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[2018] ZALAC 34
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Tshililo and Others v City of Johannesburg and Others (JA33/2017) [2018] ZALAC 34; [2018] 12 BLLR 1180 (LAC) (31 May 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
number: JA33/2017
In
the matter between:
TIMSON
TSHILILO
First appellant
NOMVULA
HADI
Second appellant
THEBEITSILE
MOKOTO
Third appellant
NKHETHENI
MUTHAVHI
Fourth appellant
VUKILE
MLUNGWANA
Fifth appellant
NONCEBA
MBILINI
Sixth appellant
VUYANI
SINGONZO
Seventh appellant
PAUL
TLHABANG
Eighth appellant
MEISIE
SEKALEDI
Ninth appellant
and
CITY
OF JOHANNESBURG
First respondent
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
Second
respondent
PULE
MOLALENYANE
Third respondent
JOHN
DLAMINI
Fourth respondent
PORTIA
LINDI
Fifth respondent
SIMON
MATHE
Sixth
respondent
MOSES
MIYA
Seventh
respondent
JUSTICE
SERA
Eighth
respondent
VUSI
MASHILE
Ninth respondent
CALEB
MOKOENA
Tenth
respondent
PRISCILLA
NTSUBA
Eleventh
respondent
DUMA
LEBAKENG
Twelfth
respondent
SOMORA
NDLOVU
Thirteenth respondent
STANLEY
MOLOKO
Fourteenth respondent
KHAYALETHU
NYATHI
Fifteenth respondent
RACHEL
MATSEPE
Sixteenth respondent
BAFANA
ZUNGU
Seventeenth
respondent
THOMAS
LEBEA
Eighteenth respondent
SOUTH
AFRICAN LOCAL GOVERNMENT Nineteenth
respondent
ASSOCIATION
Date
of hearing: 27 February 2018
Date
of judgment: 31 May 2018
Coram:
Waglay JP, Phatshoane ADJP and Savage AJA
Judgment
SAVAGE
AJA:
Introduction
[1]
This
appeal, with the leave of the Court
a
quo
,
is against the judgment and orders of the Labour Court (Snyman AJ) in
which final relief was granted declaring that the 3
rd
to
7
th
respondents
are the current legitimately elected and appointed national
office-bearers (NOB’s) of the first respondent, the
South
African Municipal Workers’ Union (SAMWU); and the 14
th
to
18
th
respondents
are the current legitimately elected and appointed Johannesburg
regional office-bearers (ROB’s) of SAMWU. Together
these
respondents are referred to as “the Molalenyane faction”.
The appeal is brought by the appellants as members
of the opposing
faction within SAMWU, referred to as “the Tshililo faction”,
against the judgment and orders of the
Labour Court. Like the
respondent members of the Molalenyane faction, the appellants were
respondents before the Labour Court.
[2]
The
first respondent, the City of Johannesburg (the City), brought an
application on an urgent basis in the Labour Court on 10 November
2016. The relief sought included a
rule
nisi
-
2.1
declaring
the 3
rd
to
11
th
respondents
(the 2
nd
to
10
th
respondents
in the Court
a
quo
)
and the 14
th
to
18
th
respondents
(the 22
nd
to
26
th
respondents
in the Court
a
quo
)
the legitimate office bearers of SAMWU (members of the Molalenyane
faction);
alternatively
,
declaring the 1
st
to
9
th
appellants
and the 12
th
and
13
th
respondents
(the 11
th
to
21
st
respondents
in the Court
a
quo
)
the legitimate office bearers of SAMWU (members of the Tshililo
faction);
2.2
pending
the final determination of the matter, that the City was not obliged
to recognise any of the 2
nd
to
26
th
respondents
as duly authorised officials of SAMWU for the purpose of labour
relations; and that the City was not obliged to recognise
any
ostensible shop stewards of SAMWU for the purpose of the exercise of
any organisational rights or other rights of shop stewards.
[3]
The
City sought this relief after the Gauteng branch of SAMWU split in
2016 into the Molalenyane and the Tshililo factions, both
claiming to
be the legitimate representatives of SAMWU. Since the City was not
aware as to who the legitimately elected officials
of the union were,
it
sought
that the Labour Court
determine
the matter in terms of s 158(1)
(e)
(i),
which provides that:
‘
S
158 (1) The Labour Court may ...
