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National Union of Metalworkers of South Africa and Others v Ntlokose (JA84/2022) [2023] ZALAC 32; [2024] 3 BLLR 260 (LAC); (2024) 45 ILJ 495 (SCA) (28 November 2023)

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Labour Law
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Brief Summary

Labour Law — Trade Union Constitution — Validity of Precautionary Suspensions — The respondent, a member of the National Union of Metalworkers of South Africa (NUMSA), challenged the validity of her precautionary suspension and the suspension of other members, as well as the decision to place the Mpumalanga Region under administration, arguing these actions were ultra vires the NUMSA constitution. The Labour Appeal Court was tasked with determining whether the NUMSA constitution permitted such suspensions and administrative actions. The Court held that the Central Committee had the authority to impose precautionary suspensions and administer regions in accordance with the constitution, thereby validating the decisions made by NUMSA.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an appeal in the Labour Appeal Court concerning the validity, under the constitution of a trade union, of several organisational decisions taken in the period immediately preceding the union’s scheduled National Congress. The litigation was framed primarily as a legality and constitutional-compliance challenge to internal union decisions, with the decisive issues turning on the proper interpretation of the union constitution.


The appellants were The National Union of Metalworkers of South Africa (NUMSA), Irvin Jim N.O., and the Chairperson of the NUMSA Special Central Committee N.O. The respondent was Ruth Ntlokose, who at the time held the position of Second Deputy President of NUMSA.


The procedural history was that the respondent launched urgent proceedings in the Labour Court challenging (i) her own suspension and the suspensions of other members pending disciplinary action, (ii) the placement of NUMSA’s Mpumalanga Region under administration, and (iii) the accreditation of delegates for NUMSA’s forthcoming National Congress (scheduled for 25 to 29 July 2022). The Labour Court (Moshoana J) upheld the application and, in a judgment delivered on 23 July 2022, declared the impugned decisions invalid and interdicted NUMSA from proceeding with the Congress “until it complied with the terms of its constitution”. The appellants appealed with leave to the Labour Appeal Court.


The general subject-matter of the dispute concerned union governance, the distribution of powers among NUMSA’s constitutional structures (particularly the Central Committee, National Executive Committee, and Regional Executive Committees), and the legality of precautionary suspension, administration of regions, and delegate accreditation processes in the run-up to a national congress.


2. Material Facts


The facts material to the appeal were substantially common cause and were treated as such by the Court. The disputes were therefore primarily disputes of interpretation and validity, not disputes turning on contested evidentiary versions.


NUMSA’s constitution established a set of governance structures relevant to the dispute. The Central Committee was described as the highest decision-making body between National Congresses and had broad oversight and review powers. The National Executive Committee conducted NUMSA’s business between Central Committee meetings and, on the constitutional text relied upon in the litigation, had a power to suspend an office bearer or official on sufficient cause “until the matter is decided at the next meeting of the Central Committee”. The Regional Executive Committees had powers in relation to regional governance, including a power to suspend a shop steward on sufficient cause and take over management of their affairs.


Chronologically, the respondent was served on 14 July 2022 with a notice stating that the Central Committee had decided at a meeting of 11 and 12 July 2022 to suspend her with immediate effect pending a disciplinary hearing. The notice linked the suspension to her having contested for a leadership position in SAFTU contrary to NUMSA’s position, and it referred to the possibility of further allegations arising from ongoing investigations.


At the same Central Committee meeting, NUMSA resolved to suspend certain other members alleged to have been involved in disruption at SAFTU’s congress, and to bar them from attending NUMSA’s scheduled National Congress. Separately, on 6 April 2022, the National Executive Committee had placed five of those members on precautionary suspension, purportedly under a constitutional clause enabling it to suspend an office bearer or official on sufficient cause until the next Central Committee meeting; their disciplinary hearing (before a part-time CCMA commissioner) had commenced but was not finalised at the time relevant to the Labour Court proceedings. Other members were placed on precautionary suspension by various Regional Executive Committees, purportedly under a clause empowering a Regional Executive Committee to suspend a shop steward on sufficient cause shown and to take over management of their affairs; those suspensions likewise remained in place pending unresolved disciplinary processes.


The Central Committee also resolved to place NUMSA’s Mpumalanga Region under administration for 12 months and to prohibit it from attending the National Congress. NUMSA’s explanation (which was not materially disputed by the respondent, save for the asserted lack of constitutional power) was that the region had been unable to convene two consecutive Regional Congresses, its leadership was hotly contested, internal disputes had left it in a chaotic state, and local shop steward councils were defunct and under administration, requiring intervention.


Finally, it was common cause that the Central Committee failed to appoint an Accreditation (Credentials) Committee as required by the constitution and instead performed the accreditation of delegates itself. NUMSA did not advance a substantive reason for not appointing the committee, beyond asserting that it could perform the function itself if a committee had not been appointed.


3. Legal Issues


The central legal questions were whether, on a proper construction of the NUMSA constitution, the following decisions were intra vires or ultra vires.


First, whether the constitution empowered the Central Committee to place a national office bearer (the respondent) on precautionary suspension pending disciplinary proceedings, and more generally whether and how the constitution provided for precautionary suspensions distinct from punitive suspensions imposed as a sanction after a finding of misconduct.


Second, whether the constitution empowered the relevant structures (the National Executive Committee and Regional Executive Committees) to place other members on precautionary suspension, and whether the suspensions challenged were taken by structures with competence to do so.


Third, whether the constitution empowered the Central Committee to place the Mpumalanga Region under administration (including in circumstances where the Regional Congress had not suspended the Regional Executive Committee), and whether an implied power arose to address dysfunction where regional structures could not operate.


Fourth, whether the Central Committee could lawfully perform the accreditation of delegates itself despite the constitution’s requirement that an Accreditation/Credentials Committee be appointed, and what the consequence was for the lawfulness of proceeding with the National Congress.


