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[2011] ZALCJHB 275
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United Peoples Union of South Africa v Registrar of Labour Relations (J2252/09) [2011] ZALCJHB 275 (15 February 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE NO: J 2252/09
In
the matter between:
UNITED
PEOPLES UNION OF SOUTH
AFRICA
Appellant
And
REGISTRAR
OF LABOUR
RELATIONS
Respondent
JUDGEMENT
MBILENI
AJ.
Introduction
[1]
This is an appeal brought by the appellant – United Peoples
Union of South Africa (“
UPUSA
”) against the
decision of the respondent – Registrar of Labour Relations
(“
Registrar
”) in terms of
Section 111(3)
of the
Labour Relations Act 66 of 1995
as amended (hereinafter referred to
as the “
LRA”
).
[2]
The respondent cancelled the registration of the appellant as a trade
union on the 2 October 2009 and published such cancellation
in the
Government Gazette on the 16 October 2009. The registration of the
appellant as a union was cancelled for the following
reasons:
·
According to the records of the respondent, the appellant failed to
comply with
the provisions of
Sections 98
,
99
and
100
of the LRA
[Section 106(2A)(b)].
·
The appellant had ceased to function in terms of its constitution.
·
The appellant had ceased to operate as a genuine trade union.
Grounds
of Appeal
[3]
The appellant’s grounds for appeal are summarized as follows:
·
Prior to June 2009, the respondent never issued a written notice to
the appellant
requiring it to comply with
Sections 98
,
99
and
100
of
the LRA. The appellant has not failed to comply with same.
·
The notice of intention to cancel the registration of the appellant
published
by the respondent in the Government Gazette was hopelessly
premature because the respondent had not complied with
Section 106
(2A) (b) of the LRA. The cancellation is therefore ultra vires.
·
The financial statements of the appellant were provided by its
auditor to the
respondent on the 18 August 2009 for the financial
year ended February 2007 and February 2008.
·
At the time of cancellation, the respondent did not provide the
appellant with
reasons for such cancellation. The respondent merely
reiterated the LRA in
Section 106(2A)
(b). The respondent failed to
furnish the appellant with any facts upon which its conclusion and
findings were based. It had therefore
not exercised its discretion
and powers honestly and properly.
·
The respondent has failed to explain the aspects in which the
appellant has ceased
to operate in terms of its constitution, as a
genuine trade union and the aspects on which it has allegedly failed
to comply with
Sections 98
,
99
and
100
of the LRA.
·
The reasons provided by the respondent on the 18 November 2009 are
not the same
reasons upon which he had relied at the time of
deregistration.
Background
Facts
[4]
On the 9 June 2009 the respondent wrote to the appellant advising it
that he intended to cancel its registration as a trade
union and such
notice would be published in the Government Gazette on the 19 June
2009. The notice was duly published in the Government
Gazette on the
said date.
[5]
The notice published in the Government Gazette was calling upon any
interested party to make representation as to why the appellant
should not be deregistered. A letter was received by the respondent
from members of the appellant wherein they appealed to the
respondent
not to cancel the appellant’s registration as a trade union
because inter alia the appellant: “
has promoted and
protected the rights and interests of its members”
. The
letter further purported to give an undertaking to comply with
Sections 98
,
99
and
100
of the LRA by the 19 August 2009.
[6]
On the 2 October 2009, a letter was dispatched to the appellant by
the respondent informing the appellant that its registration
had been
cancelled with effect from the same date. Further that such
cancellation was to be published in the Government Gazette
on the 16
October 2009.
[7]
On the 20 October 2009 the appellant requested reasons for the
cancellation of its registration in terms of
Section 111(2)
of the
LRA. The reasons were furnished to the appellant by the respondent on
the 18 November 2009. The appellant appealed against
the respondent’s
decision on the 20 November 2009 to this court.