(e)
determine
a dispute between a registered trade union or registered employers’
organisation and any one of the members or applicants
for membership
thereof, about any alleged non-compliance with ...
(i)
the constitution of that trade union;
...’.
[4]
Having
regard to s 158(1)(e)(i) the Labour Court found that it had exclusive
jurisdiction “
to
entertain the application”.
However,
as to the City’s
locus
standi
,
it was stated:
‘
[7]
When this matter came before me, the applicant, as well as the
Molalenyane and Tshililo factions, were each individually represented
by counsel. I engaged with all the parties to find a legitimate basis
as to how to consider and then decide this matter. I conveyed
to the
parties that I did have concerns about the locus standi of the
applicant to bring this application, but understood why the
applicant
did so. The parties all agreed that there existed a situation that
needed to be resolved, in the interest of all concerned.
[8]
Considering that all the facts and issues were fully ventilated in
several hundred pages of affidavits and annexures before
me, I then
suggested to the parties that both the Molalenyane and Tshililo
factions each argue their respective cases as to why
the members of
each of these factions should be considered to be the legitimately
elected and appointed current office-bearers
of SAMWU. I however made
it clear to all the parties that I would only ascribe to such an
approach if all the parties agreed to
it, and I stood the matter down
to allow the parties an opportunity to consider their positions in
this regard. When the proceedings
reconvened, all the parties
indicated that they were satisfied with the proposal I had made and
they all agreed that I decide the
matter on this basis...
’
.
[5]
The
Labour Court relied on the decision of this Court in
MacDonald’s
Transport Upington (Pty) Ltd v Association of Mineworkers &
Construction Union & others,
[1]
in
which it was emphasised that the relationship between a union and its
members is a private matter and that “
(t)o
interfere with the private contractual relationship of other persons,
a stranger would have to demonstrate some sort of delictual
harm
”
.
In that matter it was stated that “
a
constitution is no more than a contract between an institution and
its members
”
and
that only fellow members and not a third party could raise a
complaint relating to the constitution. For this reason, the Labour
Court found that the City did not have the “
licence
to in effect interfere in internal union affairs
”
and
“
has
simply not shown the kind of circumstances so as to establish locus
standi, as enunciated in MacDonald’s Transport”
.
[2]
[6]
Reliance
was also placed on
SA
Airways SOC Ltd & another v National Transport Movement &
others,
[3]
in
which the employer was found not to have a right to have its
preferred choice recognised as leadership of the union, given that
in
terms of s 95(1)(d), read with s 95(2)(b), a trade union is to be
independent and free from influence from any employer. Snyman
AJ
agreed with this reasoning and found that the City lacked
locus
standi
to
bring the application, since it was not entitled to rely on s
158(1)(e) to interfere in union affairs.
[7]
My
own view is that there was no attempt by the City to interfere with
the affairs of the union but that it sought certainty as
to who it
should deal with in the day to day business with the union.
Nevertheless, with the agreement of all parties to the Labour
Court’s
proposal that “
the
Molalenyane and Tshililo factions each argue their respective cases
as to why the members of each of these factions should be
considered
to be the legitimately elected and appointed current office-bearers
of SAMWU”,
the
Court proceeded to hear the application.
Background
[8]
In
2015 SAMWU elected national, provincial and regional office-bearers.
Members of the Molalenyane faction were elected as national
office
bearers (NOB’s) of SAMWU. The second respondent was elected as
president, the third respondent as first deputy president,
the fourth
respondent as national treasurer, the fifth respondent as general
secretary, and the sixth respondent as deputy general
secretary. The
second, third and fourth respondents were elected at the national
congress held in August 2015, and the fifth and
sixth respondents at
a CEC meeting on 9 December 2015, pursuant to clause 11.1.5 of the
constitution. In Gauteng, at a provincial
congress held in May 2015,
the seventh respondent was elected as deputy chairperson, the eighth
respondent as provincial treasurer,
and the ninth respondent as
provincial secretary. These elections were not placed in issue in the
Labour Court, nor was the legitimacy
and validity of the election of
KwaZulu-Natal (KZN) POB’s at that provincial congress held in
May 2015.
[9]
In
early 2016, disputes arose between factions of the union in KZN.