The dispute largely concerned questions of law, in the sense of interpreting and applying the union constitution as a legally binding instrument, together with the application of law to largely undisputed facts. Where “implied powers” or “implied terms” were invoked, the issues also involved an evaluative determination as to whether an implication was necessary and consistent with the express terms and scheme of the constitution.


4. Court’s Reasoning


The Court treated as foundational the legal character of a trade union constitution. It accepted, following Constitutional Court authority, that a union constitution is a form of contractual instrument binding the union and its members, to be interpreted according to the ordinary principles of contractual interpretation. It therefore approached the meaning of the relevant constitutional clauses through established interpretive methods, including attention to text, context, and purpose, and it rejected the proposition that a trade union constitution should be approached on a fundamentally different interpretive basis from contracts generally.


In applying these interpretive principles, the Court drew a distinction between punitive suspension (as a sanction following a completed disciplinary process) and precautionary suspension (as an interim measure pending a decision or pending completion of processes). It reasoned that certain constitutional clauses, on their wording, clearly contemplated suspension “on sufficient cause” pending a later decision by a higher structure, which the Court regarded as conceptually consistent with precautionary rather than punitive suspension. On that basis, the Court concluded that the constitution did, contrary to the respondent’s contention and the Labour Court’s approach, provide for precautionary suspension in at least some contexts, notably within the powers of the National Executive Committee and Regional Executive Committees.


However, the Court separated that conclusion from the specific question of who could exercise the power, and in what circumstances. In respect of the respondent’s suspension, the Court accepted that the constitution vested a power of precautionary suspension in the National Executive Committee (in relation to national office bearers or officials) but found that the respondent had not been suspended by that structure. She had been suspended by the Central Committee, which asserted authority to do so primarily on the basis of broad “best interests” powers and historical practice.


The Court rejected the argument that past practice, standing alone, established that the Central Committee had an implied power to suspend members whenever it wished, or that it could assume the powers of subsidiary structures at its discretion. It applied the legal test for implying a term into a contract, emphasising that such an implication must be necessary and must co-exist with, rather than contradict, the instrument’s express provisions and scheme. The Court reasoned that an implied power allowing the Central Committee to exercise the powers assigned to other structures “at its whim” would conflict with the constitution’s express allocation of responsibilities and with the Central Committee’s role as a superior body with review/appeal functions. Although the Court accepted that there may be circumstances where a higher structure could perform a function when the designated structure is unable to do so, it found that this was not demonstrated as the basis for the respondent’s suspension. The respondent’s suspension by the Central Committee was therefore held to be invalid for want of constitutional authority.


By contrast, the Court held that the suspensions of the other members were valid because they were imposed by the National Executive Committee or the relevant Regional Executive Committees, which the Court interpreted as having constitutional competence to impose precautionary suspensions on sufficient cause pending further processes. The Court considered that construing the constitution as excluding precautionary suspension would yield anomalous consequences for union governance, but it grounded its conclusion in the language and structure of the identified clauses rather than a free-standing policy preference.


In relation to placing the Mpumalanga Region under administration, the Court recognised that a clause empowered the Central Committee to take over the management of a region where a Regional Executive Committee had been suspended by a Regional Congress. The respondent’s argument was that this jurisdictional fact had not occurred and that the Central Committee therefore acted prematurely. The Court nevertheless reasoned that the region’s inability over an extended period to convene Regional Congresses rendered it dysfunctional, and that a reasonable construction of the Central Committee’s “do all lawful things to promote the interests of the Union” power implied an ability to intervene in such a crisis notwithstanding the absence of the usual triggering step. The Court therefore held that, in these circumstances, the Central Committee acted within its mandate in taking control of the region’s affairs.


On delegate accreditation, the Court returned to the principle that the Central Committee was bound to act within the four corners of the constitution and could not simply take over a function the constitution assigned to another body, even if that body was a sub-committee rather than a fully independent structure. It treated the constitutional injunction to appoint an Accreditation/Credentials Committee, and the rule that only delegates accredited by that committee could vote, as unambiguous. It held that the Central Committee’s failure to appoint the committee and its decision to accredit delegates itself were ultra vires and invalid. Given the constitutional linkage between proper accreditation and entitlement to vote at the National Congress, the Court considered this defect sufficient to justify the Labour Court’s interdict preventing the Congress from proceeding until compliance with the constitution was achieved.


On costs, the Court considered that both sides enjoyed partial success on appeal. It therefore concluded that fairness required each party to bear its own costs in the appeal, and it did not disturb the costs approach reflected in the substituted Labour Court order.


5. Outcome and Relief


The appeal succeeded only in part. The Labour Appeal Court upheld the invalidity of the respondent’s suspension by the Central Committee and upheld the invalidity of the Central Committee’s accreditation of delegates in place of an Accreditation/Credentials Committee. The effect was that the impediment to proceeding with the National Congress, as ordered by the Labour Court, remained justified on the accreditation ground.


However, the Court overturned the Labour Court’s conclusions to the extent that the Labour Court had treated the suspensions of the other members as invalid, and to the extent that it had treated the placement of the Mpumalanga Region under administration as constitutionally impermissible. The Labour Appeal Court held those measures to be valid under the constitution as properly interpreted.


In its formal order, the Court set aside paragraph 2 of the Labour Court’s order and substituted it with a declaration that the respondent’s suspension was invalid and unenforceable and that the accreditation of delegates for the scheduled Congress was ultra vires and invalid, together with an order of no costs in relation to that part. It further ordered that each party bear its own costs on appeal.


Cases Cited


University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13; 2021 (6) SA 1 (CC).


National Union of Metalworkers of South Africa v Lufil Packaging (Isithebe) and Others [2020] ZACC 7; 2020 (6) BCLR 725 (CC).


Natal Pension Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA).


Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A).


City of Cape Town (CMC Administration) v Bourbon-Leftley and Another NNO [2005] ZASCA 75; 2006 (3) SA 488 (SCA).


Legislation Cited


Constitution of the Republic of South Africa, 1996.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Labour Appeal Court held that the NUMSA constitution is to be interpreted as a contractual instrument in accordance with ordinary interpretive principles, and that it does provide for precautionary suspension in terms of clauses empowering the National Executive Committee and Regional Executive Committees to suspend on sufficient cause pending later determination.


