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[2024] ZALCJHB 145
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Theledi v Police and Prisons Civil Rights Union and Others (J 395/2022) [2024] ZALCJHB 145 (27 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 395/2022
In
the matter between:
NKOSINATHI
THELEDI
Applicant
and
POLICE
AND PRISONS CIVIL RIGHTS UNION
First Respondent
ZIZAMELA
ERNST
MAKAZA
Second Respondent
MBONGENI
JEFFREY
DLADLA
Third Respondent
Heard:
27 February
2024
Delivered:
27 March 2024
This
judgment was handed down electronically by consent of the parties’
representatives by circulation to them via email.
The date for
hand-down is deemed to be 27 March 2024.
JUDGMENT
PRINSLOO
J
Background
[1]
The Applicant was elected as the First
Respondent’s (POPCRU) general secretary in 2009 and he remained
in the said position
until his dismissal in September 2021. He was
dismissed following a disciplinary hearing, where he was found guilty
of misconduct.
[2]
The Applicant appealed against his
dismissal (the appeal) and in accordance with POPCRU’s
constitution, the appeal was to
be decided by the Central Executive
Committee (CEC). The CEC dismissed the Applicant’s appeal at a
CEC meeting held on 23
and 24 September 2021 (CEC meeting).
[3]
The Applicant subsequently referred an
unfair dismissal dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA)
and after the dispute was
arbitrated, an arbitration award was issued on 9 March 2022. The
Applicant’s dismissal was found
to be fair and his case was
dismissed. He launched a review application to the Labour Court,
seeking to set aside the arbitration
award.
[4]
In
April 2022 the Applicant filed an application wherein he sought
declaratory relief in respect of the CEC’s dismissal of
his
appeal against his dismissal. The relief sought is premised on the
provisions of section 158(1)(e) of the Labour Relations
Act
[1]
(LRA). Section 158(1)(e) provides that the Labour Court may determine
a dispute between a registered trade union and any one of
the members
thereof about any alleged non-compliance with the constitution of the
trade union.
[5]
The Applicant’s case is that the
dismissal of his appeal is unlawful and in contravention of POPCRU’s
constitution.
This application
[6]
The Applicant contends that the dismissal
of his appeal was in contravention of POPCRU’s constitution for
three main reasons,
which I will deal with in turn.
[7]
As a
general principle, an applicant in an application must make out his
or her case in the founding affidavit. Rule 7 of the Labour
Court
Rules
[2]
provides that an
application must be supported by an affidavit, setting out the
material facts on which the application is based
and a statement of
the legal issues that arise from the material facts.
[8]
A new or different case cannot be made out in a replying affidavit or
heads of argument. Rule
7(5)(b) provides specifically that the replying affidavit must
address only those issues raised in the answering
affidavit and may
not introduce new issues of fact or law.
The first reason:
Section 21(2) of the POPCRU constitution
[9]
The Applicant’s case is that section
21(2) of the POPCRU constitution stipulates that the CEC shall be
composed of specified
delegates and that it should have 260
delegates. The CEC meeting convened in September 2021, which
considered the Applicant’s
appeal, was attended by 600
delegates. The composition of the delegates at the CEC meeting did
not comply with section 21(2) of
the constitution in those 600
delegates, as opposed to 260 delegates, attended the CEC meeting and
therefore the composition of
the CEC meeting was unlawful and in
contravention of POPCRU’s constitution, as adopted at the 9
th
National Congress of POPCRU.
[10]
In its opposing affidavit, POPCRU
denied that the applicable constitution was the one adopted at the
9
th
National Congress and submitted that the current applicable POPCRU
constitution was the one adopted at the 8
th
National Congress, which had been certified by the Registrar of
Labour Relations in accordance with the provisions of section 101
of
the LRA. Section 21 of the said constitution does not provide as
alleged by the Applicant.
[11]
The composition of the CEC meeting is
defined in the constitution adopted at the 8
th
National Congress and section 11 thereof requires that the CEC
meeting be attended by the national office bearers, national gender
coordinators, all provincial office bearers, provincial gender
coordinators, all heads of departments, communications officer and
one representative for each 250 members per province.
[12]
It is common cause that POPCRU represents
around 150 000 members across South Africa. The Respondents’
case is that the
composition of the CEC meeting was constitutional
and was convened in accordance with the applicable POPCRU
constitution.
