no time frames within
which an appeal may be lodged. In the founding papers the applicant
contends that she filed the
appeal timeously. This must be accepted
as it is not challenged. However, as noted later herein, POPCRU
makes some rather interesting
submissions about the appeal procedure
within POPCRU. It is significant that as at the time of the founding
affidavit, the appeal
was not yet heard.
APPLICANT’S CASE
[6] As a consequence, the
applicant alleges that the termination of her membership of POPCRU
was unlawful, invalid and procedurally
flawed for a number of
reasons. These include that she was not part of any investigation
launched by POPCRU which led to her suspension
or termination of her
membership; that her appeal was still pending; that she was not
provided with reasons for the decision to
suspend her or to terminate
her membership; that in terminating her membership, POPCRU has
breached its own rules and constitution;
and most importantly, that
POPCRU has blatantly ignored the rules of natural justice by denying
the applicant the right to be heard
in order to receive her side of
the story (the
audi
alteram partem
rule).
POPCRU’s CASE
[7] On the other hand, POPCRU
has raised a number of defences to the relief sought by the
applicant. The defences include two
preliminary points. The first
point
in limine
is to the effect that to the extent that the applicant alleges that
there was non-compliance with POPCRU’s Constitution,
this High
Court has no jurisdiction to adjudicate over the dispute. In this
regard, reliance is placed on the provisions of sec
157(1) read with
sec 158(1)(e)
of the
Labour Relations Act 66 of 1995
for the
contention that it is in fact the Labour Court which has exclusive
jurisdiction for such relief. The second point
in
limine
is premised on
the basis that since the applicant is not an employee of POPCRU, but
that of the SAPS, she is not entitled to the
relief “
dismissing
”
her from her position as First Vice-President of POPCRU. If the
applicant was “
dismissed
”
as an employee, it is once more, so the argument proceeded, the
Labour Court that has the requisite jurisdiction to adjudicate
over
the relief she seeks.
[8] The last-mentioned point
in
limine
, with which I
deal instantly, is capable of easy resolution in favour of the
applicant. POPCRU has consistently and completely
misconstrued the
applicant’s case against it. Neither in the founding papers
nor in the replying affidavit does the applicant
allege that she was
an employee of POPCRU. In prayer 1 of the notice of motion the
applicant uses the words, “
purported
dismissal
”. The
use of the word “
dismissal
”
is unfortunate as it runs against the entire grain of the actual
relief sought by the applicant. The essence of her relief
is that
her removal from the office of First Vice-President was procedurally
unfair. Moreover, in Annexure “D1”-“D3”,
the
letter of POPCRU to the applicant, does not use the word “
dismissal
”
but rather the word “
terminate
”.
Furthermore, in her letter of appeal, Annexure “F1”,
dated 31 December 2010, the applicant uses the word “
termination
”
twice, and not once the word “
dismissal
”.
Furthermore, it is common cause that the applicant is a Captain in
the SAPS, her employer. She was elected as First Vice-President,
a
National Office Bearer of POPCRU, with the concurrence of the SAPS,
and based on the SSSB Council agreement. This point
in
limine
plainly has no
merit and calls to be rejected.
[9] However, if I am incorrect
in my determination of the second point
in
limine
, I am persuaded
that POPCRU cannot succeed on both the first point
in
limine
and on the
merits of the application. I deal last in this judgment with the
first point
in limine
.
I prefer to deal first with two matters which are equally capable of
easy disposal in favour of the applicant.
ADJUDICATION ON MERITS
[10] The first issue has regard
to the appeal noted by the applicant. In the founding papers the
applicant alleges that it was
procedurally unfair and premature for
POPCRU to first terminate her membership without concluding the
appeal procedure (see para
15 of the founding papers). She says that
since she lodged the appeal on 31 December 2010, she has heard
nothing from POPCRU.
In para 14.1 of the answering affidavit POPCRU
alleges that:
“
Although
there is no appeal procedure as such, the CEC has decided that the
delegates at the National Congress should decide on
the applicant’s
fate. The National Congress shall therefore determine whether the
applicant should be re-admitted as a member
of the union and whether
she should be reinstated as the First Vice President. Accordingly,
the applicant does have a remedy and
she has exercised that remedy
and the first respondent’s National Congress shall hear her
appeal.