[8]
The reasons provided by the respondent to the appellant in terms of
Section 111(2)
of the LRA were merely details of the reasons already
given during the cancellation of registration. The letter written by
the
respondent to the appellant on the 18 November 2009 regarding the
reasons for cancelling its registration as a result that its
organization has ceased to function in terms of its constitution
reads as follows:
“
In terms of
clause 9.1.2 of the Union’s constitution, the National
Executive Council of UPUSA consist of the following: President,
Vice
President, National Treasurer, General Secretary, Assistant General
Secretary and two National Organisers. Names and addresses
of office-
bearers and officials submitted to this office were never submitted
on the basis provided for in the constitution. There
appears to be
only one (1) office-bearer in the union namely Mr Osman Abdallah, the
President of the union. All other positions
in the union are held by
officials and officials are making decisions in this union. No or
very little worker participation could
be traced in the normal
operations of the union. The Vice President is Mrs Veronica Luthuli,
the wife of Mr Luthuli, who is a paid
official of the union and can
in terms of the approved constitution not hold the position of Vice
President. Mr Abdallah is President
as well as Treasurer of the
union; this is also improper and contrary to good governing
principles and could also be a conflict
of interest.
Mr Elphas Luthuli
occupies two positions, one is provided for in the constitution and
the other is not. He is the National Organiser
and at the same time
the National Chairperson. The latter mentioned position and its
duties are not provided for in the current
Constitution registered
with the Registrar’s office. Mr. Luthuli has acted in both
capacities on many occasions and also
wrote letters in both
capacities. Any action taken as National Chairman would be
unconstitutional.
According to
information received Mr Luthuli further acted unconstitutionally by
terminating the membership of nine (9) shop stewards
who were working
at Sasol Mining in Secunda.
In essence the
constitution of the union requires that a member should be given an
opportunity to state his case before that member
may be acted
against. It is the appropriate committee that can determine on
whether to terminate or not to terminate union membership,
not an
individual. Mr Luthuli disregarded the provisions of the constitution
and acted unilaterally by claiming the powers of such
committee. This
is another indication that the union is not operating in terms of its
constitution and is totally under the control
of an individual.
Furthermore it has
been alleged under oath by the Union’s General Secretary (Mr
Thathezakhe Xulu) and the President (Mr Osman
Abdallah) that the
Union is not operating in terms of its constitution when it comes to
holding its meetings. For example in their
application to the Durban
High Court the two have cited the Union and the new NEC members as
respondents (case no. 14865/08). They
have approached the High Court
in KZN to declare the holding of the National Congress and its
proceedings on 26 and 27 September
2008 in Durban Coastlands Hotel
conference facilities, invalid and with no effect. They claim that
the Congress was unconstitutional,
as the Union disregarded clause
8.3.1 of the constitution which accords the President power to call
the National Congress upon
resolution by the NEC.
I also received a
telephonic complaint from an individual that indicated that the union
did not want to pay her settlement money
over to the individual
unless she came to the union office to physically collect the money.
It was only after my intervention and
that of the Provincial Office
of the Department of Labour in Johannesburg that Mr. Luthuli agreed
to pay over ⅔ of the settlement
amount to the individual
concerned. It was Mr. Luthuli’s explanation that a ⅓ of
the money would be retained and paid
over to SARS on her behalf. This
individual who was not a member of the union, had to pay an amount
upfront before the union was
willing to represent her.
This is also an
indication that the union is operating outside the ambit of its
constitution; this should be a union only for members
and not a
consultancy for members of the public.
The representations
made by Cliffe Decker & Hofmeyr Attorneys confirm the above. They
provided proof that the Union claims fees
to institute proceedings on
behalf of “members”. UPUSA claims a fee of R2 000
from a member before it will consider
instituting or lodging a
dispute. A copy of UPUSA’s constitution attached as an annexure
to the recognition agreement concluded
between Air Chefs (Pty) Ltd
and UPUSA (during November 2004) clearly shows that the union is not
operating in terms of its approved
constitution. This constitution
claims that the union may claim fees from members. Clause 13.3(a) of
this constitution states:
‘
In any legal
action taken by the union on behalf of the members the Union shall
deduct twenty (20) per cent from a member as compensation
in any
Court ruling in any settlement.’
The constitution that
was submitted to the employer is not the union’s official
constitution that has been approved by the
Department on 23 July
1998. This constitution is part of the misrepresentation of the union
to its members and the public. This
is proof of the fact that the
union is acting unconstitutional. This action is also construed as
activities that officials’
of a non-genuine union would do in
order to enrich themselves at the cost of their unsuspecting and
vulnerable members.