The Court held that the respondent’s suspension was invalid because it was imposed by the Central Committee, which lacked either express or properly implied constitutional authority to suspend a national office bearer in circumstances where the constitution allocated that function to another structure competent to act. The Court rejected the contention that historical practice and broad “best interests” language entitled the Central Committee to assume the suspension powers of other structures at will.


The Court held that the suspensions of the other members were valid because they were imposed by the National Executive Committee and relevant Regional Executive Committees under clauses that, properly construed, contemplated suspension on sufficient cause as an interim measure.


The Court held that the Central Committee acted within its constitutional mandate in assuming control of the Mpumalanga Region’s affairs in circumstances of prolonged dysfunction preventing the ordinary regional governance steps from being taken.


The Court held that the Central Committee acted ultra vires by failing to appoint an Accreditation/Credentials Committee and accrediting delegates itself, contrary to the constitution’s requirements. This invalidity supported the interdict preventing the National Congress from proceeding until constitutional compliance.


LEGAL PRINCIPLES


A trade union constitution constitutes the binding agreement between the union and its members and must be interpreted using ordinary principles of contractual interpretation, including consideration of text, context, and purpose, and preference for a sensible meaning consistent with the instrument’s apparent purpose.


Where a party contends for an implied term or implied power in a contractual instrument, the implication is permissible only if it is necessary on a reasonable and business-like reading of the instrument and admissible surrounding circumstances, and only if it can co-exist with (and does not contradict) the instrument’s express provisions and structural scheme.


Provisions empowering suspension “on sufficient cause” pending later determination may, depending on context and structure, be construed as authorising precautionary suspension, distinct from punitive suspension imposed only after the completion of disciplinary proceedings.


A superior governance structure within an association (such as a Central Committee) remains bound by the constitution’s allocation of powers and may not, merely by reliance on broad “best interests” language or historical practice, arrogate to itself functions assigned to other designated structures, unless the constitution properly supports such an implication and the circumstances justify it in a manner consistent with the constitutional scheme.


Where a constitution requires an Accreditation/Credentials Committee to accredit delegates, and links voting entitlement to accreditation by that committee, a failure to follow that constitutionally prescribed process renders the accreditation defective and can justify preventing a congress from proceeding until the constitution is complied with.

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[2023] ZALAC 32
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National Union of Metalworkers of South Africa and Others v Ntlokose (JA84/2022) [2023] ZALAC 32; [2024] 3 BLLR 260 (LAC); (2024) 45 ILJ 495 (SCA) (28 November 2023)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA84/2022
In the matter between:
THE NATIONAL UNION
OF METALWORKERS OF SOUTH AFRICA
First
Appellant
IRVIN
JIM N.O.
Second
Appellant
CHAIRPERSON
OF THE NUMSA SPECIAL CENTRAL COMMITTEE N.O.
Third
Appellant
And
RUTH
NTLOKOSE
Respondent
Heard: 29 August 2023
Judgment: 28 November
2023
Coram: Mlambo JA;
Davis JA and Smith AJA
JUDGMENT
SMITH AJA
Introduction
[1]  This appeal
concerns the validity of (a) the suspensions of the respondent and
certain other members of the first appellant,
the National Union of
Metal Workers of SA (NUMSA) pending the finalisation of disciplinary
proceedings (precautionary suspensions);
(b) the decision taken by
NUMSA’s Central Committee to place its Mpumalanga Region under
administration; and (c) the accreditation
of delegates to NUMSA’s
National Congress, which was scheduled for 25 to 29 July 2022.
[2]  The respondent
launched urgent proceedings in the Court
a quo
challenging the
validity of those decisions on the ground that they were
ultra
vires
the NUMSA constitution and seeking an order prohibiting
NUMSA from proceeding with its scheduled National Congress. In
addition,
she also sought an order declaring her, the other suspended
members, and delegates from the Mpumalanga Region, entitled to attend

and participate in the National Congress. The matter was heard by
Moshoana J, who upheld her application and, in his judgment

delivered on 23 July 2022, declared the impugned decisions invalid
and interdicted NUMSA from proceeding with its National Congress,