”
If the contents of the last
quoted para are confusing and indeed contradictory, paras 36.3, 37
and 38.2 of the answering affidavit
are even more puzzling. Para
36.3 states:
“
The
applicant has been afforded a right of appeal to the National
Congress.
”
Paragraph 37 is more bemusing.
Para 37.1 states:
“
Given
that the applicant has lodged an appeal and that the appeal shall be
entertained there is no reason why the applicant should
have
approached this above Honourable Court before the appeal is heard.
”
Paragraph 37.2 goes on to allege that:
“
It
shall be argued at the hearing of this matter that this application
is premature and that the remedy available to the applicant
is one
that she has already pursued, namely the appeal to the National
Congress.
”
In para 38.2 POPCRU contends that
it has complied with its Constitution and has followed a lawful
process. The para proceeds to
state that:
“…
The
first respondent’s constitution provides for a disciplinary
process however this applies to ordinary members and not National
Office Bearers. In addition both the NEC and the CEC had regard to
the investigations report, ‘FA10A’ to ‘FA10N’,
and determined lawfully, that the applicant’s membership of the
union be terminated.
”
The answering affidavit was
attested on 8 April 2011, although the body of the attestation
reflects that this occurred in March
2011. The minutes of the CEC of
POPCRU held on 5/6 December 2010, Annexure “FA11L”, show
that the decision to expel
the applicant was with immediate effect,
without notice and in her absence. Paragraph 35.12 of the answering
affidavit states
that:
“
The
first respondent is to hold its national congress in June 2011. It
has been decided by the CEC in the light of the applicant’s
appeal that the applicant shall have the right to state her case to
the National Congress against her removal as a National Office
Bearer
and her expulsion from the union as a member.
”
[11] The above extracts from the
answering affidavit show clear and various contradictions in the
version of POPCRU. On the one
hand, there is the allegation that the
applicant has no appeal remedy, whilst on the other hand it is
alleged that she has such
remedy which she has exhausted.
Furthermore, on the one hand, it is contended that the appeal has
been dealt with, whilst the
general tone is that the present
application is premature as the appeal was still to be heard by the
National Congress of POPCRU.
[12] What is, however, patent is
that the applicant was never informed of an appeal hearing. There
was no reaction to her notice
of appeal dated 13 December 2010. In
the replying affidavit she states credibly that she only became aware
in the opposing papers
that her notice of appeal was in fact received
and set down for some time in June 2011. POPCRU has conveniently
omitted to direct
the Court to the specific provisions in its
disciplinary procedures in the constitution which supports the view
that the disciplinary
process applies to ordinary members only, and
not to National Office Bearers. During argument the Court insisted
in obtaining
a complete copy of POPCRU’s Constitution. This was
done even though POPCRU resisted the request. Clause 24 under
Chapter
18 of POPCRU’s Constitution deals with Disciplinary
Procedures. There is no clause excluding National Office Bearers. It
is significant that clauses 24.11 to 24.13 provide as follows:
“
24.11.
Whenever the Disciplinary Committee has been directed to hold a
hearing its Secretary shall in accordance with the POPCRU
Code of
Conduct cause to be served on the person whose conduct is the subject
of the hearing and upon the complainant a notice
setting forth the
date, time and subject matter of such hearing;
24.12. In setting the date, time and place of such a hearing,
regard shall be given to the convenience of the Disciplinary
Committee
and all parties concerned;
24.13. The Secretary of the Disciplinary Committee shall cause a
record of its proceedings to be taken. The Secretary may cause
to be
served on any such person a notice requiring him/her to attend before
the Committee and to produce at the hearing any documents
he/she may
have in her/his possession, which is relevant to the hearing. Such
notice shall be served in the same way and shall
have the same effect
as a notice requiring the attendance of a witness legal trial;
14.24 In the event of a
person who is found guilty of unprofessional or unethical conduct
there shall be the right to appeal from
the Province to the National
Disciplinary Committee whose decision shall be final.
”
Clause 24.14, in terms of which
the applicant lodged her appeal, has already been referred to earlier
in this judgment.
[13] From the above, it is clear
that the applicant was never notified of such hearing; did not attend
the hearing; and that there
are no records of such disciplinary
hearing. What is of critical significance is that the applicant’s
appeal hearing, on
the version of POPCRU, is still pending. In my
view, the argument advanced by the applicant that POPCRU acted
unfairly in ignoring
her appeal, has considerable merit. The appeal
was plainly pending. In
Nestle
(South Africa) (Pty) Ltd v Mars Inc
2001 (4) SA 542
(SCA), at para [16] the Court said:
“
The
defence of lis alibi pendens shares features in common with the
defence of res judicata because they have a common underlying
principle, which is that there should be finality in litigation.
