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[2014] ZAGPJHC 283
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Southern African Institute of Chartered Secretaries And Administrators v Careers-In-Sync CC (14/02473) [2014] ZAGPJHC 283 (21 October 2014)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT, JOHANNESBURG LOCAL DIVISION
CASE
NO: 21815/2014
DATE:
29 SEPTEMBER 2014
In
the matter between:
Mohau
Williams Mokgatla
.....................................
First
Applicant
Nomfezo
Mdingi
...................................................
Second
Applicant
Dion
Makhura
.........................................................
Third
Applicant
Phumlile
Shange
.....................................................
Fourth
Applicant
Sello
Selepe
...............................................................
Fifth
Applicant
Jacob
Modimoeng
....................................................
Sixth
Applicant
Lance
Veotte
........................................................
Seventh
Applicant
Andre
Adams
..........................................................
Eighth
Applicant
Zakhele
Khumalo
.....................................................
Ninth
Applicant
Wycliff
Mabusela
.....................................................
Tenth
Applicant
Kennedy
Nkosi
..................................................
E
leventh Applicant
Kgosi
Makwati
.....................................................
Twelfth
Applicant
Thabisile
Manqele
..........................................
Thirteenth
Applicant
Ntokozo
Nzura
...............................................
Fourteenth
Applicant
Mampeti
Malete
...............................................
Fifteenth
Applicant
Nomcebo
Gumede
...........................................
Sixteenth
Applicant
And
South
African Municipal Workers Union
............
First
Respondent
Samuel
Molope
................................................
Second
Respondent
John
Dlamini
.......................................................
Third
Respondent
Lorraine
Baitsiwe
.............................................
Fourth
Respondent
Walter
Theledi
......................................................
Fifth
Respondent
Moses
Miya
........................................................
Sixth
Respondent
JUDGMENT
Vally J:
Introduction
1.
Apart
from the sixth, eighth and sixteenth applicants, the rest of the
applicants approach this Court as members in good standing
and as
office bearers of the first respondent for relief directed at
addressing their suspension, expulsion or “
removal
”
as members of the first respondent. The sixth, eighth and sixteenth
applicants are employees of the first respondent. The
sixth and
eighth applicants were also office-bearers. The sixth applicant was
suspended, while the eighth applicant was dismissed.
They join in the
application as they were office-bearers and the actions taken against
them affect their positions as office-bearers.
The sixteenth
applicant wishes to challenge her suspension. The first respondent is
a registered trade union. The second to sixth
respondents are office
bearers of the first respondent occupying the following positions:
the President (second respondent); First
Deputy President (third
respondent); Second Deputy President (fourth respondent); General
Secretary (fifth respondent) and the
Deputy General Secretary (sixth
respondent). All the applicants rely on the same facts for the relief
they seek. All the applicants
complain that they have been unlawfully
denied their rights as members or as elected office-bearers of the
first respondent because
they challenged the second to sixth
respondents about alleged unlawful activities involving
misappropriation of millions of rands
belonging to the first
respondent. The sixteenth applicant claims that, because she
identified with the cause of the other applicants,
the respondent saw
fit to unlawfully suspend her. Unlike the other applicants she also
relies on the remedies availed to her by
the provisions of the Labour
Relations Act 66 of 1995 (the LRA). For this reason, the applicants’
counsel, Mr Petlane, conceded
that she should not have approached
this Court for assistance, as in terms of the LRA she is excluded
from doing so if she relies
on any of the remedies availed to her by
that Act. For that reason, it was submitted no relief should be
granted to her even if
the other applicants are successful.
Essentially, the applicants ask that the decisions to suspend some of
them, to expel some
of them and the decision to “
remove
”
one of them be set aside for being unlawful.
The approach
adopted by the respondents with regard to these proceedings
2.
The
first and second respondents filed a notice of intention to oppose
(the notice). Nothing is said in this notice about the fourth,
fifth
and sixth respondents. The notice reads:
“
Kindly
take notice that the 1
st
and 2
nd
Respondents hereby file their Notice of Intention to oppose the
review application.
Kindly
take further notice that the 3
rd
Respondent (sic) has appointed the below mentioned attorneys as its
attorneys of record, at whose address it shall accept service
of all
notices is (sic) the above application.
"
3.
This
notice indicates that only the first, second and third respondents
oppose the application. However, the answering affidavit
is deposed
to by the sixth respondent and, according to the filing sheet, is
filed on his and the first respondent’s behalf
only. While no
notice of intention to oppose is filed on behalf of the sixth
respondent he, nevertheless, deposed to the answering
affidavit
which, according to the filing sheet, is the answering affidavit of
the first and sixth respondents. In the affidavit
he avers that he
deposes “
to
this affidavit on my own behalf as well as on behalf of the first and
third respondents.