“
until it complied with the terms of its constitution
”.
[3]  The appellants
appeal against that order with the leave of this Court. They contend
that NUMSA’s constitution, reasonably
construed, empowers its
Central Committee, National Executive Committee and Regional
Committees, respectively, to place members
or officials on
precautionary suspension pending the finalisation of disciplinary
proceedings. They assert, furthermore, that the
NUMSA constitution
also permits the Central Committee, in appropriate circumstances, to
take over the administration of any of
NUMSA’s regions and to
perform the accreditation of delegates to its National Congress. On
their construction of the NUMSA
constitution, it sanctioned the
impugned decisions and they are thus valid and binding. They also
maintain that Moshoana J failed
to apply the conventional canons of
interpretation pertinent to the construction of a trade union’s
constitution. According
to them, the resultant flawed interpretation
of the relevant constitutional provisions has far-reaching and
incongruous consequences
for NUMSA.
NUMSA’s
constitutional structures
[4]  The issues that
fall for decision on appeal require an understanding of the powers
and functions of NUMSA’s various
constitutional structures. It
will therefore be instructive for me to explain, upfront, the
respective constitutional hierarchies
of those structures and how
they relate to one another. And, to avoid confusion, I refer to the
relevant structures by their full
constitutional designations instead
of acronyms.
[5]  The Central
Committee is NUMSA’s highest decision-making body between
National Congresses, which are held every
four years. That committee
consists of six National Office Bearers, four Regional Office Bearers
and one worker delegate from each
of NUMSA’s nine regions.
[6]  The National
Executive Committee is a smaller structure that conducts NUMSA’s
business between meetings of the Central
Committee. Its duties
include the implementation of policies and decisions adopted by the
Central Committee, and in terms of the
constitution, it may suspend
any NUMSA office bearer or official pending decision by the Central
Committee.
[7]  Regional
Congresses control regional affairs, subject to the direction of the
Central Committee and the National Congress.
Delegations to the
Regional Congress consist of shop stewards elected by Local Shop
Steward Councils and Regional Office Bearers.
A Regional Congress has
the power to suspend a Regional Executive Committee ‘for
neglect of duty and conduct contrary to
or in conflict with’
the constitution, decisions of the National Congress, Central
Committee, or a Regional Congress.
[8]  Regional
Executive Committees consist of office bearers of the Regional
Congress, the Local Shop Steward Council, and
members of the Regional
Finance Committees. A Regional Executive Committee has the power,
inter alia
, to suspend any shop steward or Shop Steward
Committee on ‘sufficient cause shown’ and to take over
the management
of their affairs until another shop steward or council
has been elected.
[9]  The shop
stewards in a ‘Local’ constitute the Local Shop Steward
Council, which is responsible for electing
delegates to the Regional
Congress every four years. In terms of clause (6)(1)(c) of the NUMSA
constitution, “
each Local may elect one shop steward per 300
members as a delegate at the Congress
”.
The facts
[10] The facts pertinent
to the adjudication of the disputes between the parties are common
cause. They are briefly as follows.
[11] On 14 July 2022, the
respondent, in her capacity as NUMSA’s Second Deputy President,
was served with a notice suspending
her, pending the outcome of a
disciplinary hearing. That notice, composed by the second appellant,
stated that NUMSA’s Central
Committee had decided, at a meeting
held on 11 and 12 July 2022, to suspend her “
with immediate
effect and that the necessary disciplinary process must be followed
by the organization
”. The reason for the suspension being
that she had “
stood and contested the position of the
Presidency of SAFTU against the NUMSA position to support the name of
Mac Chavala
...” The notice further stated that, depending
on the outcome of the further investigations into remaining issues,
she could
potentially also face a hearing into “
allegations
emanating from these further issues
”.
[12] At the same meeting,
the Central Committee also resolved to suspend other members “
who
were part of disrupting the SAFTU 2
nd
National Congress
” and to bar them from attending the
scheduled National Congress. The names of the affected members are
listed in an annexure
to the respondent’s founding affidavit.
[13] The National
Executive Committee had also, on 6 April 2022, placed five of the
listed members on precautionary suspension,
purportedly in terms of
clause 6(3)(c)(v) of the constitution. That clause provides that the
latter may suspend any office bearer
or official of the Union on
sufficient cause until the matter is decided at the next meeting of
the Central Committee. Their joint
disciplinary hearing commenced
before a part-time CCMA commissioner and had, at the time of deposing
to the answering affidavit,
not yet been finalised.
[14] The others were
placed on precautionary suspension by the Hlanganani, Sedibeng and
Mpumalanga Regional Executive Committees,
respectively, in terms of
clause 5(3)(e)(v) of the constitution. The latter clause empowers
those committees “
to suspend any shop steward on sufficient
cause shown and take over management of their affairs
”. The
Central Committee did not disturb that decision, and at the time of
the launching of the application, disciplinary
hearings had not yet
been finalised.
[15] The Central
Committee also resolved to place the Mpumalanga Region under
administration for a period of 12 months and to prohibit
it from
attending the National Congress. NUMSA asserted that the region had
not been able to convene two consecutive Regional Congress
and the
Local and Regional leaders therefore did not represent the will of
the region. The region is also riven by internal disputes
and the
leadership is ‘hotly contested’. It is consequently in a
chaotic state, to the detriment of its ordinary members.
The Local
Shop Steward Councils are also defunct and under administration. The
Central Committee was thus constrained to intervene
in the best
interests of the union. Apart from challenging the assertion that the
NUMSA constitution permitted the Central Committee
to intervene in
this manner, the respondent did not dispute these averments.
[16] It is also common
cause that the Central Committee failed to appoint an Accreditation
Committee as it was enjoined to do in
terms of the constitution, and
instead decided to do the accreditation of delegates to the National
Congress itself. NUMSA did
not provide any reasons for this omission,
save to assert that it could also perform that task itself, in the
event that an Accreditation
Committee has not been appointed.
Legal nature of a
trade union constitution
[17] Central to the
determination of the issues that fall for decision on appeal are the
questions of whether the NUMSA constitution,
reasonably construed,
permits the precautionary suspension of members or officials and
vests in the Central Committee's discretion
to exercise the powers of
other subsidiary committees, regardless of whether the latter may be
able to exercise those powers themselves.
The adjudication of these
questions will largely depend on the construction of the relevant
constitutional provisions and it therefore
makes sense to
contemplate, as a starting point, the legal nature of a trade union’s
constitution as well as the canons of
interpretation applicable to
its construction.
[18]
Ms
Engelbrecht, who appeared together with Mr Meyerowitz for NUMSA,
submitted that its constitution, being a contract between it
and the
individual members, must be construed in terms of the same principles
applicable to the construction of contracts. She
argued that the
Court must therefore construe the relevant clauses by having regard
to their text, context, purpose and, in terms
of the principles
enunciated by the Constitutional Court in
University
of Johannesburg v Auckland Park Theological Seminary and Another
[1]
(
University
of Johannesburg
)
in addition to extra-textual evidence regarding the conduct of the
parties. The extra-textual evidence which in Ms Engelbrecht’s

submission should be considered is NUMSA’s assertions that both
the Central Committee (since 1992) and the National Executive
Council
(since 2016) have regularly placed members on precautionary
suspension. The former has also regularly placed regions under

administration since 2010. She argued that those structures
consequently have implied powers to place members on precautionary

suspension in appropriate circumstances.
[19]
Mr Nhlapo,
on behalf of the respondent, contended for a more literal
construction, namely that words must be given their ordinary

grammatical meaning unless it will result in an absurdity. He
submitted that for the Court to read the contended implied term into

the constitution would effectively amount to an impermissible
amendment thereof. For this submission, he relied on a comment by