Once a suit has been commenced before a tribunal that is competent
to
adjudicate upon it, the suit must generally be brought to its
conclusion before that tribunal and should not be replicated (lis
alibi pendens).
”
In regard to the
onus
to prove a pending suit, which
onus
the applicant has, in my view, discharged in the present matter, see
Dreyer and Others v
Tuckers Land and Development Corp (Pty) Ltd
1981 (1) SA 1219
(T) at 1231. I conclude that the applicant ought to
succeed as well on this aspect.
[14] I deal with the second
issue on the merits in respect of which the applicant must also
succeed. That is that in taking the
decision to terminate her
membership, POPCRU completely ignored the rules of natural justice by
not hearing her side of the story.
Implicit in the rules, is the
audi
alteram partem
rule
(“
the audi
rule
”). In
Administrator,
Transvaal, and Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A), at 748E-H, Corbett CJ said:
“
The
right which is generally referred to by means of the maxim audi
alteram partem has been discussed and analysed in a number of
recent
judgments of this Court … The maxim expresses a principle of
natural justice which is part of our law. The classic
formulations of
the principle stated that, when a statute empowers a public official
or body to give a decision prejudicially affecting
an individual in
his liberty or property or existing rights, the latter has a right to
be heard before the decision is taken (or
in some instances
thereafter – see Chikane’s case supra at 379G), unless
the statute expressly or by implication indicates
the contrary. One
of the issues in this matter is whether what I shall call ‘the
audi principle’ is confined to cases
where the decision affects
the liberty, property or existing rights of the individual concerned
or whether the impact of the principle
is wider than this. I shall
deal with this issue in due course.
”
Indeed, later on in the judgment,
and at 763I, Corbett CJ proceeded to state that:
“
As
I have shown, traditionally the enquiry has been limited to
prejudicial effect upon the individual’s liberty, property
and
existing rights, but under modern circumstances it is appropriate to
include also the legitimate expectations. In short, I
do not think
that the quasi-judicial/purely administrative classification, relied
upon by counsel, is of any material assistance
in solving the problem
presently before the Court. For these reasons I agree with the
conclusion reached by the Judge a quo to
the effect that the decision
of the second appellant to turn down the applications of the
respondents for the posts of SHO at the
hospital was invalid by
reason of his failure to accord the respondents a fair hearing before
taking the decision.
”
(Compare
Administrator,
Transvaal, and Others v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A).)
[15] In the instant matter,
POPCRU contends that prior to the suspension and ultimate termination
of the applicant’s membership,
it carried out certain
investigations. The investigators concluded that the applicant had
breached certain clauses of the Constitution
and Code of Conduct, and
was guilty of alleged professional conduct. It is, however, clear
that the applicant was not part of
the investigations or invited to
take part in such investigations. POPCRU alleges that the applicant
refused to participate in
the investigation process “
in
that she refused to answer the telephone calls of the Second Vice-
President who was in charge of the investigation
”.
In para 18 of the founding papers the applicant contends that she
was never invited to any investigation nor was she provided
with a
copy of the written investigation report which led to her suspension.
She also contends that she was never provided with
any reasons
explaining the decision to terminate her membership. Indeed, POPCRU
has not provided any documentary proof in the form
of correspondence
to the appellant to challenge the applicant’s contentions.
There is similarly no documentary proof that
the applicant was
invited to the meeting of December 2010 where the decision to
terminate her membership was taken. The letter
of 7 December 2010
addressed to the applicant informing her of the termination of her
membership equally provides no reasons for
the termination. POPCRU,
simply and consistently acted unilaterally in deciding the fate and
termination of her membership. She
was never heard.
[16] In argument, and from the
papers, it appears that the position of First Vice-President of
POPCRU held by the applicant, even
though as an employee of the SAPS,
was not without any benefits. Annexure “FA11(g)” to the
answering papers shows that
during her tenure, the applicant was
deployed to international trips by POPCRU, including trips to Europe,
Ghana, Zambia, Botswana
and Swaziland between September 2007 and May
2010. In this regard POPCRU expended the sum of approximately R28
299,00 for such
overseas trips. There were also other cash allowances
made to the applicant. It can therefore be safely accepted that when
she
was elected as First Vice-President in June 2007, the applicant
had legitimate expectations to enjoy these benefits until her term
was ended in a legitimate manner. In this regard clause 13.6.1.2.3,
under Chapter 7 of POPCRU’s Constitution provides:
“
The
Deputy and Vice-Presidents shall hold office for a period of four
years until the next election of the position.
