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[2008] ZAWCHC 302
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Nema v National Education, Health & Allied Workers Union (19386/2008) [2008] ZAWCHC 302 (21 November 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOO HOPE PROVINCIAL DIVISION)
CASE NO
:
19386/2008
DATE
:
21
NOVEMBER 2008
In
the matter between:
LUYANDA
NEMA
APPLICANT
and
NATIONAL
EDUCATION, HEALTH &
RESPONDENT
ALLIED
WORKERS UNION
JUDGMENT
DAVIS,
J
:
[1]
This is an urgent application that has been brought by a group o*
shop stewards represented by Luyanda Nema. They are thop stewards
of
the respondent union, that is the National Education, Health and
Allied Workers Union, ("NEHAWLT).
[2]
The basis of the relief sought is for an interim interdict uplifting
the allegedly unconstitutional suspension of regional officer-bearers
from the iKapa Metropole region and, furthermore, to declare the
Provincial Congress of Respondent which is scheduled to take place
on
23 and 24 November 2008 to be invalid, both because it is in breach
of the constitution and of the NEHAWU constitution (clause
45).
Furthermore, relief is sought that the congress be rescheduled and
that further resolutions of the regional executive committee
meeting
on 27 May 2008 be upheld.
[3]
The applicants have appeared in person. Respondent is represented by
counsel. He informed me, quite properly, that his clients
have only
received these documents at 15:22 as at yesterday. He has not been in
a position to consult clients and first asked that
the matter stand
down until 2 o'clock. The difficulty is that, within two and a half
hours, it is hardly likely that counsel is
going to be able to
consult with his clients and ensure the deposition of an adequate
affidavit and then provide the applicants
with an opportunity to
answer, if necessary.
[4]
Initially, consideration was given by this Court that perhaps the
matter could stand down until later today for hearing by this
Court
or tomorrow to be heard by the duty judge. I am anxious not to slam
the door on applicants who come to this Court for relief.
Clearly,
when one examines the affidavit deposed to on behalf of the
applicants together with the attachments which include minutes
of the
meeting on 27 May and a memorandum on 23 September 2008 dealing with
an urgent request for immediate intervention on the
state of the
respondent in the Western Cape, it is clear that there are serious
allegations of severe problems with the union By
their very nature,
unions are a central arm of the democratic component of South African
society and have played a hugely significant
and proud role in
ensuring that our society has attained the state of democracy in 1994
and on which journey the country now proceeds.
[5]
Accordingly, dedicated applicants who are part of such a union are
entitled (1) to be heard and (2) to come to court to hold
their union
accountable to democratic principles. I also have to balance the
interests of the respondent, namely to reply to allegations
that have
been made and to ensure that after careful consideration of any
evidence, that a proper order be granted. The order which
has been
sought to stay the congress has been launched but two days ago. It is
correct that the difficulties relating to the congress
have been
circulating for a couple of months, if the papers are any guide
thereto.
[6]
Interim relief is only granted, where, in effect, there is no
alternative remedy which is available, it is precisely because
there
is an obvious alternative remedy which is prefigured in the very
notice of motion that I am constrained to follow
the
following course of action. The applicants, in effect, want certain
office-bearers to be brought back within the framework
of the
respondent and therefore for their alfegedfy unconstitutional
suspension to be uplifted. They ask for a declaration that
the
congress is invalid because it is in conflict with both the
provisions of the Constitution and respondent's own constitution.
[7]
These are questions that do not have to be decided today or tomorrow
or before the congress. The respondent runs the risk of
conducting
its congress in such a way that the applicants can come back to this
court and argue on proper evidence, duly supplemented
papers, to show
that any resolution at that congress is invalid, of no force and
effect, that any suspension is invalid and of
no force and effect.
When one is dealing with issues of *his importance, it seems to me to
be imprudent to charge into granting
of relief on the basis of a case
which is not substantiated, nor when one has not had the opportunity
of hearing respondent.
[8]
Accordingly, I am not going to dismiss this application I am going to
postpone the application and am going to order that the
applicants
are entitled to come back to this Court on papers duly supplemented
if they wish for the same relief that they have
asked for, that is it
in terms that everybody in this court will understand, that the
applicant is free to approach this Court
on its papers and further
papers for relief which would include the upliftment of a
unconstitutional suspension of regional office-bearers
and a
declaration that the congress which may take place be declared
invalid. In effect, what that means is respondent runs the
risk of
running its congress knowing full well that such an application looms
over the congress. There is no order as to costs.
DAVIS,
J