Moshoana J to the effect that, “
[a]
member of a trade union joins a trade union and does not conclude a
contract with a trade union. Thus, it cannot be said that
a member is
a party to a contract as it were. In my view, it is difficult to
employ the language of “implied terms”
in a constitution
as if it is a commercial contract
”.
[2]
Mr Nhlapo submitted, furthermore, that the main purpose of a trade
union’s constitution is to give effect to the right to
freedom
of association. The construction contended for by the appellants will
undermine this objective since it will not advance
the interests of
the members or the democratic functioning of the union, or so he
argued.
[20]
The
Constitutional Court has authoritatively settled the polemic
regarding the legal nature of a trade union’s constitution
in
National
Union of Metalworkers of SA v Lufil Packaging (Isithebe) and
Others
.
[3]
[21] NUMSA had in that
case also asserted that its constitution is a contract between it and
its members. The Court agreed with
that assertion, and at paragraph
[53], said the following:
‘
NUMSA has adopted
a constitution which is clear in its terms. It is a voluntary
association with rules and annexures that collectively
forms the
agreement entered into with its members. The constitution must be
interpreted in accordance with the ordinary rules of
construction
applying to contracts in general. The classic interpretative
principle is that effect must be given to the ordinary
language of
the document, objectively ascertained within its context. It must
follow therefore that in the course of interpretation,
preference
should be given to a sensible meaning rather than “one that
leads to insensible or un-businesslike results or
undermines the
apparent purpose of the document”.’
[22]
The
relevant clauses must therefore be interpreted in accordance with the
principles set out in
Natal
Pension Joint Municipal Pension Fund v Endumeni Municipality
[4]
and
University
of Johannesburg.
In
the latter case, the Constitutional Court held that Courts
interpreting a contract must have regard to its factual matrix, its

purpose, the circumstances leading up to its conclusion, and the
knowledge of those who negotiated its terms.
Validity of the
respondent’s suspension
[23] Although the
respondent asserted a breach of her and the other affected members’
constitutional rights to fair labour
practices and freedom of
association, the main thrust of her case in the Court
a quo
was that all the impugned decisions were
ultra vires
the NUMSA
constitution.
[24] She contended that
her suspension was unlawful because the NUMSA constitution does not
empower the Central Committee to place
members on precautionary
suspension. For this contention, she relied on clause 8 of the
constitution, which provides that a national
office bearer accused of
misconduct may be disciplined by the National Executive Committee.
According to her, that clause provides
only for the disciplinary
procedures to be followed by the latter body and does not sanction
precautionary suspension.
[25] The appellants, on
the other hand, asserted that it is an established custom and
practice for NUMSA structures and committees
to place members on
precautionary suspension where circumstances demand such a drastic
measure and good cause had been established.
NUMSA has in fact been
placing members on precautionary suspension on that basis since its
formation, or so they contended.
[26]
They
argued, furthermore, that the NUMSA constitution, properly
interpreted, in any event, provides for members or officials to
be
placed on precautionary suspension in appropriate circumstances.
Although they conceded that clause 8 provides only for punitive

suspension, they asserted that clause 6(3)(c)(v) permits the National
Executive Committee to suspend any office bearer or official
on
sufficient cause until the matter is decided at the next meeting of
the Central Committee. That provision, they contended, can
only refer
to precautionary suspension. The Central Committee is a higher
structure than the National Executive Committee and is
vested with
the constitutional power to “
do
all things which in the opinion of the Central Committee promote the
interests of the Union and agree with the objects and policies
of the
Union and its Constitution
”.
[5]
There is therefore no reason why the Central Committee cannot
initiate the process of placing a member on precautionary suspension

instead of merely confirming such a decision of the National
Executive Committee.
[27] In declaring the
respondent’s suspension
ultra vires
the powers of the
Central Committee, Moshoana J found that the NUMSA constitution
explicitly and unambiguously vests the power
to suspend officials in
the National Executive Committee. He rejected the argument that the
Central Committee has implied power
to place members or officials on
precautionary suspension, reasoning that such an implied power would
conflict with the express
provisions of the NUMSA constitution. He
consequently found that the respondent’s suspension “
offends
the principle of legality and is invalid
”.
[28] Before us, the
appellants repeated the argument that clause 6(3)(c)(v) empowers the
National Executive Committee to place any
official or office bearer
on precautionary suspension pending the decision of the Central
Committee, and they contended that Regional
Executive Committees have
similar powers in terms of clause 5(3)(e)(v) “
to
suspend any shop steward on sufficient cause shown and take over
management of their affairs
”.
[29] According to the
appellants, the term ‘suspension’ mentioned in those
clauses is fundamentally and manifestly different
from the
suspensions envisaged in clauses 2(4), 8(2) and 8(3). The latter
clauses provide for suspension as a form of punishment
after the
conclusion of disciplinary proceedings. The suspensions mentioned in
the former clauses, however, clearly envisage suspension,
on good
cause shown, pending the finalisation of disciplinary proceedings; in
other words, precautionary suspension.
[30] They contended,
furthermore, that even though the NUMSA constitution does not
expressly permit the Central Committee to place
a member on
precautionary suspension, on a reasonable construction of the
relevant clauses, that power must be inferred because
it has the
power to: review any decision of any other constitutional structure;
confirm a precautionary suspension initiated by
the National
Executive Committee; and to perform all acts which would in its
opinion promote NUMSA’s best interests. The
Court
a quo’s
assumption that the Central Committee can only function as an
appeal body in respect of decisions taken by the National Executive