”
[1]
This
confusion was never cleared up. Both senior and junior counsel for
the respondents who were in this matter from its inception
were not
able to explain this confusion save that senior counsel, Mr Raath SC,
indicated that it should be accepted that only the
first and sixth
respondents have opposed the application. He argued that the issue is
irrelevant in the light of the nature of
their opposition, which is
only a challenge to the jurisdiction of this Court to grant the
applicants the relief they seek, for
if they succeed it would be to
the benefit of all the respondents. For that reason he submitted that
this Court need not dwell
any further on this issue. If this was the
only challenge the conduct of the respondents posed I would have
little hesitation in
agreeing with their counsel and let the matter
rest. As will be seen later the approach of the respondents posed
many other challenges
for the Court. In many ways they were tardy in
the way they approached the matter and their tardiness continued
right until the
date of the hearing. It needs to be said that parties
should out of courtesy and respect for the court, their opponents and
the
legal process make every effort to avoid being tardy.
4.
The
matter initially was called in the Urgent Court on 24 June 2014. The
answering affidavit filed on their behalf raised two main
points:
firstly that the application was not urgent and secondly this Court
lacked jurisdiction to entertain the matter. They succeeded
on the
first point. The matter was then placed on the normal opposed roll.
In the answering affidavit, the sixth respondent said
that if the
matter is struck off for want of urgency, the respondents intended to
file a supplementary answering affidavit prior
to the hearing. They
were afforded the necessary time period in terms of Rule 6 to file
their supplementary answering affidavit.
Their attorney then informed
the applicants’ attorney that “(i)
n
brief, our instructions are that the matter should follow the normal
course and normal time periods for service and filing of
the
answering affidavits should be adhered to.
”
Despite their insistence that the normal time periods be adhered to
they themselves failed to do so. Upon the expiry of
the time period
afforded them by Rule 6, the attorneys of the applicant wrote several
letters to the respondents asking them to
serve and file their
supplementary answering affidavit. They failed to take advantage of
the further opportunity afforded them
by the attorneys for the
applicants. Eventually the patience of the applicants ran out
resulting in them serving and filing their
replying affidavit in a
quest to get the matter ready for hearing. The replying
affidavit was filed on 7 August 2014.
5.
The
applicants served and filed their heads of arguments as per the
relevant Practice Directive of this Court. Their heads of argument
were delivered on 13 August 2014. They immediately set the matter
down. The respondents decided not to serve and file their heads
of
argument. They were advised to serve and file a Rule 30 notice
claiming that the set down was irregular because they had not
yet
served and filed their heads of argument. The matter was placed on my
roll. I directed that the respondents file their heads
of argument by
5 September 2014. I was informed that the respondents intended to
file their supplementary answering affidavit by
5 September 2014
together with an application for condonation by 5 September 2014.
However, on 5 September 2014 they served and
filed only their heads
of argument. These consisted of ten short paragraphs dealing with the
issue of the jurisdiction of this
Court to entertain the application.
Two court days before the hearing, i.e. on 10 September 2014, the
respondents served their
supplementary answering affidavit together
with an application for condonation. Their attorney attempted to
place it in the court
file but this was not allowed.
6.
At
the hearing the respondents sought leave to apply for condonation for
the late delivery of their supplementary answering affidavit.
This
was opposed. They conceded that, should the application be granted,
the matter would have to be postponed in order to allow
the
applicants time to deliver a reply to the supplementary answering
affidavit. They tendered to pay the applicants wasted costs
occasioned by the postponement. However, it was pointed out to them
that the claim for interim relief was still before the Court.
Upon
realising that the granting of this application could also result in
the interim relief being granted in favour of the applicants,
the
respondents immediately withdrew their request to apply for
condonation for the late filing of the supplementary answering
affidavit. Instead they asked that the matter be heard and decided
solely on the issue of the jurisdiction of this Court to entertain
the matter. In essence, they specifically renounced any right to
apply for condonation to deliver their supplementary answering
affidavit.
7.
In
the light of this election made by them, the issue of which
respondent opposes the application, and which does not, is moot.
8.
However,
it is significant to note that they have not dealt with the factual
allegations contained in the founding affidavit. From
24 June 2014 to
15 September 2014 they did nothing to present the factual material
they rely upon to show that the applicants’
cause of action is
unworthy. Their counsel was not able to furnish any reason for their
conduct. This is unfortunate.
The case of
the applicants
9.