These disputes spread to other provinces, including Gauteng,
and led
to various applications to Court. Following the KZN provincial
congress in May 2015, no provincial executive committee
(PEC) meeting
was called. The issue was escalated to the provincial chairperson, Mr
Siminenkosi Ndlovu, then to the fifteenth respondent
and thereafter
to the NOB’s. An investigation ensued and the NOB's resolved to
disband the KZN province structure. This resolution
was subject to
approval by the KZN PEC. On 27 January 2016, a KZN PEC meeting was
held, attended by the NOBs. The PEC resolved
to approve the decision
taken by the NOB’s to disband the KZN provincial structure and
to call a special provincial congress
to elect new leadership for
KZN. This course of action was supported by the KZN regions.
[10]
The
provincial chairperson, Mr Ndlovu, was not satisfied with this
decision and, through attorneys, on 27 January 2016 wrote to
SAMWU,
purportedly on behalf of all the KZN POBs, that the decision to
disband the PEC was not recognised and that they reserved
their
rights to continue to perform all their functions as POB’s. On
1 February 2016 SAMWU responded, through their attorneys,
that the
POB’s did not have the power to interfere with a decision
taken by the PEC. In spite of this, the KZN POB’s
continued to
act as POB’s. Mr Ndlovu advised the union in writing
inter
alia
that
the KZN POBs would make the province ungovernable for SAMWU. The KZN
POBs, including Mr Ndlovu, were expelled from SAMWU with
immediate
effect. Following their suspension, on 18 February 2016, they sought
urgent relief in the South Gauteng High Court challenging
both the
decision to disband the KZN provincial structure and their
suspensions. The application was postponed
sine
die
with
costs given the lack of urgency. The sixteenth respondent, Mr
Nkhetheni Muthavhi, the chairperson of the Gauteng region of
SAMWU,
who supported the KZN POB’s, was also expelled from SAMWU.
[11]
On
3 March 2016 the expelled KZN POB’s, with Mr Muthavhi, brought
an urgent application in the Labour Court in Durban. They
sought an
order that a special provincial congress to be convened in KZN to
elect new leadership for KZN was unconstitutional and
unlawful, with
an order setting the congress already held aside and setting aside
their expulsion. Whitcher J found that their
expulsions were
justified given their conduct and dismissed the other relief sought.
[12]
On
11 March 2016, the special KZN provincial congress was held. Shortly
after
the
conclusion of the congress, the Sheriff of the High Court served an
interim order on delegates, granted on 10 March 2016 by
the High
Court in Durban at the instance of the KZN POB’s, interdicting
the special provincial congress on the basis that
it was unlawful.
The return date of the order, initially 17 March 2016, was in due
course extended to 9 May 2016.
[13]
The
KZN POB’s and Mr Muthavhi arranged their own central executive
committee (CEC) meeting on 14 March 2016 at which a number
of
resolutions were taken, relating
inter
alia
to
the election of NOB’s; that the expelled members of the
Tshililo faction be reinstated; and that members of the Molalenyane
faction be expelled from SAMWU. Written notice of the expulsion of
members of the Tshililo faction was given on 17 March 2016,
because
of this
irregular
and unlawful CEC meeting held on 14 March 2016, and on the basis that
they had disrupted the affairs of SAMWU and prejudiced
the union.
[14]
On
30 March 2016, members of the Tshililo faction brought an urgent
application in the
Labour
Court against members of the Molalenyane faction and COSATU
seeking
an order that members of the Molalenyane faction
cease
acting
as NOB’s, that SAMWU be compelled to call a special CEC to
elect new leadership, and that in the interim COSATU act
as
administrator of SAMWU.
When
the application came before the Court on 26 April 2016, it was
postponed
sine
die
and
a settlement agreement entered into between the parties was made an
order of Court. In terms of this agreement, the 5
th
respondent,
as general secretary, had to convene a special CEC by no later than
19 May 2016. Furthermore, issues for discussion
at this special CEC
were
to
be submitted to the general secretary by close of business on 3 May
2016. The dispute as to the composition of the delegates
to
attend
the
CEC
meeting
was
referred to the CCMA for facilitation
before
4 May 2016. No agreement was reached at the CCMA and, since
the
composition of delegates remained unresolved, no
CEC
meeting was held.