Committee can, as a matter of logic, only apply to punitive
suspensions, or so they contended.
[31] Mr Nhlapo took issue
with that contended construction. He argued that, on a reasonable
interpretation of the relevant clauses,
the Central Committee does
not have the power to place a member on precautionary suspension. The
powers to suspend as a punitive
measure are explicitly given to the
National or Regional Executive Committees, in terms of clauses 8 and
5, respectively. The NUMSA
constitution does not provide for any form
of precautionary suspension, and reading such an implied term into
the constitution
will require various consequential amendments to
other clauses in order for the constitution to make sense. The fact
that the NUMSA
constitution does not explicitly vest in the Central
Committee powers to suspend members is, on his submission, no
oversight, but
a deliberate constitutional scheme designed to ensure
that it will be able to perform its functions as an appeal body
optimally.
The implied term contended for by the appellants thus
fundamentally conflicts with the explicit provisions of the
constitution,
or so he argued.
[32] To my mind, the
assertion that the NUMSA constitution does not provide for
precautionary suspension is manifestly wrong. Construed
in accordance
with the abovementioned canons of interpretation, clause 6(3)(c)(v)
unambiguously vests in the National Executive
Committee power to
suspend any office bearer or official for ‘sufficient cause’
until the matter is decided at the
next meeting of the Central
Committee. Other than clause 8, which clearly provides for suspension
as a punitive measure after the
affected official or member had been
found guilty of misconduct, the former clause provides for suspension
pending a decision of
the Central Committee; hence for ‘precautionary
suspension’. Likewise, clause 5(3)(e)(v) provides that a
Regional Executive
Committee may suspend shop stewards or a Shop
Steward Committee “
on sufficient cause shown and take over
the management of their affairs until another shop steward or
committee is elected
”.
[33] The reference to
‘good’ or ‘sufficient cause’ in those clauses
is a further factor that compels the
inference that they provide for
precautionary suspension. Our Courts have consistently interpreted
the latter terms to mean “
adequate or substantial reasons
for a decision or act
”. In the context of the
abovementioned clauses, it connotes a lower standard of proof than
that required in disciplinary
proceedings. And even if, as Mr Nhlapo
submitted, the phrase “
until another shop steward or
committee is elected
” must be read as connoting permanent
suspension, the maxim
qui potest plus, potest minus
(the
greater includes the lesser) is apposite in these circumstances. It
simply does not make any sense to interpret the constitution
as
according the Regional Executive Committee extensive powers to
suspend a shop steward permanently, on good cause shown, but
not as
an interlocutory measure, which is manifestly the less severe
measure.
[34] There can be little
doubt that the construction contended for by the respondent will have
anomalous consequences for NUMSA
and will serve to undermine the
purpose of its constitution. It will, for instance, mean that it is
powerless to suspend a member
or official who has been charged with
serious misconduct and whose continued presence at its offices, or
involvement in organisational
structures, may undermine the smooth
functioning of the organisation, or bring it into disrepute. To my
mind, the power to suspend
a member or official on ‘good cause
shown’, pending the finalisation of disciplinary proceedings,
must therefore be
implicit in the disciplinary authority vested in
the respective structures. Such a construction makes ‘business
sense’
and will serve to avoid the anomalous consequences
mentioned above.
[35] The respondent’s
suspension is, however, on a different footing altogether. She was
not suspended by the National Executive
Committee — which on my
construction of clause 6 has the sole power to suspend national
office bearers — but by the
Central Committee, which claims
authority to do so on the basis of implied powers. It is significant
that other than in the case
of its decision to place the Mpumalanga
region under administration, the Central Committee has not bothered
to provide any justification
for its decision to exercise the power
to suspend the respondent. It has relied only on its asserted implied
authority and claims
that it has, over the years, placed members on
precautionary suspension. The appellants’ contention, that this
evidence of
past conduct justifies the inference that the Central
Committee has implied powers to assume the responsibilities of any
other
constitutional subsidiary structure at its discretion, cannot
be upheld.
[36]
Such an
implied term can only be imputed into a contract if the Court is
satisfied that “
upon
a consideration in a reasonable and business-like manner of the terms
of the contract and the admissible evidence of surrounding

