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[2012] ZALCJHB 157
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Mphage and Others v South African Municipal Workers Union (J 3139/12) [2012] ZALCJHB 157; (2013) 34 ILJ 1764 (LC) (11 December 2012)
7
REPUBLIC
OF SOUTH AFRICA
the labour court of South
Africa, JOHANNESBURG
JUDGMENT
Reportable
Case
no: J 3139/12
In the matter between:
CAROLINE
JEANNY MPHAGE
.............................................................................
1
ST
Applicant
DICK
MAKENA
.....................................................................................................
2
ND
Applicant
THEMBA
XAKAZA
................................................................................................
3
RD
Applicant
BERFORD
RAMMUTLA
.......................................................................................
4
TH
Applicant
ABEL
MOTHIBE
.....................................................................................................
5
TH
Applicant
JACOBETH
JACKIE SRITSANE
...........................................................................
6
TH
Applicant
MDUDUZI
MAHANO
..............................................................................................
7
TH
Applicant
ERIC
MABUZA
.......................................................................................................
8
TH
Applicant
ELIZABETH
SIBULAYI
..........................................................................................
9
TH
Applicant
SYLVIA
MANAMELA
...........................................................................................
10
TH
Applicant
SIPHO
JOBE
........................................................................................................
11
TH
Applicant
MVELELI
GUNTU
.................................................................................................
12
TH
Applicant
BUYSIL
MAJOLA (SKOSANA)
...........................................................................
13
TH
Applicant
And
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
..............................................
Respondent
Heard:
07 December 2012
Date
of Judgment: 11 December 2012
Summary:
Urgent application- interdicting suspension of shopstewards by the
union. Court lacks jurisdiction to entertain the matter-
not
“employment or labour relations matter as defined by Section
157 of the LRA.
_________________________________________________________________________
JUDGMENT
Molahlehi J
Introduction
[1] The applicants are all employees
of the Ekurhuleni Metropolitan Municipality and also members of the
respondent, a trade union
registered in terms of the
Labour Relations
Act of 1995
. Collectively the applicants are part of the local
structures of the respondent, being the local shop steward council.
They each
serve in various positions in the shop steward council.
[2] The applicants instituted the
present application on an urgent basis in terms of which they seek to
have their the suspension
by the respondent on 23 November 2012
declared as being “invalid, unlawful and of no legal force and
effect and setting the
same aside, alternatively, uplifting the same
with immediate effect.”
[3] It would appear from
the founding affidavit of the applicants that there had been conflict
concerning various issues relating
to the appointment of delegates of
the provincial executive committee (PEC). The conflict concerned in
particular the appointment
of delegates who were to attend the PEC
meeting. According to the applicants the respondent failed to comply
with the provisions
of its constitution. The other complaint
concerned the failure by the regional office bearers to call regional
shop stewards council
meetings.
[4] In seeking to address
their concerns the applicant addressed letters to the various
structures of the respondent, including
the respondent itself. The
applicant further says that because the respondent failed to attend
to the grievances they requested
to attend a meeting of the
respondent which was convened for 20 November 2012. The reason for
requesting to attend the meeting
was to place before the respondent
their complaints and concerns that had been placed by the local
structures and the shop stewards
committee in Ekurhuleni region.
[5] Although the PEC was
not pleased with the approach adopted by the applicants it did allow
them to attend the meeting. In the
meeting the applicants made
certain demands regarding who was to attend the meeting. The
respondent rejected the proposals and
instructed the applicants to
leave the meeting.
[6] On 27 November 2012
the respondent issued the applicants with letters of suspension
pending the finalisation of an investigation.
It was for this reason
that the applicants instituted the present application.
[7] In opposing the
application the respondent contends that this court does not have
jurisdiction to entertain the matter. It was
argued on behalf of the
respondent that the only way that the applicants could have brought
the claim within the purview of the
Labour court was if they had
formulated their cause of action as arising from the infringement of
Freedom of Association.
[8] It was further argued
on behalf of the respondent that the court does not have jurisdiction
because the dispute arose in the
context where the relationship is
not based on employment relationship where if that was the case the
question that would have
arisen would have been whether the employer
had infringed the rights of the employees.
[9] The respondent
further argued that the applicant's claim stands to fail because the
applicants have not in the founding affidavit
dealt with the issue of
the alternatively relief.
[10] At Paragraph 9.2 of
the answering affidavit, the respondent suggests that the alternative
remedy lies in the applicants raising
the issue of the suspension
before the CEC which is meeting on 5 December 2012. It is common
cause that this was communicated to
the applicant's attorneys of
record.
[11] The other point
raised by the respondent is that the court should not consider the
application because the applicants came
to court with “dirty
hands”. The respondent submitted in this respect that the
applicants interrupted a properly constituted
meeting of the PEC and
therefore it cannot be expected that the respondent should stick to
the letter of the constitution when
the others did not.
Jurisdiction
[12] The relevant
section in as far as the jurisdiction of the court is concerned is
section 157
of the
Labour Relations Act, which
reads as follows:
“
(1)
Subject to the Constitution and section
173, and except where
this
Act
provides
otherwise, the Labour Court has exclusive jurisdiction in respect of
all matters that elsewhere in terms of
this
Act
or
in terms of any other law are to be determined by the Labour Court.
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the
Republic
of South Africa, 1996, and arising from -
(a) employment and from
labour relations;
(b) any
dispute
over the constitutionality of any executive or administrative act or
conduct, or any threatened executive or administrative act
or
conduct, by the State in its capacity as an employer; and
(c) the application of
any law for the administration of which the
Minister
is
responsible.“
[13]
In his submission on behalf of the applicants Mr Scholtz, contended
that this court has jurisdiction to entertain the applicants’
claim on the basis of
section 157
of the
Labour Relations Act read
with
section 1
,
3
,
4
and
8
of the LRA
1
.
