About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 353
|
|
Dube and Others v Mofokeng and Others (36131/2014) [2014] ZAGPJHC 353 (30 October 2014)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 36131/2014
DATE: 30 OCTOBER 2014
In the matter between:
JOHANNES
DUBE
..............................................................
First
Applicant
SCOTCH MPONENG
DIBETSO
.....................................
Second
Applicant
LAWRENCE
NEZELE
........................................................
Third
Applicant
And
SIMON
MOFOKENG
......................................................
First
Respondent
THAMSANQA
MHLONGO
........................................
Second
Respondent
LUCAS
MASHEGO
.......................................................
Third
Respondent
NOCONGRESS EUNICE
DLODLO
............................
Fourth
Respondent
CHEMICAL, ENERGY, PAPER, PRINTING
WOOD AND ALLIED WORKERS
UNION
.....................
Fifth
Respondent
J U D G M E N T
TSHABALALA, J:
[1] This is an application by three
regions of a union on an urgent basis to stop the holding of a
special National Executive Committee
(NEC) meeting scheduled for the
17th and 18th October 2014.
[2] The following are common cause
facts alternatively not disputed facts:
2.1 The union consists of a total of
nine regions which almost correspond with the country’s
provinces.
2.2 The three applicant regions Wits,
North West and Western Cape are represented by their current
chairpersons elected in a process
which the mother body refuses to
recognise.
2.3 The union is threatened by the
Department of Labour with deregistration for failing to submit its
Audited Financial Statements
timeously.
2.4 On receipt of the notification to
deregister the union, the first respondent issued a notice to convene
a meeting on the 8th
August 2014 of the NEC for the 13th and 14th
November 2014.
2.5 Certain conditions were attached to
the attendance by the delegation from the three applicant regions
which conditions were
to be complied with before the meeting of the
13th -14th November 2014.
2.6 On the 26th August 2014 the three
applicant regions resolved to re-run the elections of 2013 pursuant
to which they came to
power in compliance with the conditions
stipulated in 2.5 above.
2.7 The elections are scheduled for the
18th October 2014 for both the Wits and North West Regions and for
the first November for
the Western Cape.
2.8 On the 26th September 2014 the
first respondent/national leadership issued another notice convening
a special National Executive
Committee meeting for the 10th and the
11th October 2014 which the applicants allege they received on 2
October 2014.
2.9 The applicants objected to the
scheduling of this meeting.
2.10 There was an exchange of
correspondence between the feuding parties concerning the convening
of this meeting which failed to
resolve their impasse.
2.11 The meeting scheduled for the
10th-11th October 2014 did not take place because the attendees did
not form a quorum.
2.12 In a letter dated the 9th October
2010 from the legal representatives of the respondent, the applicants
were advised that their
presence at the special NEC meeting will not
be recognised. In the same letter it was suggested that the office
the incumbent Regional
leadership had replaced was the one that would
be recognised to represent the three regions.
2.13 When the meeting failed to form a
quorum, the first respondent then gave six days’ notice of the
same meeting scheduled
for the 17th October 2014.
2.14 On the 13th October 2014 on Monday
the applicants launched the present application on an urgent basis to
be heard on Thursday
the 16th October 2014.
2.15 The parties submitted their heads
of argument for which I am grateful.
2.16 The respondents did not file any
answering affidavit/s contending instead that they intended raising
two points in limine,
which, in their view would be dispositive of
the case. They also indicated that they will argue on the applicants’
own papers.
2.17 The following points were raised:
2.17.1 The non-joinder of the other
regions in this application.
2.17.2 Urgency was disputed
alternatively self-created.
2.17.3 The third point related to the
merits of the case and concerned one of the requirements of an
interdict, viz failure to demonstrate
prejudice in the sense of
obtaining substantial redress after the meeting.
2.18 The other regions of the union
were not cited as parties to the application.
[3] After argument I granted prayers 1,
2 and 3 of the Notice of Motion and reserved the issue of costs
indicating that I will deal
with that issue in my judgment.
[4] I now proceed to deal with the
reasons for my order.
4.1 Ad Non-Joinder
The parties cited in the application as
respondents are, the general secretary, the president, his deputy and
second deputy president
and the union.