”
Clause 13 further provides that
if she is nominated for the position of Deputy and Vice-Presidents,
the nominee shall be a member
of the Union in good standing. In
regard to the authority of the applicant during her tenure, clause
13.2.3.1. of the Constitution
provides:
“
The
1
st
Vice President exercises the power and duties of the President in the
absence of both the President and the Deputy President.
”
From this, it is plain that the
position occupied by the applicant was not purely ceremonial or
nominal, without any benefits.
To terminate these benefits without a
proper hearing or without even hearing the applicant, affected her
legitimate expectations
as envisaged by Corbett CJ in
Traub
and Others supra
. In
addition, sec 34 of the Bill of Rights provides that:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.
”
The applicant in the present
matter was plainly denied this right to appear before POPCRU’s
Disciplinary Committee and to
state her case. On this aspect, I
conclude that the conduct of POPCRU in ignoring utterly the rules of
natural justice, and the
audi
principle, entitles
the applicant to succeed as well in the relief she seeks.
FIRST POINT
IN LIMINE
[17] I now turn to the first
point
in limine
raised by POPCRU. This is that this Court lacks the requisite
jurisdiction to hear the present application based on the provisions
of sec 157 read with sec 158(1) of the Labour Relations Act 66 of
1995 (“
the LRA
”).
The situation becomes worse for POPCU when in the heads of argument
it is contended by POPCRU, on the one hand, that
“
subsequent
to the filing of these papers the Applicant’s appeal has been
entertained by the first respondent. The Applicant’s
expulsion
was found to be valid and necessary. Accordingly, the relief sought
by the Applicant has become academic as the appeal
has been held
”.
On the other hand, and in para 14 of POPCRU’s heads of
argument, it is argued that, “
…
the Applicant brought this application prematurely as she had lodged
an appeal against her expulsion
which had not been
heard at the time of the lodging of the papers
”
(underlining added). This, in my view, is not only contradictory but
exceedingly untenable. There are no specific details
as to when,
how, and who heard the appeal. There is also no allegation that the
applicant was present when the appeal was heard.
It is indeed
aggravating and further conduct of POPCRU riding roughshod over
applicant’s rights to quickly hear the appeal
as soon as the
present application was served on it. It is clear that POPCRU was
hell-bent on ejecting the applicant as a National
Officer Bearer at
all costs, and irrespective of the means used. This, the Court
cannot countenance. In short, the argument
is that the Labour Court
has exclusive jurisdiction to hear all matters that appear in the
LRA, and that since the matter involves
a dispute between a
registered trade union (POPCRU), and one of their members about an
alleged non-compliance with the trade union’s
Constitution,
this High Court also does not have jurisdiction. As seen hereunder,
the argument is misplaced, especially where
it presupposes that the
applicant was employed by POPCRU and that she now claims
reinstatement on the basis of an unfair dismissal.
[18] It seems to me that
POPCRU’s argument is rather skewed and selective in that it
clearly ignores the provisions of sec
157(2) of the LRA which
provides that:
“
(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 Ch 2 of the Constitution of the Republic of South
Africa, 1966, and arising from –
employment and from labour relations;
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
the application of any law
for the administration of which the Minister responsible.
”
The latter provision must, of
course, be read with the provisions of sec 157(1) of the LRA, which
states,
inter alia
,
that:
“
…
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.