circumstances, an implication necessarily arises that the parties
intended to contract on the basis of the suggested term
”.
Put differently, a term can only be implied if it can be confidently
said that the contracting parties, with reference
to the specific
event, would have promptly and unequivocally asserted the existence
of the contended term.
[6]
[37] I am of the view
that the implied term contended for by appellants, namely that the
Central Committee has discretion to exercise
the powers of any of
NUMSA’s other constitutional structures at its whim, cannot
co-exist with the express provisions of
the constitution and can
accordingly not be read into it.
[38] The Central
Committee is effectively the highest appeal body for all decisions of
the National and Regional Executive Committees.
It is also the
highest constitutional structure during the interregnum between
National Congresses and has extensive powers to
review decisions of a
Regional Congress. However, the constitution is explicit in its
injunction that it must manage the affairs
of the union according to
the constitution and the rules and policies adopted by the National
Congress. The Central Committee is
thus also bound to act within the
four corners of the constitution. In suspending the respondent, the
Central Committee has, apparently
at its whim, decided to arrogate to
itself the powers specifically allocated to another constitutional
structure. It did so under
the guise of the constitutional provision
allowing it to “
do all lawful things which in its opinion
promotes the interests of the Union
”. That clause can,
however, not be construed to mean that the Central Committee has free
rein to arrogate to itself powers
of other constitutional structures,
even though those structures are in a position to exercise those
powers themselves.
[39] While it is arguable
that the Central Committee would be entitled to exercise any
constitutional function of a subsidiary structure
in circumstances
where that structure is for some reason unable to exercise the power
itself, on a reasonable construction of the
relevant constitutional
provisions, it is manifestly not allowed to do so at its whim.
[40] The appellants have
therefore failed to establish that the NUMSA constitution vests in
the Central Committee either explicit
or implied powers to place
members or officials on precautionary suspension in instances where
the relevant National or Regional
Executive Committees are able to
exercise those powers themselves.
The suspensions of the
other members
[41] While NUMSA has, in
its answering affidavit, challenged the respondent’s
locus
standi
to seek relief on behalf of the other suspended members,
it has abandoned the point on appeal. It is accordingly not necessary
for us to deal with the submissions advanced in the parties’
heads of argument regarding that issue.
[42] Regarding the
purported precautionary suspension of the other office bearers, the
respondent contended in the Court
a quo
that Chapter 5 of the
NUMSA constitution, which deals with Regional Structures, and in
particular clause 5(3)(e)(v), which provides
that a Regional
Executive Committee may suspend any shop steward or Shop Steward
Committee on ‘sufficient cause shown’,
provides for
suspension as a punitive measure, and not for precautionary
suspension.
[43] Moshoana J held that
in terms of Chapter 8 of the constitution, “
a person must be
charged, and the charge must be determined, and if an opinion is
formed that the charge has been satisfactorily
proven only then may a
member be suspended
”. The learned Judge reasoned that the
NUMSA constitution consequently only sanctions suspension as a form
of punishment and
not as a precautionary measure pending the
conclusion of disciplinary proceedings. The relevant NUMSA structures
therefore did
not have the power to place the other members on
precautionary suspension.
[44] My finding that the
NUMSA constitution empowers both the National Executive Committee and
Regional Executive Committees to
place members or officials on
precautionary suspension, is also dispositive of the respondent’s
challenge to the validity
of the other suspended members’
precautionary suspensions. Those members had in fact been suspended
by the constitutional
structures vested with the requisite powers to
suspend them pending finalisation of disciplinary hearings, namely
the National
Executive Committee and the respective Regional
Executive Committees. I am accordingly of the view that the
respondent has failed
to establish that those suspensions were
irregular and invalid.
The decision to place
the Mpumalanga Region under administration
[45] The respondent
challenged the Central Committee’s decision to place the
Mpumalanga Region under administration for a
period of 12 months and
barring it from attending the National Congress on the basis that it
was
ultra vires
the powers of the Central Committee. She
contended that that power vests in the Regional Congress in terms of
clause 5(2)(a)(vii)
of the constitution, which provides that the
Central Committee may take over the management of a region only after
the Regional
Congress has suspended its Regional Executive Committee.
She submitted that it is common cause that this did not happen, and
the
Central Committee’s actions were thus premature.
[46] She also contended
that the decision to bar the Mpumalanga Region from attending the
National Congress without any disciplinary
procedures having been
instituted and without exempting the ‘Locals’, which
consist of the elected shop stewards in
a workplace, violated the
NUMSA constitution.
[47]
NUMSA
asserted that the Central Committee placed the Mpumalanga Region
under administration pursuant to the powers vested in that
committee
in terms of Chapters 4 and 6 of the constitution. For this contention
it relied on constitutional clauses which provide
that the Central
Committee: (a) may overrule any decision of any local shop steward
council;
[7]
(b) may review any
decision of a Regional Committee, and to confirm, amend or reverse
such a decision;
[8]
(c) may
establish or close down regions and to define their areas of
jurisdiction;
[9]
and (d) it is
empowered to take over the management of the affairs any region where
a Regional Executive Committee has been suspended,
until such time as
another committee has been constitutionally elected.
[10]
[48] It argued,
furthermore, that the region’s suspension was necessary and
justified in the context of the abovementioned
circumstances. The
Central Committee’s decision to take over the administration of
that region was therefore a necessary
intervention in the best
interests of the organisation. In addition, the decision was also
endorsed by the region’s leadership
who attended the meeting.
[49] Moshoana J, however,
rejected the argument that the contended power is implicit in the
Central Committee’s constitutional
role and found that it had
no powers other than those explicitly stated in the constitution.
[50] Ms Engelbrecht SC,
submitted that on a proper construction, clause 6(2)(d)(iv), which
empowers the Central Committee to “
take over the management
of the affairs of any region where a Regional Executive Committee has
been suspended
”, also empowers the former to take over the
affairs of a region; in other words, to place it under
administration. The Court
a quo’s
finding that it can
only do so if a Regional Congress has suspended the Regional
Executive Committee is not consonant with the
overall scheme and
purpose of the NUMSA constitution. Such a construction means that the
Central Committee can only intervene to
regularise the affairs of a
region after a Regional Congress has been able to quorate and suspend
its Executive Committee
.
Ms Engelbrecht contended that it was
inconceivable that the Central Committee is not allowed to take over
the administration of
a region which has failed to muster a quorum to
convene two consecutive Regional Congresses, and has since become
dysfunctional,
[51] Mr Nhlapo argued
that the Central Committee has no powers under the constitution,
either explicitly or impliedly, to place
regions under administration
before a Regional Congress has suspended its Regional Executive
Committee. The constitutional dilemma
that could ensue in the event
of a region being unable to muster a quorum to convene a Regional
Congress may well require NUMSA
to consider amendments to its
constitution, but it would not be proper for the Court to read into
the constitution an implied term
that will effectively amend its
explicit provisions.
[52] I am of the view
that the appellants have provided compelling reasons for the Central
Committee’s decision to suspend
the Mpumalanga Regional
Committee and to take over its administration. Although clause
6(2)(d)(iv) of the constitution clearly
empowers the Central
Committee to take over the management of a region’s affairs
only after a Regional Executive Committee
has been suspended by the
Regional Congress, it is conceivable that circumstances may arise
that require the Central Committee
to intervene in NUMSA’s best
interests, despite the absence of that jurisdictional fact, in
particular where the absence
of such action could cause considerable
jeopardy to the union.
[53]
In this
case, the appellants explained that the region has, for a period of
two years, not been able to muster a sufficient quorum
to convene two
consecutive Regional Congresses. For all practical purposes, the
region has thus become dysfunctional. To my mind,
a reasonable
construction of clause 6 of the constitution must imply that in
circumstances such as these, the Central Committee
would have the
power to take over the administration of a region despite the fact
that its Executive Committee had not been suspended
by the Regional
Congress. These circumstances are, in my view, those envisaged in
terms of clause 6(2)(d)(xvi) of the constitution,
which requires the
Central Committee “
to
do all lawful things to promote the interests of the Union
”.
[11]
The construction contended for by the respondent will mean that NUMSA
would effectively be emasculated and without any constitutional