The NEC consists of inter alia the
national leadership of the union, the regional secretaries, the
leadership of the regions and
the additional delegates from the
regions depending on the membership of those regions.
By reason of the fact that the regions
are represented in the NEC and were invited to and expected to attend
the meeting, the respondents
argue that their omission from the
application is fatal to the application on the basis that they will
not be heard although they
are an integral part of the NEC.
The union is made up by its membership
from the regions, without which there is no union.
Having regard to section 42 of the
Constitution dealing with the establishment and powers of the NEC it
is clear that the regions
have no independent/separate identity
outside of the union. They are part of the union and in fact
constitute the union. By citing
the union as a party to the
proceedings one ipso facto includes the regions in such a citation.
The union represents the regions
in a court process and not vice
versa.
In my view, therefore, the issue of
non-joinder stands to fail on this ground alone.
4.2 Urgency
The respondents having not filed
papers, I inquired from their counsel what the effect of not going
ahead with the meeting would
be. This would have enabled me to
determine whether or not its cancellation would bring about
consequences which I as an outsider
could not foresee.
The response I got was that the onus
was on the applicants to establish urgency and not on the respondents
to prove its non-existence.
It was also put to me that there was no
lawful impediment for the union to hold its meeting during October
2014.
I was therefore left with only one
version before me on the issue of urgency, namely that of the
applicants.
According to the applicants, notice of
the meeting scheduled for the 10th-11th October 2014 came to their
attention on the 2nd October
2014 which was not disputed.
Correspondence exchanged hands between
the parties inter se and their legal representatives culminating in
the applicants being
advised on Thursday the 9th October 2014 that
they will not be permitted to participate in the meeting of the
10th-11th October
2014.
I have considered the communication
between the parties themselves, and between their legal
representatives during the period 2nd
October 2014 until the 9th
October 2014. I am satisfied with regard thereto, that the
applicants were trying to broker the stalemate
between the parties
and to obtain clarity on their status at the meeting. The matter was
not resolved.
On Monday the 13th October 2014 the
present application was launched and service thereof effected on the
same day.
On these facts, I am satisfied that
urgency has been established and that on the facts presented before
me, the delay, if any, in
launching the application was justified by
the steps the applicants took to resolve the issue of their status
and the staging of
the meeting without resorting to a legal battle.
The delay, if any, was not so unreasonable that it could be said that
it cancelled
out urgency.
I am therefore satisfied that urgency
has been established.
4.3 Substantial Redress
The requirements for an interdict,
depending on whether it is for an interim or permanent relief, have
one common requirement, in
them, namely harm or damage that cannot be
redressed.
The other requirements for the
interdict sought were not challenged. Only the requirement of the
existence of substantial redress
was raised by the respondents.
According to the respondents the
applicants could still obtain substantial redress against the
respondents even if the meeting proceeded.
According to the
respondents, the applicants could, if they win the regional elections
scheduled for the 18th October and 1st November
2014 attend the
meeting of the 13th-14th November 2014 and reverse or vote to reverse
the results of the resolutions taken at the
meeting sought to be
interdicted.
The respondents’ further argument
is that the decision/s taken at the meeting of the 17th-18th October
2014 could be legally
challenged to be set aside. On the grounds that
the applicants have these further avenues open to them, the
respondents argue that
they can subsequently obtain sufficient
redress, and therefore that the prejudice they will suffer if the
meeting proceeds is not
without remedy.
The choice to adopt a particular
procedure/step and to seek the relief that suits one is that of the
applicant, provided of course
that the requirement for an interdict
are established. I do not understand the existence of substantial
redress to mean that merely
because it is there, the applicant who
seeks an interdict should not succeed.
Various factors including treating each
case on its merits need to be taken into consideration to conclude
that the redress that
will be attained subsequently will achieve the
same or substantially the same objective that the interdict seeks to
achieve.
The special NEC scheduled for the
17th-18th October 2014 has on its agenda various highly contested
issues as the approval of Audited
Financial Statements, regional
congresses, the union’s investments report and an update on the
progress on the issue relating
to the Department of Labour.