[15]
The
matter was not re-enrolled in the Labour Court. On 9 May 2016, the
High Court in Durban discharged the interim order granted
on 10
March 2016, with costs. On 19 May 2016, the two
factions
each convened its own special CEC meeting with the claim that this
accorded with the order of 26 April 2016. In each of
the CEC meetings
held, NOB’s were elected. Each faction rejected the election
results and the appointment of NOB’s
by the other faction. The
CEC meeting of each faction resolved that the expulsion of members of
its faction was lifted, while
the
expulsion of the members of the other faction was confirmed. Each
faction claimed
leadership
of SAMWU in dealing with third parties, such as municipalities,
although the Molalenyane faction remained
in
control of SAMWU’s finances. This caused the Tshililo faction
to write to various municipalities on 6 June 2016, indicating
that
the membership contributions of SAMWU members should not be paid into
the current SAMWU accounts, but into an alternative
account. By this
point the factional dispute had involved other SAMWU provinces.
Relevant
provisions of SAMWU constitution
[16]
In
terms of clause 9.1 of the SAMWU constitution, the CEC is to be
comprised of the NOBs elected by national congress, all POBs
elected
by provincial congresses, one representative for every 5 000 members
in a province, and any other union official designated
by the
NOB’s for this purpose. CEC meetings are governed by clause 9
of the SAMWU constitution. Clause 9.2 provides that
a CEC meeting is
to be convened on at least one month’s notice, with the notice
to set out what is to be discussed. Special
CEC meetings on shorter
notice may be convened if the NEC, by majority vote, or the NOB’s
unanimously, approve this or the
majority of the CEC representatives
request as much. For a special CEC meeting to be convened, at least
48 hours’ notice
is required. A quorum for a CEC meeting is at
least a majority of the representatives, provided that at least 66.6%
of the provinces
are represented.
[17]
When
a CEC meeting is requested by the majority of the representatives,
there is also a process to be followed. The provincial secretary
is
required to notify the general secretary in writing that a resolution
has been taken at a PEC meeting that a particular issue
must be dealt
with at a CEC. If the NOB’s unanimously agree, the general
secretary is required to issue a notice of the special
CEC meeting to
be held.
[18]
The
provincial structure mirrors the national SAMWU structure and is
regulated by clause 7 of the constitution. The PEC is comprised
of
the POB’s elected by the provincial congress and
representatives from all the branches in the province. A PEC meeting
may be called on at least 14 days’ notice, with the notice to
detail what is to be discussed. Special PEC meetings may be
convened
on shorter notice. A quorum for a PEC meeting shall be at least a
majority of the delegates, provided that at least 50%
of the branches
are represented.
Judgment of
the Labour Court
[19]
The
Labour Court found that the “derailment” of SAMWU began
in 2016, with its origin in the KZN region, when the complaint
about
the KZN POB’s was raised and escalated to the national
structure. The KZN PEC was found to have been properly convened
to
deal with this complaint on 26 January 2016, but that “
the
trouble started…when this PEC resolved to disband the existing
KZN leadership
”
.
[20]
The
Court found that there “
can
be no doubt about the legitimacy and validity of nor any sustainable
challenge to
”
the
KZN special provincial congress of 11 March 2016 and the resolutions
adopted there given that the “
dissident
members, including several members of the Tshililo faction
”
were
ultimately unsuccessful in the Durban High Court with their challenge
to the legitimacy and validity of this special provincial
congress.
It took the view that since the interim order obtained from the
Durban High Court was discharged on 9 May 2016, the interim
relief
obtained could not legitimise or validate this CEC meeting convened
on 14 March 2016 by the Tshililo faction. The CEC meetings
held of 14
March 2016 were found to be null and void in that it did not comply
with clauses 9.1 and 9.2 of the SAMWU constitution,
since no proper
notice had been given of the meeting, there was no quorum, the NOB’s
were not present, not all the POB’s
attended the meeting and
the meeting was not chaired by the existing president of SAMWU. The
result was that any resolutions adopted
were also null and void and
the members of the Tshililo faction were not legitimately elected
officials of SAMWU. It was also found
that the decision to expel
members of the Molalenyane faction was invalid.
[21]
Since
the settlement agreement, made an order of the Labour Court on 26
April 2016 envisaged that should there be no agreement on
the
composition of delegates, there could be no special CEC meeting if
disagreement continued. Instead of both factions taking
matters into
their own hands on 19 May 2016, the application should properly have
been re-enrolled. The meetings convened on 19
May 2016 were found to
be irregular and incompetent since the prerequisites for a valid CEC
meeting were lacking and the resolutions
made were null and void. As
a result, the Labour Court went back to the 2015 elective meetings
and found that the Molalenyane faction
had been properly elected and
appointed into their applicable NOB positions in 2015.