remedy to address a crisis that may threaten to destabilise the
entire organisation. I therefore respectfully disagree with the
Court
a quo’s
finding regarding this issue.
Accreditation of
delegates to the National Conference
[54] The respondent
challenged the validity of the accreditation process on the basis
that the Central Committee’s failure
to appoint a Credentials
Committee violated the NUMSA constitution. The latter was enjoined to
appoint the Accreditation Committee
in terms of clause 6(1)(c)(iii)
of the constitution and its decision to exercise that power itself,
was thus unconstitutional and
invalid. Clause 6(1)(c)(iv) provides
that only delegates accredited by the Credentials Committee shall be
entitled to vote at a
National Congress. The delegates to the
National Congress had therefore not been properly accredited and all
resolutions adopted
at the Congress would consequently be tainted
with invalidity, or so she asserted.
[55] The respondent, on
the other hand, contended that because the Accreditation Committee is
not a separate constitutional structure
but merely a sub-committee of
the Central Committee, the latter has residual powers to approve
credentials. The Central Committee
duly performed that function
during its special meeting on 5 May 2022.
[56] Moshoana J found
that the Central Committee’s failure to appoint an
Accreditation Committee and the arrogation of this
power to itself
were unconstitutional. The effect of these unconstitutional
aberrations was that the delegates had not been properly
accredited
and “
the planned congress is more likely to proceed along
unconstitutional lines
”. He consequently interdicted NUMSA
from proceeding with the scheduled National Congress.
[57] Regarding the
Central Committee’s entitlement to assume the functions of a
Credentials Committee, Ms Engelbrecht submitted
that since the latter
is not a constitutional structure, but merely a sub-committee, there
was nothing that stopped the Central
Committee from doing the
accreditation itself.
[58] Mr Nhlapo, on the
other hand, submitted that the constitution unambiguously enjoins the
Central Committee to appoint an Accreditation
Committee and only
delegates accredited by the latter are entitled to vote at a National
Congress. These unequivocal provisions
do not allow for a
construction that bestows upon the Central Committee a discretion
whether or not to appoint the committee or
to decide unilaterally to
do the accreditation itself, or so he argued.
[59] As mentioned, the
Central Committee is bound to act within the four corners of the
constitution and is not allowed, at its
whim, to arrogate to itself
powers specifically assigned to another constitutional structure. In
my view, the Central Committee’s
failure to appoint an
Accreditation Committee and its arrogation of those powers to itself,
also fall to be declared irregular
and invalid for the same reason.
Other than the bald averment that the Central Committee has residual
powers to do the accreditation
of delegates to a National Congress
itself, the appellants have not made any attempt to explain why the
performance of that function
was not left to the constitutionally
nominated structure. Clause 6(c)(iv) is unambiguous in its decree
that “
only delegates accredited by the Credentials Committee
shall be entitled to vote at a National Congress
”. The fact
that the delegates to the National Congress would not have been
properly accredited in terms of the constitution
was therefore
sufficient justification for the Court
a quo’s
decision
to interdict the holding of the scheduled National Congress until
such time as NUMSA has complied with its constitution.
Summary of findings
[60] In summary then, I
make the following findings:
60.1  The
respondent’s suspension by the Central Committee was not
affected in accordance with the NUMSA constitution
and is therefore
invalid and of no force or effect.
60.2  The
suspensions of the other members, listed in Annexure RN2 to the
respondent’s founding affidavit, were properly
done in
accordance with the NUMSA constitution and therefore valid and
binding.
60.3  The Central
Committee acted properly and in terms of its constitutional mandate
when it assumed control of the affairs
of NUMSA’s Mpumalanga
Region.
60.4  The Central
Committee has, in purporting to exercise the powers of an
Accreditation Committee, acted
ultra vires
the powers vested
in it by the NUMSA constitution.
The issue of costs
[61] Insofar as the issue
of costs is concerned, I am of the view that the costs order made by
the Court
a quo
should not be interfered with. On appeal, both
parties were partially successful. The appellants have established
that they acted
properly in suspending the other members and taking
over the Mpumalanga Region’s administration. The respondent, on
the other
hand, successfully opposed the appeal against the finding
regarding her own suspension and the order interdicting the National
Congress. Counsel have correctly conceded that it is only fair that
the parties should bear their own costs in respect of the appeal
as
well.
[62] In the result, the
appeal succeeds to the following extent:
Order
1. Paragraph 2 of the
court
a quo’s
order is set aside and replaced by the
following order:
‘
2.  It is
declared that:
(i) The suspension of
Ruth Ntlokose is unconstitutional, invalid, and unenforceable.
(ii)  The
accreditation of delegates to NUMSA’s General Congress
scheduled for 25 to 29 July 2022 was
ultra vires
the powers of
the Central Committee and thus unconstitutional and invalid.
(iii) There is no order
as to costs.’
2. The parties shall bear
their own costs in respect of the appeal.
Smith AJA
Mlambo
AJA and Davis AJA concur.
Appearances:
For Appellants:
Adv M Engelbrecht SC and Adv M. Meyerowitz
Instructed by: Serfontein
Viljoen & Swart
For the Respondent:
Adv SB Nhlapo
Instructed by: Kropman
Attorneys
[1]
[2021] ZACC 13
;
2021 (6) SA 1
(CC).
[2]
Paragraph
5 of the judgment on the application for leave to appeal.
[3]
[2020] ZACC 7;
2020
(6) BCLR 725 (CC).
[4]
[2012] ZASCA 13; 2012 (4) SA 593 (SCA).
[5]
Clause
6(2)(d)(xvi).
[6]
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974
(3) SA 506
(A) at 531H-533B; see also:
City
of Cape Town (CMC Administration) v Bourbon-Leftley and Another NNO
[2005]
ZASCA 75
;
2006
(3) SA 488
(SCA)
at
paras
19 - 20.
[7]
Clause
4(2)(vii)(b)(iv).
[8]
Clause
6(2)(d)(ii).
[9]
Clause
6(2)(d)(iii).
[10]
Clause
6(2)(d)(iv).
[11]
Clause
6(2)(d)(xvi).

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