All the financial
statements that were submitted to the Department were not audited in
terms of the constitution of the union. According
to clause 14.3.2 of
the union’s constitution the financial year end is 31 December
and all the statements reflect a financial
year end of 28 February.
The organization did
not comply with the provisions of sections 98, 99 and 100 of the Act
[section 106(2A) (b)]
The constitution of
the union and the LRA demand that the obligations outlined in
sections 98
,
99
and
100
of the
Labour Relations Act be
complied with,
within timeframes and in a prescribed manner, by all registered trade
unions. The Union failed to comply with these
constitutional and
legal obligations for most of its existence.
·
Total Membership figures per sector has to be submitted before 31
March of the following year. For the years 2001, 2002, 2003, 2004,
2005, 2006, 2007 and 2008 the figures were only received in August
and September of 2009.
·
The names and addresses of the appointed or elected “national
office bearers” were only submitted during 2009 after requests
from the Department.
·
Financial statements for 2008 are still outstanding.
The financial
statements submitted for 2000, 2001, 2002 and 2003, did not comply
with the requirements of the Act and a letter was
forwarded to the
union, stating that the statements were not audited by a qualified
auditor, and do not meet the requirements,
but to date the statements
were not corrected; and on several instances the auditor indicated
that he was not able to perform an
audit.
The Union thereafter
did not take the issue of non-compliance seriously as they ignored
letters from this office, and continued
to operate outside the ambit
of the constitution and the law. The statements and audit reports
that have been submitted is rejected
as it serves no purpose for the
members or for the Department. The audit reports have a number of
serious qualifications. This
clearly indicates that the union is not
following its constitution and that it has no financial control over
its affairs.
The
auditors in the qualified reports state:
‘
In these
circumstances we were unable to perform audit procedure or obtain all
the information and explanations we considered necessary
to satisfy
ourselves that proper accounting records have been maintained with
respect to employee costs. The union also did not
have a fixed asset
register.’
A major part of the
union’s income comprises of subscription fees received from
members, however there was no system of control
over such fees on
which they could rely upon for the purpose of their audit, and there
were no satisfactory auditing procedures
that they could perform to
obtain reasonable assurance that all fees received were properly
recorded”.
[9]
Regarding the reason that the organization has ceased to operate as a
genuine trade, the letter of the respondent stated the
following:
“
In addition to
what has been described above and which conduct can be regarded as
that of a union that has ceased to operate as
a genuine trade union,
I compare some of the activities with some of the guidelines for
trade unions:
Item 18(c)
of
the guidelines for registration of trade unions and employers’
organizations cites the employment of family members of
the officials
and office-bearers as one of the factors that indicates that the
trade union is operating for the gain of certain
individuals. In the
case of UPUSA this has been brought up several times from different
individuals.
From the information
at hand it is evident that this union is operated by family members
for gain. The following close family members
occupy prominent
positions within the Union, Mr Elphas Luthuli as the National
Organiser and National Chairperson, his wife Veronica
Luthuli is Vice
President and sometimes as Vice Chairperson, it is alleged that she
is now a National Treasurer, Thokozane Luthuli
and Cyril Luthuli
(alleged nephews to Elphas Luthuli) as Senior Officials of the Union
provided for in the Constitution.
The latest financial
statements that were submitted to the Department were also signed by
Mr E Luthuli as president of the union.
This is a clear indication
that there is a disregard for rules and regulation in this union. Mr
Luthuli is central to all activities
undertaken by the union and has
surrounded him by his relatives so that he can control the union and
manipulate it in the way that
he desires.
Item 21
of
the guidelines refers to the financial arrangements made with members
of a trade union on behalf of whom litigation, particularly
dismissal
disputes, is instituted is also an indication of whether the trade
union is genuine or operating for gain. It has been
established by
this office that the Union is representing non-members of the union
at a fee in dispute resolution institutions.
It is inconceivable
that a trade union which is supposed to safeguard or protect the
rights and advance the interests of its members
can violates them by
indicating that UPUSA cannot be held responsible for any consequences
members have suffered for participating
in an alleged unlawful
industrial action. This is another indication that this union was
never established to assist employees
during the time of need, but is
being run by one individual (Mr Elphas Luthuli) who can hire (family
members) and fire as he pleases.
From the above
discussion it is therefore clear that this is not an association of
employees but a family business and an association
for gain of
certain individuals.”