”
SOME LEGAL PRINCIPLES
[19] The question of the
competing jurisdiction between the Labour Court and the High Court
has been the subject matter of numerous
court decisions, including
the Constitutional Court. For example, in
Transnet
Ltd and Others v Chirwa
2007 (2) SA 198
(SCA), the respondent (Chirwa), was dismissed by her
employer, Transnet (the appellant). She approached this High Court
for the
review and setting aside of the decision of the appellant to
dismiss her from her employ, as well as an order that she be
reinstated
on the ground that the dismissal had violated her right to
administrative action that was lawful, reasonable and procedurally
fair,
as enshrined in sec 33 of the Constitution. The High Court
(Brassey AJ) found that her dismissal constituted ‘
administrative
action’
as
defined in sec 1 of the Promotion of Administrative Justice Act 3 of
2000 (“
PAJA
”);
that the common-law rules of natural justice applied to the decision
to dismiss; that those rules had been breached when
the decision to
dismiss her was taken; and that she was, accordingly, entitled to be
reinstated. On appeal, the Court had to determine
firstly, whether
the dismissal was a matter that fell to be determined exclusively by
the Labour Court in terms of sec 157(1) of
the LRA, 1995
(‘
jurisdiction
’),
and whether the dismissal constituted ‘
administrative
action
’ as
defined in sec 1 of PAJA. In upholding the appeal, and at paras [8]
to [10], Mthiyane JA said:
“
The
subject has arisen in matters dealt with by this Court. In Fedlife
Assurance Ltd v Wolfaardt Nugent AJA writing for the majority
said
that Ch 8 of the 1995 Act (meaning the LRA) was not exhaustive of the
rights and remedies that accrue to an employee upon
the termination
of employment. In that case, the Court held that, whether approached
from the perspective of the constitutional
dispensation and the
common law or merely from a construction of the LRA itself, an
employee was not deprived of the right to endorse
a common-law
contract and that his or her right to do so was not abrogated by the
LRA (paras [17] and [22]). The same approach
was adopted in the
judgment of this Court in United National Public Servants Association
of SA v Digomo NO and Others. There Nugent
JA said:
‘
The
remedies that the
Labour Relations Act provides
against conduct that
constitutes an ‘unfair labour practice’ are not
exhaustive of the remedies that might be available
to employees in
the course of the employment relationship. Particular conduct by an
employer might constitute both an “unfair
labour practice”
(against which the Act provides a specific remedy) and it also might
give rise to other rights of action.
The appellant’s claim in
the present case was not that the conduct complained of constituted
an “unfair labour practice”
giving rise to the remedies
provided for by the
Labour Relations Act, but
that it constituted
administrative action that was unreasonable, unlawful and
procedurally unfair. Its claim was to enforce the
right of its
members to fair administrative action – a right that has its
source in the Constitution and that is protected
by s 33 –
which is clearly cognisable in the ordinary courts.’
[9] The topic has also been dealt with in the High Courts. In
Mbayeka and Another v MEC for Welfare, Eastern Cape, Jafta J had to
consider an application by government employees who challenged their
suspensions from duty without emoluments as invalid/or being
unconstitutional and thus sought reinstatement. The employer
resisted the application on the basis that the High Court had no
jurisdiction in the matter. The employer contended that the dispute
fell within the exclusive jurisdiction of the LRA in terms
of s
157(1). The learned Judge rejected the argument and held that on a
proper interpretation of s 157(2) of the LRA:
‘…
the Labour
Court will never enjoy exclusive constitutional jurisdiction even in
matters where the cause of action is confined to
an alleged violation
of the right to fair labour practices simply because that is a
constitutional right in terms of s 23 of the
Constitution.’
The point made in the judgment is, in my view, unanswerable and
especially instructive in this case where the complaint is that Smith
breached the applicant’s right to administrative action that is
lawful, reasonable and procedurally fair – a constitutionally
entrenched right under s 33 of the Constitution. As to the Labour
Court’s power to adjudicate on this right, as pointed
out in
Mbayeka, it merely enjoys ‘concurrent [as opposed to exclusive]
jurisdiction with the High Courts’.
[10] For the above reasons, I
conclude that the High Court had jurisdiction in the matter …
”
(Footnotes omitted.)
See also the extremely
instructive exposition of the applicable law by Cameron JA in the
dissenting judgment at para [59]. In addition,
in
Boxer
Superstores Mthatha and Another v Mbenya
2007 (5) SA 450
(SCA) Cameron JA, in a majority judgment, at para [6]
said:
“
In
these cases, the exclusive jurisdiction of the Labour Court does not
preclude the employee’s recourse to the High Court.
This case
pushes the boundary a little further. The novel question it raises is
whether an employee may sue in the High Court for
relief on the basis
that the disciplinary proceedings and the dismissal were ‘unlawful’,
without alleging any loss
apart from salary. In my view, the answer
can only be Yes. This Court has recently held that the common-law
contract of employment
has been developed in accordance with the
Constitution to include the right to a pre-dismissal hearing (Old
Mutual Life Assurance
Co SA Ltd v Gumbi). This mans that every
employee now has a common-law contractual claim – not merely a
statutory unfair
labour practice right – to a pre-dismissal
hearing. Contractual claims are cognisable in the High Court. The
fact that they
may also be cognisable in the Labour Court through
that court’s unfair labour practice jurisdiction does not
detract from
the High Court’s jurisdiction.