Save
for the sixth, eighth and sixteenth applicants, all applicants are or
were members of the first respondent. All of them are/were
office
bearers of the first respondent.
9.1.
Ten
of them were “
expelled
”
between the period 29 April 2014 and 6 June 2014. The applicant that
was expelled and the position he/she held at the time
of the
expulsion is captured in the following table.
Applicant
Position
Date Expelled
First
Provincial Secretary, Gauteng Province
2 June 2014
Second
Deputy Provincial Secretary, Gauteng Province
29 May 2014
Third
Jo’burg Regional Chairperson
29 May 2014
Fifth
Provincial Chairperson, North West Province
29 May 2014
Seventh
Provincial Chairperson, Western Cape Province
29 May 2014
Ninth
Provincial Chairperson, Mpumalanga Province
29 May 2014
Tenth
Regional Chairperson, Mpumalanga Province
29 May 2014
Eleventh
Regional Chairperson, Mpumalanga Province
29 May 2014
Twelfth
Acting Provincial Secretary, Mpumalanga Province
29 May 2014
Thirteenth
Acting Deputy-Provincial Secretary, Mpumalanga Province
29 May 2014
9.2.
It
appears that all the letters of expulsion received by the
aforementioned applicants were signed by the sixth respondent on
behalf
of the fifth respondent The fifth respondent is the General
Secretary of the first respondent, and the letters were issued from
his office and signed on his behalf in his capacity as the General
Secretary. In each of the letters the fifth respondent accused
the
respective applicant of engaging in conduct that he described as
“
unruly”
and then proceeded to say the following:
“
In
the light of the above, the Union hereby expel you from the Union
with immediate effect. The Union shall forthwith advise your
employer
of the expulsion and that it stops deducting your membership fee
anymore as you are no longer its member.
”
9.3.
He
furnished no details of the alleged “
unruly”
behaviour
that each of them was found guilty of. The contents of the
letter may have been curt and to the point, but they
were hardly
illuminating. There is no reference in the letter to the constitution
of the first respondent or any other document
on which the first,
fifth or sixth respondent relied for taking the decision to expel
these applicants. The author gives no information
as to who took the
decision, when it was taken and how it was taken.
9.4.
The
fourth, sixth, eighth and fourteenth applicants were each furnished
with a letter of suspension. The details of their suspension
are
reflected in the following table:
Applicant
Position
Date Suspended
Fourth
Regional Deputy-Chairperson, Johannesburg
29 May 2014
Sixth
North West Provincial Secretary
02 June 2014
Eighth
Western Cape Provincial Secretary
8 May 2014 (employment terminated on 29 May 2014)
Fourteenth
Regional Secretary, Kwa-Zulu Natal
29 April 2014
9.5.
The
sixth and eighth applicants are also employees of the first
respondent. The first respondent suspended the sixth applicant on
02
June 2014 and terminated the employment contract of the eighth
applicant on 29 May 2014. Neither of them rely on their employment
rights as established in terms of the LRA. However, the unique
character of their situation is dealt with in a shortwhile.
10.
The
fifteenth applicant was the National Treasurer of the first
respondent and was “
removed
”
during the sitting of its Special Central Executive Committee of the
first respondent
[2]
held on
the 23
-
25 April 2014. It is not clear whether “
removed
”
bears the same meaning as “
expelled
”,
or whether it merely means that she has retained her membership but
has lost her position as an office bearer. In any case,
given the
conclusion I reach there is no need to resolve this question.
11.
The
applicants claim that the actions taken by the first respondent
against them is in breach of the provisions of the constitution
of
the first respondent. They claim further that the constitution
constitutes a contract between themselves and the first respondent.
Mr Raath SC conceded that this is so, but maintained that this does
not alter the legal position which is that this Court has no
jurisdiction to entertain the application. Nevertheless, the
respondents do not dispute that the applicants’ entire cause
of
action rests on the failure of the first respondent to comply with
the provisions of its constitution.
12.
The
constitution of the first respondent establishes various hierarchical
structures which allow for the participation of members
in the
decision making processes of the first respondent. They are also
aimed at ensuring that the first respondent’s operations
and
day-to-day functions are carried out in a manner that protects,
promotes and enhances the interests of its members. The first
respondent operates at a national level. The structures established
by its constitution are based on a demarcation of the various
geographical regions within the Country in which the first respondent
has a presence. For purposes of this application the following
structures are particularly pertinent:
12.1.
Regional
Shopstewards Council (“RSSC”)
12.2.
Regional
Executive Committee (“REC”)
12.3.
Provinces
of the Union
12.4.