[13]
In his replying affidavit, the Applicant
conceded that the constitution adopted at the 9
th
National Congress was not yet certified by the Registrar of Labour
Relations and that the applicable POPCRU constitution is indeed
the
one adopted at the 8
th
National Congress and that section 11 thereof is the applicable
section. The Applicant replied that the Respondents did not explain
how many delegates attended the CEC meeting or in what capacity they
attended, that the allegation that the CEC meeting complied
with the
POPCRU constitution is no more than a bald allegation and that this
Court should draw an adverse inference from the failure
to disclose
the aforesaid information.
[14]
The difficulty in the Applicant’s
case is that he averred that the dismissal of his appeal is unlawful
and in contravention
of the POPCRU constitution specifically because
section 21(2) stipulates how the CEC shall be composed and that it
should have
260 delegates.
[15]
The Applicant failed to show that the CEC
meeting of September 2021 was unlawful and in contravention of the
POPCRU constitution
because the “
composition
of the delegates at the CEC meeting therefore did not comply with
section 21(2) of the POPCRU constitution in that six
hundred (600)
delegates as opposed to two hundred and sixty (260) delegates
attended…”
The Applicant
relied on the incorrect constitution, and it is evident that the
applicable section 11, makes no mention of 260 delegates.
[16]
This Court cannot find that the POPCRU
constitution was contravened because 600 delegates attended the CEC
meeting when there is
no provision in the constitution that limits
the number of delegates to 260, as per the Applicant’s pleaded
case.
The second and third
reasons: voting procedures
[17]
The Applicant’s second and third
reasons why the dismissal of his appeal is unlawful and in
contravention of the POPCRU constitution
are related to the method of
voting adopted at the CEC meeting.
[18]
The second reason is that it is evident
from the transcript of the CEC meeting that the 600 delegates did not
each cast a vote by
show of hands or otherwise, to endorse or approve
the decision to dismiss the Applicant’s appeal. Instead, a
provincial office
bearer for each of the nine provinces confirmed
that his or her province supported the decision to dismiss the
Applicant. According
to the Applicant, this method of voting adopted
is in contravention of section 50(15) of the POPCRU constitution,
which requires
scrutineers to physically count the number of votes
cast by a show of hands.
[19]
The third reason is that the delegates
should have voted to uphold or dismiss the appeal by a show of hands,
which had to be counted
or by casting a vote in a ballot box. The
Applicant’s case is that the failure to hold a ballot as
contemplated in section
50(15) of the POPCRU constitution, renders
the decision to dismiss his appeal unlawful and in contravention of
the constitution.
[20]
There is no section 50(15) in the
constitution attached to the Applicant’s founding affidavit and
in the answering affidavit,
the Respondents mentioned section 50(1)
of the POPCRU constitution, which deals with ballots. The said
section provides for a ballot
as follows:
‘
A
ballot shall be taken in addition to those cases in respect of which
the taking of a ballot of members of the Union is required
or the
Constitution of the Union so prescribes.’
[21]
It is evident that the same provision is
contained in section 20(1) of the applicable POPCRU constitution.
[22]
The Respondents’ case is that it is
practice that when voting in CEC meetings, the provincial delegates
carry the mandate
for their provinces. The method of voting by show
of hands only becomes necessary when there is opposition to the
mandate given
to the respective provincial delegates – it is
only necessary where the nine provinces do not agree.
In
casu
, after having deliberated on the
appeal, all nine provinces agreed that the Applicant’s appeal
was to be dismissed. The decision
to dismiss the Applicant’s
appeal was unanimous.
[23]
The Respondents further submitted that the
Applicant’s reference to a ballot is misleading. Section 50(1)
(or 20.1) of the
POPCRU constitution provides for the taking of a
ballot when members of the union are required to vote and if
prescribed by the
constitution, which is relevant in cases such as
when the union contemplates embarking on strike action. The CEC
meeting is not
attended by all members of the union.
[24]
In his replying affidavit, the Applicant
denied the Respondents’ version and stated that the applicable
POPCRU constitution
does not state nor imply that the normal voting
procedures should not have been used when considering his appeal.
[25]
In my view, the Applicant failed to show
that the voting method adopted by the Respondents was unlawful and in
contravention of
the POPCRU constitution. He could not point to any
specific section in the constitution to support his challenge to the
lawfulness
of the decision to dismiss his appeal, because each of the
delegates did not cast an individual vote or because of the failure
to hold a ballot.