”
I must again emphasise that the
cases referred to above are clearly distinguishable from the present
matter for reasons advanced
earlier in this judgment.
[20] From the above, it is plain
that although the
Chirwa
decision supports the contention of the applicant in the instant
matter, especially on the issue of jurisdiction, the facts in
the
Chirwa
matter are clearly distinguishable from the facts in the present
matter. For example, in the present matter, the applicant is
not
employed by POPCRU. The relief she seeks is not based on unfair
dismissal. The applicant was properly elected as First
Vice-President
of POPCRU during a National Congress in June 2007, and
in terms of clause 13.6. of POPCRU’s Constitution. As a
consequence,
she became a National Office Bearer of POPCU. The
applicant does not have a contract of employment with POPCRU. In
terms of clause
10.3.1.7 of POPCRU’s Constitution, the
applicant can only be removed by the National Conference.
[21] In addition, careful
scrutiny of the notice of motion shows that in spite of the usage of
the words, “
purported
dismissal
”, in
prayer 1, the applicant relies on the violation of her common law
rights, rules of national justice, and her constitutional
rights.
There is no reference to a contract of employment or unfair
dismissal. She claims that the process followed by POPCRU
in
terminating her membership without a proper hearing was procedurally
unfair, and that she was denied the right to be heard.
Similarly,
POPCRU followed the same unfair procedure in regard to applicant’s
appeal. In
Minister of
Safety and Security and Others v Vilakazi
[2000]
3 All SA 95
(N) at 101b-c it was stated that:
“
The
failure to afford a person who may be adversely affected by an
administrative decision the opportunity to make representations
as to
why it should not be taken is per se prejudicial to such a person.
It is not incumbent upon him to show that had he been
afforded a
proper hearing, he would have succeeded in persuading the
decision-maker to decide differently.
”
[22] For all the aforegoing
reasons, I am convinced that the first point
in
limine
raised by
POPCRU in regard to the alleged lack of jurisdiction on the part of
this Court has no merit at all and is clearly misplaced.
Indeed, the
same reasoning and conclusion reached above applies equally to
POPCRU’s reliance on sec 158(1)(e) of the LRA.
The latter sec
gives the Labour Court discretionary powers to adjudicate a dispute
between a trade union or employers’ organisation
or any one of
the members or applicants for membership thereof, which concerns any
alleged non-compliance with the Constitution
of a trade union or
employers’ organisation. From this, it is plain that the
jurisdiction conferred upon the Labour Court
is not obligatory.
There is no dispute about the Constitution of POPCRU in the instant
matter. The applicant is a National Office
Bearer of POPCRU, having
been elected thereto at a National Congress of POPCRU. In terms of
clause 10, Chapter 4, of POPCRU’s
Constitution, the National
Congress, which is the Supreme Governing Body, has the power over
“
nominations,
removal or reinstatement of National Office Bearers
”
(see clause 10.3.1.7). It is common cause from Annexure “D1-D3”
to the founding papers that the decision to
terminate the applicant’s
membership was taken by the Central Executive Committee, not the
National Congress. This was clearly
irregular and procedurally
unfair. So was POPCRU’s decision in not according the
applicant a pre-termination hearing followed
by the refusal of a
right to be heard on the appeal lodged by the applicant. There are
also no reasons furnished for the decision
to terminate her
membership or to deny an appeal hearing.
CONCLUSION
[23] I conclude that the
applicant has succeeded in making out a case for the relief claimed
in the notice of motion.
ORDER
[24] In the result an order is
granted in favour of the applicant in terms of prayers 1, 2, 3 and 4
of the notice of motion dated
14 March 2011.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL
FOR THE APPLICANT D Z KELA
INSTRUCTED BY MOKODO INC
ATTORNEYS
COUNSEL FOR FIRST RESPONDENT E
J KEELING
INSTRUCTED BY ALLARDYCE AND
PARTNERS
DATE OF HEARING 3 AUGUST
2011
DATE
OF JUDGMENT 2 SEPTEMBER 2011