Provincial
Congresses
12.5.
Provincial
Executive Committee (PEC)
12.6.
Provincial
Disciplinary Committee (“PDC”)
12.7.
National
Executive Committee (“NEC”)
12.8.
Finance
Committee (“Fincom”)
12.9.
National
Disciplinary Committee (“NDC”)
12.10.
Central
Executive Committee (“CEC”)
12.11.
National
Congress
13.
Members
of the first respondent are elected for a specified time-period to
serve on one or more one of these structures. Most applicants
have
been duly elected to serve on one or more of these structures. The
papers are very illuminating when it comes to identifying
which
structure a particular applicant has been duly elected to serve upon.
14.
The
applicants complain that the decisions to suspend, expel or “remove”
(in the case of the fifteenth respondent) them
were not in accordance
with the provisions of the constitution. The clauses (referred to in
the constitution as “
Sections
”)
in the constitution relevant to this issue are clauses 3.5.3, 6.5.6,
7.3.9 and 16.
14.1.
The
provisions of clause 3.5.3 read:
“
3.5.3
Members may be expelled or suspended from membership through a
decision in terms of the disciplinary procedure of the union
in
Section 16 of this Constitution.
”
[3]
14.2.
The
provisions clause 6.5.6 reads
“
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% of those entitled to vote. Both ballots
must be preceded by
full motivation.
”
[4]
14.3.
The
provisions of clause 7.3.9 read
“
7.3.9
One or more of the elected Office Bearers may be removed from office
in the event that a majority of the Congress, voting
by ballot,
should so decide. A motion to institute such ballot shall be passed
by at least (twenty percent) 20% of those entitled
to vote. Both
ballots must be preceded by full motivation.
”
[5]
15.
The
provisions of the three sub-clauses are identical in terms, save for
the fact that they refer to the different structures that
are
empowered to take the decision to “
remove
”,
suspend or expel members of the first respondent.
16.
Clause
16 specifies the processes to be followed should the first respondent
elect to take disciplinary action against a member,
shopsteward or
office bearer. The clause also specifies the rights of each person
against whom disciplinary action is anticipated,
as well as the
processes to be followed by that person should she be aggrieved by
the punitive action imposed by the respective
committee taking the
decision to discipline her, by suspending, expelling or by “
removing
”
her.
17.
The
applicants’ claim that the provisions of the constitution,
particularly those that make up sub-clauses 3.5.3, 6.5.6 and
7.3.9,
have not been adhered to. These sub-clauses define their rights, and
failure to comply with them is an unlawful breach.
This warrants the
relief they seek, namely to have the decisions taken declared as
having no legal force and effect, and to have
them set aside.
They claim that the respondents took these decisions because they
were unhappy that the applicants alleged
abuse of powers by the
second to sixth respondents and raised issues concerning the
“
financial
mismanagement and possible corruption
”
of and by some or all of the second to sixth respondents. This, the
applicants say, has resulted in the misappropriation
of some One
Hundred and Twenty Million Rands (R120 000 000.00). They allege
further that the second to sixth respondents have refused
to furnish
the Fincom with copies of the bank statements of the first respondent
on the basis that these constitute confidential
information.
[6]
They
allege that certain firms of attorneys may have been paid substantial
sums without cause. They allege further that a substantial
amount (no
less than nineteen million rands (R19 000 000.00) of the first
respondent’s money was spent by the second to sixth
respondents
without authorisation. Finally, they allege that the second to sixth
respondents irregularly concluded contracts on
behalf of the first
respondent for the hiring of photocopiers which resulted in the first
respondent losing between four and six
million rands (R4 000 000.00 –
R6 000 000.00). The founding affidavit is replete with an averment
inviting (though the word
preferred by the deponent is “
challenge
”
rather than “
invite
”)
the second to sixth respondents to deal with these factual
allegations. The respondents, as we know, have declined the
invitation. The failure of the respondents to traverse these factual
allegations means that this Court has no choice but to accept
that
they are true.
18.
Of
particular importance is the fact that the respondents do not dispute
that the decisions taken by the first respondent were in
accordance
with the said provisions, or any other applicable provision, of the
constitution. Their claim is that the issue to be
decided lies within
the exclusive jurisdiction of the Labour Court, and thus this Court
lacks the jurisdiction to grant the relief
sought. They concede,
however, that if this Court comes to the conclusion that it has the
necessary jurisdictional power to entertain
the application, the
relief should be granted as they have elected to present no defence
on the merits of the applicants’
claim. In the circumstances
the only issue before this Court is the issue of “
the
power invested in
(this)
Court
to adjudicate over, determine and dispose of
”
[7]
the
dispute between the applicants and the respondents, especially the
first respondent.