The
Applicable Legislation
[10]
In order to properly consider the merits of this appeal, it is
important to set out the legislation that has relevance to the
issues
at hand. Section 106 of the LRA deals with cancellation or
registration of trade unions and employers organisations. The
relevant subsection is (2A) (b) of the same section which states the
following:
“
(2A)
The Registrar may cancel the registration of a trade union or
employers organisation by removing its name from
the appropriate
register if the Registrar:
(a)
Is satisfied that the trade union or employers organisation is
not or has ceased to function as a genuine trade union or employers’
organisation, as the case may be; or
(b)
Has issued a written notice requiring the trade union or
employers’ organisation to comply with sections 98, 99 and 100
of
the LRA within a period of 60 days of the notice and the trade
union or employers’ organisation has despite the notice, not
complied with these sections
(2B)
The Registrar may not act in terms of subsection (2A) unless the
Registrar has published a notice in
the Government Gazette at least
60 days prior to such action:
(a)
Giving notice of the Registrar’s intention to cancel the
registration of the trade union or employer’s organization;
and
(b)
Inviting the trade union or employers’ organisation or
any other interested parties to make written representations as to
why the registration should not be cancelled.”
[11]
The question becomes what is a genuine trade union? Or put
differently when can it be said that a trade union or an employers’
organization has “ceased to function as a genuine
organization”? In this regard section 95(8) of the LRA is
relevant.
In terms of section 95(8) The Minister is empowered to
issue guidelines in consultation with NEDLAC regarding factors the
registrar
should consider in determining the genuineness of a trade
union or employers’ organisation. The Minister has indeed
published
such guidelines in the
Government Gazette under GNR
1446 in Government Gazette number 25515 of 10 October 2003.
Item 3 thereof provides as follows:
“
In order to
determine whether an organisation is genuine, it will be necessary
for the Registrar to examine the actual operation
of the
organisation…. In the case of an existing organisation,
attention will have to be paid to its actual activities and
functioning. In evaluating whether a trade union or employers
organisation is genuine, the Registrar must take into account all
relevant factors.”
[12]
Section 100 of the LRA
provides as follows:
“
(1)
Every registered trade union and every registered employers’
organisation must provide to the Registrar:
(a)
By 31 March each year, a statement certified by the Secretary
that it accords with its records showing the number of members as at
31 December of the previous year and any other related details that
may be required by the Registrar.
(b)
Within 30 days of receipt of its auditor’s report a
certified copy of that report and of the financial statement;
(c)
Within 30 days of receipt of a written request by the
Registrar, an explanation of anything relating to the statement of
membership,
the auditor’s report or the financial statements;
(d)
Within 30 days of any appointment or election of its national
office-bearers, even if their appointment or election did not result
in any changes to its office-bearers; and
(e)
30 days before a new address for service of documents will
take effect, notice of that change of address.
[13]
Sections 98 and 99 of the LRA place a duty on trade unions and
employer’s organisations to keep records of its income,
expenditure, assets and liabilities, in accordance with generally
accepted accounting practice principles and procedures. Further
to
have such financial statements audited. It also specifies the type of
records to be kept [Section 98(1) (b)(i) and (ii) of the
LRA and
Section 99].
Analysis
[14]
The appellant’s grievance regarding its deregistration is inter
alia the fact that the respondent issued a notice to
cancel its
registration without first complying with Section 106(2A) (b) of the
LRA. The appellant stated that prior to June 2009
the respondent did
not issue a notice calling upon it to comply within 60 days. I accept
that the notice in terms of Section 106
(2A) (b) of the LRA is a
different notice from that issued in terms of Section 106(2B) of the
LRA. A notice in terms of section
106(2A) (b) envisages a situation
where the Registrar has called upon the trade union or employers’
organisation to comply
with Sections 98, 99 and 100 of the LRA and 60
days has lapsed from the time that such notice was issued, and the
organization
has still not complied.
[15]
The question is whether the respondent had issued such a notice prior
to issuing a notice in terms of Section 106(2B) on the
9 June 2009.
The respondent does not address the issue in its answering affidavit
and arguments. I have however gone through the
record filed with this
court and the following is evident:
·
On the 30 March 2004, the respondent informed the appellant through a
registered
letter that in its 2001 financial statements, the auditor
was unable to conduct a proper and meaningful audit because of
insufficient
records and office administration to maintain proper
books. The appellant was further called upon to explain what steps it
intended
to take in order to rectify the situation.