[22]
The
Labour Court found further that the expulsion of the members of the
Tshililo faction by 17 March 2016 stood until set aside;
and that
those individuals whose expulsion had been confirmed by the Labour
Court stood. The result was that the members of the
Tshililo faction
were not to be eligible to hold office in SAMWU. The 14
th
respondent
before the Court
a
quo
,
who challenged his March 2016 dismissal at the CCMA, settled the
dispute on the basis that he was not reinstated or re-employed
and
received payment of a monetary amount. Consequently, the Court found
that as he is longer an employee of SAMWU he did not qualify
to hold
the office he occupied in SAMWU.
[23]
The
Court also found that the 2
nd
–
6
th
respondents,
as legitimately elected NOB’s, could in the normal course
have convened a valid special CEC meeting, such
as that convened on
19 May 2016. The parties had agreed to a process which was made an
order of court on 26 April 2016. Given that
the Molalenyane faction
CEC meeting of 19 May 2016 was null and void, the election of the 9
th
respondent
a
quo
,
Mr Caleb Mokoena, as provincial secretary, it was found, could not
stand as he had been expelled since 18 December 2015 and his
expulsion could only be lifted at the properly constituted CEC
meeting. Accordingly, the decision taken on 19 May 2016 to
lift
his expulsion was null and void. Similarly, until the appeal of the
9
th
respondent
against his expulsion is dealt with by a properly constituted CEC
meeting, the Labour Court found that he remained expelled
and
ineligible to hold office. The 22
nd
–
26
th
respondents
a
quo
were
found to have been elected as regional office-bearers of the
Johannesburg region in Gauteng at a Regional Executive Committee
(REC) meeting held on 3 September 2016. Since the validity of that
meeting was not challenged, the Court found that they had been
properly elected into the positions held.
[24]
Expressing
the hope that its judgment would bring some certainty to the affairs
of SAMWU and its relationship with various municipalities,
the Labour
Court determined the matter in favour of the Molalenyane faction,
save for the issue related to the election of the
9
th
respondent,
Mr Mokoena. The second respondent (president), the third respondent
(first deputy president), the fourth respondent
(national treasurer),
the fifth respondent (general secretary) and the sixth respondent
(deputy general secretary) were found to
be the current legitimately
elected and appointed national office-bearers of SAMWU. The 22
nd
–
26
th
respondents
a
quo
were
found to be the legitimately elected regional office-bearers of
the SAMWU in the Johannesburg region. The Labour Court
stated that,
as contemplated by the court order of 26 April 2016, a proper special
CEC meeting was still to be held and urged that
the leadership of
SAMWU would use this opportunity to normalise its affairs to what
would be expected of a responsible trade union
acting in the interest
of its membership.
Submissions
on appeal
[25]
The
appellants’ appeal against the judgment of the Labour Court on
the basis that it erred in finding that the special CEC
meeting held
on 14 March 2016 was not valid or legitimate, when the provinces had
requested, in January 2016, that the meeting
be held in compliance
with clause 9 of the SAMWU constitution. Furthermore, the provinces
had attended the meeting. Consequently,
it is contended, that the
election of the members of the Tshililo faction as interim leaders
was valid and lawful and, it was submitted,
the Labour Court erred in
finding that members of the Tshililo faction had been expelled when
such purported expulsion did not
comply with clause 16.5 of the SAMWU
constitution. Issue was also taken with the Court’s failure to
consider the case of
each appellant purportedly suspended so as to
determine whether a proper case had been made out; and with the
finding that members
of the Molalenyane faction had been properly
elected. Although the meeting of 3 September 2016 was not in issue,
the Court erred
in pronouncing on its legitimacy, when it was a
consequence of the CEC meeting of 19 May 2016 which had been found to
be null and
void, and when the REC was constrained by the powers in
clause 6 of the SAMWU constitution and had no power to elect ROB’s.
Since Mr Moses Miya was elected at the CEC meeting of 19 May 2016,
the Court erred in failing to find that his election was invalid
and
unlawful as the Court had found in respect of the election of Mr
Caleb Mokoena.
[26]
In
argument on appeal it was contended for the appellants that the
Labour Court had disregarded the settlement agreement made an
order
of Court and that it was not open to the Labour Court to revert to
the status
quo
of
2015 when the terms of that order were not fulfilled. It was
submitted that the SAMWU constitution did not permit the Labour
Court
to declare the CEC meeting of 14 March 2016 null and void when clause
9 of the SAMWU constitution had been complied with.
