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[2008] ZAWCHC 261
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Public and Allied Workers Union of South Africa v George and Others (14292/2008) [2008] ZAWCHC 261 (5 September 2008)
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISIONS)
CASE NO
: 14292/2008
DATE
: 5
SEPTEMBER 2008
In the matter between:
THE PUBLIC AND ALLIED WORKERS
UNION OF SOUTH AFRICA APPLICANT
and
1. WESLEY GEORGE
1
st
RESPONDENT
2. ALLiSTAIR CHARLES 2
nd
RESPONDENT
3. BART SIMMERS 3
rd
RESPONDENT
4. V B VUSO 4
th
RESPONDENT
JUDGMENT
FOURIE, J
:
This application has been brought as a matter of urgency by The Public and
Allied Workers Union of South Africa, to which I will hereinafter
refer as "the
Union", seeking interim interdictory relief against three members of its
National Executive Committee.
I have come to a firm conclusion as to the order which I should make and
in view of the fact that I am sitting in Third Division
and there is still
another matter that I have to hear, I intend only briefly stating my reasons for
the order that I intend to make.
The Union is a legal person and its rights and powers are as set out in
its constitution. It can only act through its structures as
defined in terms of
the constitution. In my view those persons purporting to act on behalf of the
Union have failed to establish
that they have been duly authorised to bring this
application. There is no resolution on the papers before me to show that the
Union
has validly authorised the bringing of this application. There is also no
valid resolution authorising the deponents to the founding
affidavits to bring
the application. In addition, even if there were such resolutions, it does not
appear that the Union, and in
particular its National Executive Council, took a
legally binding decision to suspend the three respondents and to bring these
proceedings.
The reason for this is that in terms of the constitution, the NEC
consists of 11 members, i.e. the president, the vice-president
and nine
provincial representatives, and a quorum for any decision taken by the NEC Is,
in terms of clause 19.5.1 of the constitution,
50% plus one, which would in the
circumstances be at least six NEC members. It is clear from the founding papers
that only five members
of the NEC were present when it resolved to suspend
respondents and to take steps against them.
It therefore follows, in view of the provisions of the constitution, that
any such decision taken by these persons would have been
without any force or
effect.
In the circumstances the application cannot succeed and therefore I am not
inclined to postpone the matter for further hearing in
due course. It also
follows that interim relief ought not to be granted.
En the result, the application is
DISMISSEO
and the deponents to
the founding affidavits are ordered to pay respondents' costs.
FOURIE, J