[16]
Subsequent to the above letter the appellant did not respond within
the specified time or at all. The appellant also failed
to address
the questions raised by the respondent. On the 28 June 2004, the
respondent wrote another letter to the appellant regarding
its
financial statement for the year ending February 2003. The respondent
informed the appellant that the auditor’s report
does not
comply with Section 98(2) (b)(i) of the LRA and that the auditor’s
report indicated that since the inception of
the appellant, there
were no sufficient records and office administration to maintain
proper records. The appellant was called
upon to respond within 14
days and state how it intended to rectify the situation. No response
was given by the appellant to the
respondent.
[17]
In essence every year from 2001 the respondent issued the appellant
with a letter calling upon it to comply with Section 98
or 100 of the
LRA. I accept that such letters did not constitute notices in terms
of Section 106(2A) (b) of the LRA in that none
of them gave the
appellant 60 days within which to comply. The letter of the 23
January 2006 however was issued in accordance with
Section 106(2A)
(b) of the LRA in that it called upon the appellant to comply by no
later than the 31 March 2006. The letter further
reminded the
appellant that it is in its interest to comply to avoid cancellation
of its registration in terms of Section 106(2A)
of the LRA.
[18]
On the 10 October 2006, the appellant through its auditors caused a
letter to be written to the respondent responding to the
letter of
the 23 January 2006 by the respondent. In terms of the said letter,
an extension was being sought to file the financial
statements by the
25 October 2006. It is important to note that the extension was
sought only about 7 months after the deadline
for compliance,
indicating that there was no compliance with Section 100(a) (b) (c)
and (e) of the LRA by the 31 March 2006.
[19]
The appellant contends that it never received the letter dated the 23
January 2006. Further that the respondent did not remind
it in 2006
to comply with Sections 98, 99 and 100 of the LRA. It further denied
that the letter written by its auditors in October
2006 was a
response to the respondent’s request of the 23 January 2006.
The fact that this allegation was made in 2009 is
unfortunate. The
respondent has no duty to remind trade unions and employers’
organisations to comply every year. The only
obligations placed on
the respondent to inform trade unions or employers’
organisations to comply is in terms of Section
106(2A) (b) of the
LRA. It is indeed unfortunate that the letter written to the
appellant on the 23 January 2006 was the only letter
not received by
the appellant while all other correspondence issued to the appellant
by the respondent in the same manner was received.
This assertion is
rejected as improbable. I further find that the auditor’s
request for extension was occasioned by the same
letter, because none
of the previous letters were responded to simply because the
appellant was aware that the letter of the 23
January 2006 complied
with Section 106(2A) (b) of the LRA and that it has serious
implications for it.
[20]
It is correct that subsequent to the notice of the 23 January 2006
the respondent did not issue another notice until the 9
June 2009.
There is nothing in the LRA that suggest that the respondent should
cancel the registration of a trade union or employers’
organisation immediately upon its failure to comply, after a notice
in terms of Section 106(2A) (b) has been issued. The fact that
the
respondent did not issue the notice in terms of Section 106(2B) of
the LRA in 2006 does not mean that the respondent had waived
its
obligations in terms of Section 106(2A) of the LRA.
[21]
The question is whether the appellant complied with sections 98, 99
and 100 of the LRA, now that it has been established that
a Section
106(2A) (b) notice was issued prior to June 2009. None of the
appellant’s papers answers the question of whether
it complied
or not. There is no evidence to show that it complied at the time of
the cancellation of its registration on the 2
October 2009.
[22]
The issue of compliance with Sections 98, 99 and 100 of the LRA is a
legal requirement. The appellant therefore had a legal
duty to comply
with the said sections. From 1999 until 2003 the financial statements
submitted by the appellant did not comply
with Sections 98 or 100 of
the LRA. The auditor’s report was largely that there were no
proper records and there were no
proper record keeping systems in
place.
[23]
As stated above, Section 98 places an obligation on every registered
trade union and every registered employer’s organisation
to
keep books and records of its income expenditure, assets and
liabilities in accordance with generally accepted accounting
practice,
principles and procedures.