The jurisdiction of this Court to determine the dispute brought to it
19.
The
respondents vigorously contend that this Court’s jurisdiction
to determine the dispute brought to it by the applicants
has been
ousted by the LRA. They rely on the provisions of s 158(1)(e)(i) read
with ss 157(1) and (2) of the LRA to support their
contention.
Section 157 deals with the jurisdiction of the Labour Court. Section
158 deals with the powers of the Labour Court.
The legislature deemed
it necessary to keep the two distinct, and upon careful perusal of
their respective provisions it becomes
clear that they are also
different. Section 157 deals with its authority over certain types of
matters, whereas ss 158(1) deals
in the main with the kinds of orders
it may grant.
20.
Before
exploring the contents of these provisions it is important to take
note of section 151 of the LRA as the Labour Court is
established in
terms of this section. According to this section, the Labour Court is
“
a
court of law and equity.
”
This is the emblem of the Labour Court; it is its specific and unique
characteristic. There is no equivalent provision concerning
the High
Court in either the
Constitution
of the Republic of South Africa Act 108 of 1996
(“the Constitution) or the Supreme Court Act 59 of 1959.
[8]
In
terms of these sections the High Court is simply vested with judicial
authority and is, therefore, only a court of law. The fact
that
certain causes of action, such as, for example, unjustified
enrichment, have embedded in them considerations of equity does
not
detract from the fact that the Court itself is not a court of equity.
21.
The
provisions of s 157 and s 158(1)(e)(i) read:
“
157(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.”
“
158(1)
The Labour Court may-
(e) determine a dispute between
a registered trade union ... and any one of the members or applicants
for membership thereof, about
any alleged non-compliance with-
(i)
the constitution of that trade union ...
”
22.
There
can be little doubt that s 157(1) precludes jurisdiction of the High
Court in respect of all matters that in terms of the
LRA or any other
law are to be determined by the Labour Court. This begs the question:
which matters are to be determined “
in
terms of the LRA or any other law
”?
It is a question that has taxed the minds of many courts over the
last twenty years, including that of the Constitutional
Court.
Unfortunately, the answers provided thus far have failed to end the
controversy that surrounds this issue. Litigants, such
as the present
applicants,
[9]
continue
to approach this Court even when they may have a tailor made remedy
“
in
terms of the LRA or in terms of any other law
”
which can be obtained in the Labour Court and their opponents often
challenge the jurisdiction of this Court to entertain
the matter.
23.
The
question before this Court is whether s 158 (1)(e)(i) compels the
applicants to take their present complaint to the Labour Court.
There
can be little doubt that it affords them the opportunity to take it
there, but this does not mean that that forum is the
only one that
can grant them the remedy they seek. There is substantial learning to
the effect that because an employee has rights
in terms of the LRA,
it does not mean that she must bring her case on the terms prescribed
in the LRA. She may have more than one
cause of action open to her,
such as a claim for unfair labour practice, or a claim for breach of
contract pure and simple, in
which case she may elect to rely on only
one of those causes of action. She may choose to rely exclusively on
her general common
law contractual rights, and if she does so she is
free to seek relief in the High Court rather than in the Labour
Court. Instructive
in this regard are the following authorities:
Fedlife
Assurance Ltd v Wolfaardt
[10]
;
United
National Public Servants Association of SA v Digomo and Others
[11]
;
Old
Mutual Life Assurance Co SA Ltd v Gumbi
[12]
;
Boxer
Superstores Mthatha & Another v Mbenya
[13]
,
Transman
v Dick and Another
[14]
and
Makhanya
v University of Zululand
.
[15]
24.
Fedlife
laid
the foundation for this principle. It has survived the development of
the jurisprudence in this area over the last ten or more
years. The
rationale
for its decision is aptly captured in the following two paragraphs:
“
In
considering whether the 1995 Act should be construed to that effect
it must be borne in mind that it is presumed that the Legislature
did
not intend to interfere with existing law and
a
fortiori
,
not to deprive parties of existing remedies for wrongs done to them.
A statute will be construed as doing so only if that appears
expressly or by necessary implication (
Stadsraad
van Pretoria v Van Wyk
1973 (2) SA 779
(A) at 784D - H). While the advent of the
Constitution, and s 39(2) in particular, has not had the effect of
prohibiting entirely
the use of the presumption against legislative
alteration of the existing law (whether common law or statute) when
interpreting
a statute which is less than clear, it nevertheless
limits its field of application. To illustrate: where a statute is
ambiguous
as to whether or not an existing law or right has been
repealed, abolished or altered and the existing law or right is not
in harmony
with 'the spirit, purport and objects of the Bill of
Rights' there would appear to be no justification for invoking any
such presumption.