Furthermore, the
Durban High Court order had pertained only to the meeting of the
provincial congress and not to the CEC meeting
which was
constitutionally compliant. In addition, the expulsion of the
appellants through the letter of 17 March 2016 was null
and void and
contrary to the provisions of the SAMWU constitution, since clause 16
regulates the manner in which executive committee
members and NOB’s
may be disciplined. Finally, it was contended that the election of
the Johannesburg ROB’s at the
meeting of 3 September 2016 was
not properly before the Court, although the Court erroneously
concluded that there was no reason
to doubt the legitimacy of such
elective process. The appellants consequently contend for an order
upholding the appeal and remitting
the matter back to the Labour
Court to resolve the outstanding matter of credentials.
[27]
Although
in heads of argument filed, it was contended for SAMWU that it had
not been joined as a party to the appeal, at the hearing
of the
matter it was accepted that SAMWU had been cited as such in the
Labour Court and that it remained a respondent in this appeal.
SAMWU
also contended that the appellants had raised new matter on appeal
relating to the validity of resolutions taken consequent
to a CEC
meeting and the consequences of the settlement agreement made an
order of the Labour Court on 26 April 2016. Since the
order of 26
April 2016 was annexed to SAMWU’s answering affidavit, it was
argued that the appellants had failed to make out
a case based on
that order. Relying on
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
[4]
it
was argued that it was not proper for SAMWU to base its argument on
an annexure or to advance its argument on this issue for
the first
time on appeal. It was contended that, since a CEC meeting was
convened in accordance with clause 9.2 of SAMWU’s
constitution
from 4 – 7 April 2017, after the judgment of the Labour Curt on
8 March 2017, at which the NOB’s, Mr Pula
Molalenyane, Mr John
Dlamini, Ms Portia Lindi, Mr Simon Mathe and Mr Moses Miya, were
elected and a range of other resolutions
taken, the appeal is moot.
Discussion
[28]
Locus
standi in iudicio
is
an access mechanism controlled by the court itself, concerned with
whether the litigant is regarded by the court as having a
sufficiently close interest in the litigation.
The
Labour Court found that the City lacked
locus
standi
to
seek the relief it did in this matter, given both the terms of s
158(1)(e)(i) and s 95 of the LRA. Th
is
finding is not an issue before this Court on appeal. Rather, it is
the consequences of the finding which require consideration
in this
appeal.
[29]
It
is trite that it is for the parties to identify the dispute and for
the court to determine that dispute between the parties.
Given
t
he
nature of civil litigation in our adversarial system, it is for the
parties, either in the pleadings or affidavits, which serve
the
function of both pleadings and evidence, to set out and define the
nature of their dispute and it is for the court to adjudicate
upon
those issues.
[5]
Although
the City was found to lack
locus
standi
to
bring the application, t
he
Labour Court noted that “
the
parties all agreed that there existed a situation that needed to be
resolved, in the interest of all concerned
”
.
The judge then suggested that “
both
the Molalenyane and Tshililo factions each argue their respective
cases as to why the members of each of these factions should
be
considered to be the legitimately elected and appointed current
office-bearers of SAMWU”
given
that “
all
the facts and issues were fully ventilated in several hundred pages
of affidavits and annexures”.
The
matter stood down to allow the parties to consider this and when “
the
proceedings reconvened, all the parties indicated that they were
satisfied with the proposal I had made and they all agreed
that I
decide the matter on this basis”.
[30]
The
Labour Court is in a unique position in being not simply a court of
law but also one of equity. The reality which existed at
the time
that the matter came before the Labour Court, and which still exists,
is that there was turmoil within SAMWU. This turmoil
has been to the
detriment of thousands of SAMWU members. It is compounded by the fact
that the union holds assets worth almost
a billion rand in value,
which could be squandered or spent on curators or liquidators if the
leadership of the union fails to
resolve its personal conflicts.
[31]
The
Labour Court properly, in the interests of the members of SAMWU, and
on the basis of equity, obtained the agreement of the parties
to
consider which faction is properly in charge of the union. With both
factions having agreed that the Court should do so, the
matter was
thereafter determined on the basis of the law. It is material that
neither faction objected to this approach, even at
the appeal stage.