[24]
The
King Report III on Corporate Governance, Chapter 6
addresses
the issue of compliance with laws, rules, codes and standards.
Item
3 of chapter 6
states:
“
Corporate
governance is the expression of ethical values and standards. As such
compliance should also be understood to be an ethical
imperative for
the governance of companies…”
There
is no difference in terms of record keeping and reporting between a
company for gain and an orgnisation not for gain.
Item 4
states:
“
Compliance with
applicable laws should be understood not only in terms of the
obligations that they create, but also for the rights
and protection
that they afford.”
[25]
The obligations placed on trade unions and employers’
organisations in terms of Sections 98 and 99 of the LRA are intended
for the protection of the rights of members of the said
organisations. The respondent has been afforded monitoring powers in
terms
of section 100 of the LRA.
[26]
There would be no point to Section 100 of the LRA if Section 106 of
the LRA did not exist. The purpose of Section 106 (2A)
and (2B) is to
give powers to the Registrar to deal with those organisations which
fail to comply with Section 100 of the LRA.
[27]
Which brings me to the appellant’s argument regarding the
unconstitutionality of Section 106 and the guidelines issued
in terms
of Section 95(8) of the LRA. According to the appellant’s
argument, the fact that the Registrar has power to investigate,
accuse, prosecute and sentence is an infringement on the appellant’s
right to equality before the law conferred by Section
9(1) of the
Constitution.
[28]
The purpose of the guidelines is explained in clause 1 of published
Government Gazette 23611. These were further referred to
by the
Honourable Judge Francis
at paragraph 11 of his
judgement in the case of
NEWU v Minister of Labour & Others
supra. I will therefore not expand further on this issue save to
indicate that I concur with his decision when he states that the
said
guidelines and Section 106(2A) and (2B) of the LRA are not
inconsistent with the constitution.
[29]
The appellant contends that the respondent did not state the reasons
it was cancelling the registration prior to cancellation,
rather the
reasons were only given after they were demanded by the appellant.
The reasons were different from the ones given prior
to cancellation
of the registration of the appellant. Section 111(2) regulates when
and how the reasons should be given. Section
111(1) states that:
“
Within 30 days
of the written notice of a decision of the Registrar, any person who
is aggrieved by the decision may demand in writing
that the Registrar
provide written reasons for the decision.”
Section
111(2) states that:
“
The Registrar
must give the applicant written reasons for the decision within 30
days of receiving a demand in terms of subsection
(1).”
[30]
The appellant further argued that it was not invited to make written
representations subsequent to receiving the written reasons
from the
respondent on the 18 November 2009. The fact is that no such
procedure is provided for in the LRA. The written reasons
are issued
subsequent to a demand in terms of Section 111(1) of the LRA. The
reasons are meant to assist an aggrieved party to
decide whether it
wishes to appeal or not, they are further not meant to allow an
aggrieved party to persuade the Registrar.
[31]
A further question is whether the written reasons issued by the
respondent on the 18 November 2009 are the same reasons given
on the
2 October 2009 when the appellant was deregistered. The respondent
stated 3 reasons for cancelling the registration of the
appellant.
The reasons are:
·
The organisation has ceased to function in terms of its constitution.
·
The organisation has ceased to operate as a genuine trade union.
·
The organisation did not comply with the provisions of Sections 98,
99 and 100
of the LRA.
[32]
I have outlined in detail the reasons given by the respondent above.
These are the same reasons given on the 2 October 2009
and 18
November 2009. I will only deal with the responses to the reasons and
make an assessment as to whether or not the respondent
was correct to
take the decision to cancel the registration on the basis of the
information before him.
[33]
According to the respondent, the constitution of the appellant does
not provide for a position of National Chairman, yet Mr
Luthuli
occupies the position of National Chairman and National Organiser.
His wife Mrs Veronica Luthuli occupies the position
of National
Treasurer and they are both members of the Executive Committee of the
appellant. Other office-bearers are officials
of the union and not
members. Two of the senior officials are members of Mr Luthuli’s
family.
[34]
The above averments are not disputed by the appellant and it is
stated by it that there is a provision in its constitution
for a
position of Chairperson of the Branch General Meeting and a
Chairperson of all shop stewards meetings. Interestingly, none
of the
said provisions for chairpersons referred to by the appellant are
provisions for a National Chairperson. The position is
therefore not
provided for in the constitution and the position cannot exist simply
because a resolution was passed creating it.