But where the existing law or right is not
unharmonious the presumption will still find application. The
continued existence of
the common-law right of employees to be fully
compensated for the damages they can prove they have suffered by
reason of an unlawful
premature termination by their employers of
fixed term contracts of employment is not in conflict with the
spirit, purport and
objects of the Bill of Rights and it is
appropriate to invoke the presumption in the present case.
The
1995 Act does not expressly abrogate an employee's common-law
entitlement to enforce contractual rights and nor do I think that
it
does so by necessary implication. On the contrary there are clear
indications in the 1995 Act that the Legislature had no intention
of
doing so.
[16]
25.
Once
it is recognised that even with regard to unfair labour practice
[17]
,
which really constitutes the kernel of the LRA, the remedies provided
therefor in the LRA “
are
not exhaustive of the remedies that might be available to employees
in the course of the employment relationship,”
[18]
it
becomes clear that the aggrieved employee remains free to take
advantage of those remedies despite the ones available to her
in the
LRA. After all, as the majority judgment in
Fedlife
points out:
“
Whether
a particular dispute falls within the terms of s 191 depends upon
what is in dispute, and the fact that an unlawful dismissal
might
also be unfair (at least as a matter of ordinary language) is
irrelevant to that enquiry. A dispute falls within the terms
of the
section only if the 'fairness' of the dismissal is the subject of the
employee's complaint. Where it is not, and the subject
in dispute is
the lawfulness of the dismissal, then the fact that it might also be,
and probably is, unfair, is quite coincidental
for that is not what
the employee's complaint is about.”
[19]
26.
The
finding in
Fedlife
was endorsed by the Constitutional Court in
Federicks
& Others v MEC for Education & Training, Eastern Cape and
Others.
[20]
In
Gcaba
v Minister for Safety and Security
,
too the Constitutional Court accepted this principle and further
noted:
“
Furthermore,
the LRA does not intend to destroy causes of action or remedies and s
157 should not be interpreted to do so. Where
a remedy lies in the
High Court, s 157(2) cannot be read to mean that it no longer lies
there and should not be read to mean as
much. Where the judgment of
Ngcobo J in
Chirwa
speaks of a court for labour and employment disputes, it refers to
labour- and employment-related disputes for which the LRA creates
specific remedies. It does not mean that all other remedies which
might lie in other courts, like the High Court and Equality Court,
can no longer be adjudicated by those courts. If only the Labour
Court could deal with disputes arising out of all employment
relations, remedies would be wiped out, because the Labour Court
(being a creature of statute with only selected remedies and powers)
does not have the power to deal with the common-law or other
statutory remedies.
”
[21]
27.
The
applicants disavow any reliance on s 158 (1)(e)(i) for the relief
they seek. They have no desire to benefit from the equity
jurisdiction of the Labour Court. They have no interest in the
unfairness of the decisions taken by the first respondent. They
rely
exclusively on its unlawfulness for the relief they seek.In other
words, theirs is not a double-barrelled application. It
stands or
falls on a single issue (that of the lawfulness of the first
respondents' decisions). Nor do they rely on their rights
as trade
union members as spelt out in the LRA, or on any of the other rights
or protections afforded to them by any of the provisions
of the LRA.
The lawfulness of the decision is to be determined by having regard
to the common law principles only.
28.
Mr
Raath SC argued that regardless of how the applicants have crafted
their case, in essence it is a complaint about the alleged
non-compliance with the constitution of the first respondent, and, as
the first respondent is a registered trade union, their complaint
falls squarely within the provisions of s 158(1)(e)(i) of the LRA and
therefore within the exclusive purview of the Labour Court.
This is
the kind of matter for which the Labour Court has been established.
The applicants should not be allowed to avoid the LRA
by claiming to
rely on common law rights when they find themselves in a situation
envisaged by the LRA which deliberately and specifically
provides
them with a remedy to overcome their situation. This argument, in my
view, fails to recognise that the election is for
them to make. The
LRA has not removed this elective power. It has merely offered them
the opportunity to take their claim to the
Labour Court and to take
advantage of its equity jurisdiction. Section 158(1)(e)(i) is merely
an invitation to call upon the Labour
Court for assistance. They,
nevertheless, are free to decline the invitation, but do so at their
own peril. If they choose to sterilise
their claims so that they fall
exclusively within the confines of the contractual common law they
can approach this Court. The
LRA does not deprive them of their
common law rights, nor does it deprive them of the right to invoke
this Court’s jurisdiction
to secure those rights. This
conclusion, I believe, is consistent with the learning established by
the list of Supreme Court of
Appeal cases referred to above and which
has been endorsed by the Constitutional Court in
Fredericks
[22]
and in
Gcaba
.