I was referred to an affidavit of the
first respondent in an earlier application brought by the first to
the fourth respondents
in this very court under Case No 18942/2014
para 43.2 thereof where he states:
“43.2 This is because in order to
call a NEC, the regional processes are required to have been lawfully
conducted, in order
that those representatives of the Regions who
attend the NEC are validly and lawfully present. As set out in the
main application,
the Applicants have serious concerns about the
validity of the Regional processes which feed into the NEC. Despite
the need to
hold an NEC meeting the second applicant and I were not
prepared to call a meeting of the NEC until the irregularities in the
representation
of various regions had been corrected. We were not
willing to hold such a critical NEC meeting in circumstances in which
the meeting
would not be properly convened because the
representatives of three regions had not been properly selected.”
On this excerpt alone the first
respondent admits and recognises the need for the presence of the
three applicant regions at the
NEC. By convening the meeting of the
17th October 2014, the first respondent seeks to do exactly that
which he concedes is inadvisable
to do.
Should the meeting proceed, decisions
and resolutions may be taken which may have far reaching implications
on the applicants or
their regions particularly in view of the fact
that the national leadership has already appointed the regional
representatives
to the special NEC without the input of the affected
regions.
The Audited Financial Statement and the
Union Investments will be deliberated upon in the absence of those
critical of them. The
fact that they may subsequently obtain redress
at an undetermined period, in my view does not preclude them from
being present
and participating in those deliberations before the
reports concerning these items on the agenda are adopted.
Prejudice, on this issue, exists in
having a meeting that you are entitled to participate in personally,
or through a representative
of your choice take place in your absence
and to your exclusion. The prejudice of not being heard and being
expressly excluded
in a meeting that you qualify or may quality to
attend cannot be redressed by your right to set aside the decisions
taken in your
absence.
Firstly, various factors may affect the
holding of the meeting of the 13th-14th November 2014. These factors
may be deliberately
engineered or may follow the same fate that
befell the failed meeting of the 10th-11th October 2014.
Secondly, the reviewing of the
resolutions or decisions taken in the meeting of the 17th-18th
November 2014 may be too late, due
to the fact that the Audited
Financial Statements, if adopted, may already have been forwarded to
the Department of Labour, and
recalling them may have consequences
that are fatal for or too drastic for the union.
Resolutions on how to deal with the
Investments may have been taken at this meeting. The reversal of
those decisions at the 13th-14th
meeting may also result in
unforeseen consequences.
Should the meeting have proceeded and
the applicants subsequently apply to set aside those decisions in
court and the matter became
opposed, it is more than likely that the
date for the hearing of such opposed application will be in February
or March 2015.
All these facts, in my view, amount to
prejudice on the part of the applicants. The fact that they get
relief five or six months
later does give them substantial redress.
COSTS
[5] This is an application brought by a
union, albeit branches thereof, against itself. A costs order will
entail a union paying
costs against itself by taking from the one
pocket and putting the money into the other pocket.
This issue was not raised in the
papers, nor was it addressed by counsel in argument.
The order I confirm therefore is the
following:
1. The applicants are granted leave to
move this application as a matter of urgency, dispesing with the
forms and services provided
for in the Uniform Rules.
2. The National Executive Committee of
the CEPPWAWU is interdicted and restrained from holding the deferred
meeting on the 17th
October 2014 and from conducting the meeting and
taking any resolution of the NEC on such occasion.
3. The NEC is interdicted from taking
any further decisions without the participation of the applicants’
delegates, or until
such time as the regional congresses (applicants
and the re-election of regional office bearers) have taken place.
4. No costs order is made.
N D TSHABALALA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR APPLICANT ADV O A COOK
SC
ADV B M GILBERT
INSTRUCTED BY VASCO DE OLIVEIRA
ATTORNEYS
Unit 23C Sandton View Office Park
Conduit Street, Lyme Park, Sandton
Tel: 011 326 2505
Ref: V de Oliveira
COUNSEL FOR RESPONDENTS PAUL KENNEDY
SC
HENNO VILJOEN
INSTRUCTED BY TABACKS ATTORNEYS
13 Eton Road
Parktown
Tel: 011 358 7700
Ref: B Tate / JT
DATE OF HEARING 16 October 2014
DATE OF JUDGMENT 30 October 2014