It has to be included in
the constitution and the amended constitution should be duly
registered with the respondent. It was further
argued that
office-bearers are voted in terms of a secret ballot. If members
chose to vote for members of Mr Luthuli’s family
so be it.
[35]
The above argument however is short sighted in that it fails to take
cognisance of the fact that the said members of Mr Luthuli’s
family were employed and brought in as officials by him. They are
allowed to stand for election in executive positions even though
they
are officials and not members.
[36]
The appellant does not address the issue which was raised by the
respondent regarding the constitution submitted to an employer
–
Air Chefs (Pty) Ltd. In terms of the said constitution, which is not
the one approved and registered by the respondent:
clause 13.3 (a) of
the said constitution states:
“
In any legal
action taken by the union on behalf of the members, the union shall
deduct twenty (20) per cent from a member as compensation
in any
court ruling or in any settlement.”
[37]
According to the respondent, the above clause is not contained in the
constitution approved by the Department of Labour on
the 23 July
1998. The appellant merely stated that the constitution of the 23
July 1998 is its approved constitution in terms of
which it operates.
It did not say anything regarding whether or not the above clause is
contained in the constitution. The reason
of the respondent in that
regard stands unchallenged. The respondent’s contention is that
apart from the fact that the above
clause is unconstitutional, it
falls within those activities which indicate that a trade union is
not genuine but operates to enrich
certain officials without any
convincing explanation from the appellant regarding the above, and in
consideration of clause 21
of the Guidelines for Registration of
Trade Unions and Employer’s Organisations, issued in accordance
with section 95(8)
of the LRA and published under
GNR 1446 in GG
25515
, the conclusions drawn by the Registrar regarding the
genuineness of the appellant are justifiable.
[38]
Regarding the termination of the membership of some shop stewards of
the appellant, I agree that it is an internal matter of
the
appellant. The same applies to the dispute between Mr Abdallah, Mr
Xulu and the appellant. The dispute may well have arisen
as a result
of the fact that Mr Xulu and Mr Abdallah were not re-elected. The
information which the respondent relied upon in this
regard is not
conclusive and could not lead to a situation where the respondent is
“satisfied” that the appellant is
not a genuine trade
union.
[39]
The issue of non-payment of the settlement amount of one member to
her and the alleged deduction of certain amounts by the
appellant
from the said settlement amount lacks substance in my view. The
appellant has given a plausible explanation of the deductions.
An
amount of R300 000 was the settlement reached between parties.
The employer – Air Chefs (Pty) Ltd deducted R99 614.40
for
tax and paid it over to the South African Revenue Services (SARS).
The balance was paid into the account of the appellant by
error. This
was confirmed by the attorneys who had acted for Air Chefs (Pty) Ltd
at the time of the said settlement. The appellant
subsequently paid
the amount over to the employee. This ground is accordingly
dismissed.
[40]
The question remains however whether the decision of the respondent
to cancel the registration of the appellant was correct
in terms of
the powers given to him by the LRA and the conclusion he came to
after considering certain information provided to
him by the
appellant.
[41]
My conclusion is that the respondent’s decision was correct.
Even on the issues of non-compliance with Sections 98, 99
and 100 of
the LRA alone the appellant stood to be deregistered.
[42]
I am satisfied that the respondent, prior to cancelling the
registration of the appellant, properly invoked the provisions
of
Section 106(2A) (b). He further afforded the appellant sufficient
opportunity to comply with the law as it was obligated to
do, but the
appellant failed. The appellant cannot be allowed to continue
operating in circumstances where it completely disregards
the law and
its own constitution.
[43]
The appeal therefore stands to be dismissed. There is no reason why
the cost should not follow the results.
Order
[44]
I therefore make the following order:
The appeal is dismissed
with costs.
_________________________
Mbileni
AJ
Date
of Hearing
:
30
November 2010
Date
of Judgment
:
15
February 2011
Appearances
For
the Applicant
:
JS
Mphahlani
Instructed
by
:
Baloyi
Attorneys
For
the Respondent :
M Gwala
Instructed
by
:
State
Attorney