[23]
29.
In
conclusion, I hold that this Court is invested with the necessary
authority to determine and dispose of this matter. It is a
conclusion
that very recently has been reiterated by Mojapelo DJP in
Numsa.
[24]
The position
of the sixth, eighth and sixteenth applicants
30.
There
is another clause that is particularly pertinent, namely, clause 16
which is headed “
Discipline
of members, shopstewards and office bearers
”.
It is a lengthy clause. The substance of its provisions are that the
first respondent is entitled to take disciplinary
steps against any
“
member,
shopsteward or office bearer
”,
the consequence of which could be that the respective individual is
suspended, expelled or “removed”. The three
structures
established to attend to the disciplining of the “
members,
shopstewards or office bearers
”
are the
Regional
Disciplinary Committee
(the RDC), the
Provincial
Disciplinary Committee
(the PDC) and the
National
Disciplinary Committee
(the NDC). The general provisions of this clause establishes the
following three principles:
“
Any
member, shopsteward or office bearer of the union may have
disciplinary steps taken against them if they act in a manner
detrimental
to the union or in contravention of its constitution or
policies.”
[25]
“
Nothing
in this clause denies the right of any structure to recall an elected
representative for any cause it deems fit.”
[26]
“
Disciplinary
Hearings shall be conducted through standing Regional (RDC)
Provincial (PDC) and National (NDC) disciplinary committees
consisting of 5 members appointed by the REC, PEC and CEC
respectively. Membership of these committees shall be reviewed
annually.
”
[27]
31.
It
is common cause that the provisions of these clauses were not adhered
to when the decision to suspend, expel or “
remove
”
any of the applicants was taken. There is, however, a sub-clause that
has a direct bearing on the claims of the sixth and
eighth
applicants. It is sub-clause 16.5.5 and it reads:
“
Notwithstanding
this clause any Regional, Provincial or General Secretary, being
employees of the union, shall be dealt with in
terms of the Staff
Disciplinary procedure and code as adopted in terms of clauses
9.3.2(h) and 15.5
”
32.
The
sixth applicant is the North West Provincial Secretary and the eighth
applicant is the Western Cape Provincial Secretary. The
eighth
applicant was dismissed as an employee. The provisions of the
sub-clause 16.5.5 speak specifically to their situation. It
provides
that any action taken against them is taken in terms of the “
Staff
Disciplinary procedure
”.
Hence, to the extent that they rely on their contractual rights as
expressed in the constitution they have to accept that
in terms of
that contract they have agreed to be bound by the “
Staff
Disciplinary procedure
”.
For all intents and purposes they are to be treated as employees and
not as office bearers when any disciplinary action
is taken against
them. They cannot seek any remedy availed to them by virtue of the
first respondent’s non-compliance with
the provisions of the
constitution, as it explicitly provides that they are bound by, and
are to be dealt with, in their capacity
as employees in terms of the
“
Staff
Disciplinary procedure
”.
Their rights and remedies lie in the provisions of that document.
Nothing has been placed before this Court to show that
the provisions
of that document have been breached. In that regard, their position
is no different to that of the sixteenth applicant
who, the
applicants admit, should not be seeking, and cannot be granted,
relief by this Court.
Discretion to
refuse the relief
33.
It
was contended by Mr Raath SC that if this Court were to conclude that
it is clothed with the necessary jurisdiction to entertain
the
application, it should nevertheless refuse to grant the relief
sought, as the applicants are not without blame for the positions
they find themselves in. In this regard, he drew my attention to the
fact that the first respondent has secured two interdicts
from the
Labour Court against some of the applicants for allegedly conducting
themselves in a disruptive manner. To support his
contention that
this Court has discretionary power to refuse the relief he relied on
administrative law principles which have been
spelt out in
Judicial
Service Commission v Cape Bar Council,
where the Court pointed out that “
(t)he
mere fact that an administrative decision was unlawful does not visit
all its consequences with automatic invalidity.
[28]
I am of
the view that this principle is not applicable to an act of
unlawfulness arising from a breach of contract, however, even
if I am
wrong in this regard, for reasons set out here I do not believe that
it would be correct to exercise such discretion in
favour of the
respondents.
34.