The Labour Court therefore determined the matter in the manner it
did, having regard to the fact that the parties
had agreed to this
and since it is both a court of law and equity. While I accept that
this is probably an exception and that similar
situations are
unlikely to arise, each matter must be determined on its own facts.
[32]
The
Molalenyane faction, in the answering affidavit of Mr Simon Mathe,
approached the matter
inter
alia
on
the basis that a settlement had been reached which had been made an
order of Court and that such agreement should be complied
with. It
also claimed that the matter could not be determined due to the
existence of factual disputes between the parties; and
the failure to
join certain parties. The Tshililo faction, in the answering
affidavit of Mr Timson Tshililo, opposed the application
on the basis
that members of its faction were the legitimate office bearers of
SAMWU, having been elected at a constitutionally
convened meetings,
whereas the CEC meeting convened by the Molalenyane faction had been
“
a
bogus CEC
”
convened
by a faction which had “
hijacked
the union
”
.
[33]
The
Labour Court correctly found that the “derailment” of
SAMWU began in 2016, with its origin in the KZN region. A
KZN special
provincial congress was held on 11 March 2016, and, although, an
interim order had been obtained by the Tshililo faction
in the Durban
High Court to prevent the congress from proceeding, by the time the
order had been served, the congress had concluded.
By 9 May 2016 the
interim order was discharged. The Labour Court accepted the
legitimacy and validity of the 9 May 2016 meeting
and the resolutions
adopted at the meeting, but found that the subsequent CEC meeting
held on 14 March 2016 was null and void in
that it did not comply
with clauses 9.1 and 9.2 of the SAMWU constitution.
[34]
These
events were followed by the Labour Court application brought by the
Tshililo faction in which an order was sought
inter
alia
that
members of the Molalenyane faction cease acting as NOB’s; and
that SAMWU be compelled to call a special CEC to elect
new
leadership. The ensuing settlement agreement, made an order of the
Labour Court on 26 April 2016, sought to bring order to
the fractured
situation. It provided that the factions would, through facilitation
at the CCMA, seek to agree to the composition
of delegates to attend
a CEC meeting to be scheduled in due course. When no agreement was
reached regarding delegates, both factions
convened their own CEC
meetings. Neither faction approached the Labour Court to re-enrol the
application which had been postponed
sine
die
.
In conducting themselves in this manner, the Labour Court correctly
found that neither of the CEC meetings had been lawfully convened
and
that the resolutions taken at both meetings were therefore null and
void. As a result the Court, correctly in my view, returned
to the
2015 elective meetings and found that it was the decisions taken at
these meetings which were valid and remained in force.
The members of
the Molalenyane faction were therefore determined to have been
properly elected into the NOB positions they held
in 2015. The Court
found that the expulsion of the members of the Tshililo faction by 17
March 2016 stood until set aside; and
that those individuals whose
expulsion had been confirmed by the Labour Court stood.
[35]
In
its analysis and decision on the issues, the Labour Court cannot be
faulted. Although it was contended that
a
number of factual disputes had arisen between the parties, I am not
persuaded that this is so. The judgment and orders of the
Labour
Court had regard to those undisputed facts placed before the Court,
as is apparent from the contents of the affidavits filed
and the
Court’s reasoning.
[36]
In
the result, the appeal cannot succeed and the final relief granted by
the Labour Court must stand. Given the nature of the dispute
between
the parties, and having regard to considerations of law and fairness,
it is appropriate that no order as to costs be made.
Order
[37]
For
these reasons, the following order is made:
1.
The
appeal is dismissed.
SAVAGE AJA
Waglay
JP and Phatshoane ADJP agree.
Representatives
:
For
the appellants: Mr T
Ngcukaitobi and Ms Y Ntloko
Instructed
by:
Kgoroeadira Mudau Inc.
Attorneys.
For
first respondent: Mr M van As
Instructed
by:
Moodie & Robertson
Attorneys
For
second and further
respondents:
Mr R Venter
Instructed
by:
Maenetja Attorneys
[1]
(2016)
37 ILJ 2593 (LAC) at para 42.
[2]
At
para 21 and 22 of the judgment of the Labour Court.
[3]
(2016)
37 ILJ 2128 (LC).
[4]
2008
(2) SA 184
(SCA) at para 43.
[5]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
paras 15 and 19;
CUSA
v Tao Ying Metal industries
[2008]
ZACC 15
;
2009 (2) SA 204
(CC) at para 68.