He also relied on the decisions in
Chirwa
v Transnet Ltd and others
2
Botha v Gensec Assert
Management (Pty) Ltd and NEHAWU v University of Cape Town and others
3
[14] In my view the issue
that has arisen between the parties, does concern employment or
labour relation matter. The applicants
are not employees of the
union, but had voluntarily associated themselves with the union, for
the purposes of advancing and protecting
the interests of their
members who are employees.
[15] The cases which the
applicant relied on in support of their contention that this court
has jurisdiction are distinguishable
from the facts of this case. The
courts in those cases were dealing with the issues related to
employment and labour relations.
In the NEHAWU matter for instance
the court was dealing with the validity of the resolution taken by
the university council concerning
the retrenchment of employees –
an issue which there can be no doubt relates to both employment and
labour relations.
[16] Similarly in Chirwa
the Constitutional Court was dealing with a dismissal dispute which
by its very nature is related to "employment
and labour
relations" as envisaged in
section 157
of the
Labour Relations
Act.
[17
] The main issue in
that case was whether the Labour Court has exclusive jurisdiction to
deal with or labour related matters. In
the present matter the
applicants are not employees of the respondent and there is no
evidence before this court that the fact
that the applicants are
suspended as shop stewards, by the respondent is likely to lead to
their suspension as employees of Ekurhuleni.
[18] In my view, on the
facts and the circumstances of this case assuming jirisdiction will
amount to interfering in the domestic
affairs of a trade union. This
would in a sense undermine the fundamental principle of the autonomy
of the government of trade
unions. The fundamental aspects of the
autonomy of trade union government is that the internal decisions are
taken on the basis
of the democratic principle of majority rule.
[19] Trade unions are
voluntary association, where members freely associate and elect those
to occupy the position in the leadership.
If members are unhappy
about the leadership they have a right to remove them through the
ballot box. In a sense that is an alternative
remedy available to the
applicant in the present instance. The other basis upon which the
applicants claim stand to fail is that
instead of using the
democratic provisions of the union’s constitution, they decided
to undermine that and interrupted the
meeting of the respondent.
[20] The applicants are
now seeking a relief on the averment that in suspending them the
respondent acted unlawfully in that it
failed to comply with the
provisions of the constitution. It is for the above reasons that I
believe that the applicants’
application stand to be dismissed.
As concerning the costs I am of the view that the application was
misconceived and unnecessary,
the applicants could have withdrawn the
application when they received information that the CEC was to
consider the matter at its
meeting on 05 December 2012.
[21] In the
circumstances, I see no reason why costs should not follow the
results
Order
[22] In light of the
above the following order is made:
1. The applicants’
application is dismissed.
2. The applicants are to
pay the costs of the respondent.
_________________________
Molahlehi J
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant:
Scholtz Attorneys
For the Respondent:
Cheadle Thompson Haysom Inc
1
Section
1
reads as follows: ‘the purpose of this Act is to advance
economic development, social justice, labour peace and the
democratisation
of the workplace by fulfilling the primary objects
of this Act, which are -(a) to give effect to and regulate the
fundamental
rights conferred by section 27 of the Constitution; (b)
to give effect to obligations incurred by the Republic as a member
state
of the International Labour Organisation; (c) to provide a
framework within which employees and their trade unions, employers
and employers’ organisations can -(i) collectively bargain to
determine wages, terms and conditions of employment and other
matters of mutual interest; and (ii) formulate industrial policy;
and
(d)
to promote -(i) orderly collective bargaining; (ii) collective
bargaining at sectoral level; (iii) employee participation
in
decision-making in the workplace; and (iv) the effective resolution
of labour disputes.’ Section 3 reads as follows:
‘any
person applying this Act must interpret its provisions -(a) to give
effect to its primary objects; (b) in compliance
with the
Constitution; and (c) in compliance with the public international
law obligations of the Republic.’ Section 4
reads as follows:
‘(1) every employee has the right -(a) to participate in
forming a trade union or federation of trade
unions; and (b) to join
a trade union, subject to its constitution. (2) Every member of a
trade union has the right, subject
to the constitution of that trade
union -(a) to participate in its lawful activities; (b) to
participate in the election of any
of its office-bearers, officials
or trade union representatives; and (c) to stand for election and be
eligible for appointment
as an office-bearer or official and, if
elected or appointed, to hold office; and (d) to stand for election
and be eligible for
appointment as a trade union representative and,
if elected or appointed, to carry out the functions of a trade union
representative
in terms of this Act or any collective agreement. (3)
Every member of a trade union that is a member of a federation of
trade
unions has the right, subject to the constitution of that
federation - (a) to participate in its lawful activities; (b) to
participate
in the election of any of its office-bearers or
officials; and (c) to stand for election and be eligible for
appointment as an
office-bearer or official and, if elected or
appointed, to hold office.’ Section 8 reads as follows: ‘every
trade
union and every employers’ organisation has the right
-(a) subject to the provisions of Chapter VI - (i) to determine its
own constitution and rules; and (ii) to hold elections for its
office-bearers, officials and representatives; (b) to plan and
organise its administration and lawful activities; (c) to
participate in forming a federation of trade unions or a federation
of employers’ organisations; (d) to join a federation of trade
unions or a federation of employers’ organisations,
subject to
its constitution, and to participate in its lawful activities; and
(e) to affiliate with, and participate in the affairs
of, any
international workers’ organisation or international
employers’ organisation or the International Labour
Organisation, and contribute to, or receive financial assistance
from, those organisations.’
2
2008
2 BLLR 97
(CC)
3
2007
BLLR 819
(LC).