The
applicants have painted a dire picture of the conduct of the second
to sixth respondents and of the state of affairs of the
first
respondent. These respondents have elected not to take issue with the
factual allegations placed before this Court by the
applicants. They
are accused of misappropriating millions of rands and when asked by
the applicants to account for this they decided
to secure the
suspension, expulsion or “
removal
”
of each of the applicants. This, no doubt, is designed not only to
punish the applicants but also to deter any other member
of the first
respondent from raising any concerns about the alleged
misappropriation of the funds, or calling for any action against
them. It may be one reason why the second to sixth respondents have
shown such callous disregard for the relevant provisions of
the
constitution of the first respondent, and why they have adopted such
a tardy approach to this litigation. If this Court has
discretion to
refuse the relief sought despite the illegality of the respondents’
conduct, it would not, in my view, be in
the interests of justice to
do so. It is in the public interest that the second to sixth
respondents be made to account for the
funds alleged to have been
misappropriated. To refuse to grant the relief sought would mean that
those calling for such accountability
are the ones that are punished,
and those that are responsible for the alleged misappropriation are
allowed to escape scrutiny.
Order
35.
For
the reasons set out above the following orders are made:
1
The
application of the sixth, eighth and sixteenth applicants is
dismissed for want of jurisdiction.
2
The
decision of the first respondent to expel the first, second, third,
fifth, seventh, ninth, tenth, eleventh, twelfth and thirteenth
applicants is declared to be unlawful and invalid and is set aside.
3
The
decision of the first respondent to suspend the fourth and fourteenth
applicants is declared unlawful and is set aside
4
The
decision of the first respondent to remove the fifteenth applicant is
declared unlawful and is set aside.
5
The
respondents are jointly and severally liable for the costs of this
application, which costs are to include those occasioned
by the
employment of two counsel.
Vally
J
Judge of
the Gauteng High Court
29September
2014
Appearances:
For the
Applicants : Adv M MPetlane with Adv Sihlali
Instructed
by : Mathope Attorneys
For the
First Respondent : Adv R J Raath SC with Adv R Venter
Instructed
by : Maenetja Attorneys
Date of hearing : 15
September 2014
Date of judgment : 29
September 2014
[1]
Answering
affidavit, p 300, para 4
[2]
Answering
affidavit, p 312, para 36.8
[3]
p
106
[4]
p
112
[5]
p
114
[6]
Founding
affidavit, pp 22-23, para 53.1
[7]
Jurisdiction
is defined in these terms in
Ewing
McDonald& Co Ltd v M & M Products Co
[1990] ZASCA 115
;
1991 (1) SA 252
(A) at 256G
[8]
The
High Court is established in terms of s 2 of the Supreme Court Act
as well as in terms of s 166 of the Constitution. The jurisdiction
of the High Court is dealt with in s 169 of the Constitution.
[9]
Very
recently, three trade unions affiliated to the Congress of South
African Trade Unions (COSATU) together with the General
Secretary of
COSATU chose to approach this Court rather than the Labour Court to,
inter
alia
,
review and set aside the decision of the Central Executive Committee
of COSATU to suspend the General Secretary and to institute
disciplinary proceedings against him for allegedly committing a
misconduct during working hours at the workplace. See the unreported
judgment of Mojapelo DJP in
National
Union of Metal Workers of South Africa and 3 Others v Congress of
South African Trade Unions and 7 Others
(32567/13) [2014] ZAGPJHC 59 ( 4 April 2014)
[10]
2002
(1) SA 49
(SCA); ((2001) 22
ILJ
2407 (SCA))
[11]
(2005)
26
ILJ
1957 (SCA); ((2005)
12
BLLR
1669
(SCA))
[12]
2007
(5) SA 552
(SCA); ((2007)
8
BLLR
699
(SCA))
[13]
2007
(5) SA 450
(SCA)
[14]
2009
(4) SA 22
(SCA)
[15]
2010
(1) SA 62
(SCA)
[16]
Fedlife
,
fn 10, at [16] and [17]
[17]
This
right is captured in s 185 of the LRA
[18]
United
Public Servants Association
.
fn 11, at {4}
[19]
Fedlife
,
fn 10, at [27], See also
Boxer
Superstores
,
fn 13, at [5]
[20]
[2001] ZACC 6
;
2002
(2) SA 693
(CC) at
[38]
[21]
2010
(1) SA 238
at [73]
[22]
See
fn 20
[23]
See
fn 21
[24]
See
fn 9
[25]
Clause
16.1.1, p 126
[26]
Clause
16.1.2, p 126
[27]
Clause
16.1.3, p 126
[28]
2013
(1) SA 170
(SCA) at [13]