[26]
In the Applicant’s heads of argument,
reference is made to sections 20 and 21(4) of the applicable POPCRU
constitution and
submissions were made as to why this Court should
find that the CEC’s decision to dismiss the Applicant’s
appeal contravened
the decision making procedure contemplated in
section 21(4) of the applicable POPCRU constitution. These arguments
cannot be accepted
by this Court, as they are based on a case that
had not been pleaded.
[27]
The argument that section 21(4) of the
applicable POPCRU constitution was violated is not supported by any
evidence from the Applicant.
In fact, no such averment had been made
in any of his affidavits before this Court. Arguments must be based
on and be supported
by a pleaded case – a new case, not pleaded
by an applicant and not responded to by an opposing party, cannot be
introduced
in heads of argument for the first time.
Costs
[28]
The last issue to be decided is the
issue of costs.
[29]
In so far as costs are concerned, this Court has a broad
discretion in terms of section 162 of the LRA to make orders for
costs
according to the requirements of the law and fairness.
[30]
The requirement of law has been interpreted to mean that the
costs would follow the result. In considering fairness, the conduct
of the parties should be taken into account and
mala fides
,
unreasonableness and frivolousness are factors justifying the
imposition of a costs order.
[31]
In
Zungu v
Premier of the Province of KwaZulu-Natal and Others,
[3]
the
Constitutional Court confirmed that the rule that costs follow the
result does not apply in labour matters. The Court should
seek to
strike a fair balance between unduly discouraging parties from
approaching the Labour Court to have their disputes dealt
with and,
on the other hand, allowing those parties to bring to this Court (or
oppose) cases that should not have been brought
to Court (or opposed)
in the first place.
[32]
Mr Khomola for the Respondents submitted that a cost order
should be made in favour of the Respondents. He submitted that the
application
had no merit and was opportunistic. Mr Khomola argued
that it was filed only to frustrate the Respondents and because the
CCMA
proceedings did not find in favour of the Applicant. This
application was only filed after the CCMA dismissed the Applicant’s
case. Mr Khomola argued that the Applicant could not refer to any
specific section of the POPCRU constitution that was contravened
and
this application should not have been brought.
[33]
Mr van As for the Applicant submitted that the application
deals with a question of compliance with POPCRU’s constitution
and whether there is either compliance or not and in the event that
the Court finds that the voting was irregular and that there
was no
compliance with the constitution, there is no reason why the cost
should not follow the result. He further submitted that
the Applicant
was entitled to approach this Court, in addition to approaching the
CCMA.
[34]
This is a case where the Court has to strike a balance,
considering the requirements of law and fairness. The generally
accepted
purpose of awarding costs is to indemnify the successful
litigant for the expense he or she has been put through by having
been
unjustly compelled to initiate or defend litigation.
[35]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others,
[4]
it was emphasized that:
‘…
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.’
[36]
In my view, this is a case where a cost order is warranted.
This is more so as the Applicant was legally represented and did not
approach this Court as an unrepresented layperson. When the
Respondents’ opposing affidavit was filed, it should have been
evident to the Applicant and his legal representatives that the
grounds for attacking the lawfulness of the Respondents’
dismissal of the Applicant’s appeal and the averments regarding
the contravention of the POPCRU constitution were not sustainable
or
properly pleaded in that it relied on the incorrect constitution, yet
this application was persisted with.
[37]
A cost order is a method of ensuring that decisions to
litigate in this Court are taken with due consideration of the law
and the
prospects of success.
In casu,
it is evident that the
Applicant persisted with his application without any reflection as to
the content of the answering affidavit
and the possible prospects of
success.
[38]
The conduct of the Applicant forced the
Respondents to oppose a meritless application
and fairness
dictates that they cannot be expected to endure enormous costs to
defend this litigation.
[39]
In the premises, I make the following
order:
Order
1.
The application is dismissed;
2.
The Applicant is to pay the Respondents’ costs.
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicant:
Advocate
M J van As
Instructed
by:
Mashiane
Moodley Monama Attorneys
For
the Respondents:
Advocate
M L Khomola
Instructed
by:
Cawood
Inc Attorneys
[1]
Act
66 of 1995, as amended.
[2]
GN
1665 of 1996: Rules for the Conduct of Proceedings in the Labour
Court.
[3]
[2018]
ZACC 1
; (2018) 39 ILJ 523 (CC) at para 24.
[4]
[2012]
ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.