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[2013] ZALCJHB 105
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Elsdon v South African Red Cross Society and Another (J1048/13) [2013] ZALCJHB 105 (4 June 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J1048/13
In the matter between:
GERALDINE DAWN ELSDON
........................................................................
Applicant
and
THE SOUTH AFRICAN RED
CROSS SOCIETY
...............................
First
Respondent
NQE DLAMINI
................................................................................
Second
Respondent
Heard: 21 May 2013
Delivered: 04 June
2013
Summary: Application
for urgent relief to interdict continuation of disciplinary
proceedings and set aside suspension and exclusion
from workplace of
Secretary-General of organisation by its President. Relief based on
claim that President had been removed from
office by vote of no
confidence. Dispute over constitutional status that could not be
resolved on papers and matter therefore decided
on Respondents’
version. Application refused.
JUDGMENT
BENJAMIN, AJ
Introduction
[1] This is a judgment in
an urgent application brought by Geraldine Dawn Elsdon (“Elsdon”)
who has been employed since
1 October 2012 as the Secretary General
of the First Respondent, the South African Red Cross Society (“the
Society”).
The Second Respondent is Mr Nqe Dlamini (“Dlamini”),
the elected President of the Society. As will appear from the
judgment, there is a dispute between the parties as to whether
Dlamini is still the President.
[2] On 25 January 2013,
Elsdon received a letter from Dlamini calling on her to make
representations as to why she should not be
suspended pending a
formal disciplinary inquiry. She did not make representations as the
reasons for the suspension and inquiry
had not been provided to her.
Elsdon was not suspended and continued to perform her duties. On 7
February 2013, Elsdon received
notification of a disciplinary inquiry
to take place on 14 February 2013 in Durban. The disciplinary inquiry
duly commenced on
14 February 2013 and continued on 21 February 2013
and 4 March 2013 at which point it was postponed without a further
date being
set.
[3] On 10 April 2013, she
received a further letter from Dlamini advising her that the
Governing Body was considering suspending
her from performing her
duties pending the outcome of the unresolved disciplinary process and
that she could make written representations
by 12 April 2013. On 11
April 2013, the applicant’s version continues, she was placed
on suspension by Dlamini. This is the
first of several areas of
conflict between the parties’ versions: Dlamini contends that
letter of suspension, while dated
11 April 2013, was in fact sent on
13 April 2013 and the respondents’ annexed fax receipts to
indicate this.
[4] Despite the letter of
suspension, Elsdon continued working at the Society’s national
offices in Pretoria and Dlamini sent
a further suspension letter on 7
May. She continued working and when Elsdon arrived on 13 May 2013,
the premises had been locked
to prevent her gaining access to her
office. The security personnel at the entrance informed her that
Dlamini had instructed them
to prevent her entering the offices.
Although Elsdon initially contended that this was an “unlawful
lock out”, it was
common cause between the parties that what
occurred was not a lock out, as defined in the LRA, but an exclusion
from the workplace.
Elsdon continued her duties, working from home.
[5] Elsdon was advised in
a letter by Dlamini that the disciplinary inquiry would continue on
16 May 2013. Elsdon came to court
to restrain the continuation of
these disciplinary proceedings. She also sought relief in respect of
the suspension and her exclusion
from her office. However, her papers
were only served on 17 May 2013 and the matter was argued on 21 May
2013. Elsdon did not attend
the disciplinary inquiry and counsel for
the Respondents stated in court that the disciplinary inquiry had
continued and been concluded
in her absence on 16 May.
[6] The Society is an
incorporated association not for gain which operates in terms of a
Constitution adopted by Special Resolution
and registered with the
Registrar of Companies in 22 May 2006. It has the status of a company
not having a share capital.
[7] In terms of its
Articles of Association, the highest authority of the Society is the
General Assembly which consists of two
delegates from each branch,
two delegates from each Provincial Council as well as the President,
the Vice President and the National
Treasurer. The General Assembly
must meet at least annually. The Articles of Association provide for
the requisition of additional
meetings of the General Assembly by 20
or more of its members. The requirements for holding a requisitioned
meeting are set out
in detail in the Articles of Association. The
responsibility for the management of the affairs of the society lies
with the Governing
Body. The members of the Governing Body include
the President, the Vice President, the Honorary National Treasurer,
between 3 and
5 members elected from the General Assembly and the
Secretary General who is an ex-officio member.
[8] The Society is
clearly an organisation in turmoil and there is a total disagreement
between the Applicant and the Respondents
as to the current
governance of the Society. On the Applicant’s version, a
requisitioned meeting of the General Assembly
was held on 6 April
2013 at which a vote of no confidence in the Governing Board was
passed and an interim Governing Board was
appointed to manage the
society until the next meeting of the General Assembly. Elsdon played
an active role in arranging the meeting
of the 6 April. Her version
of these events was confirmed on affidavit by the President elected
at the meeting of the 6 April,
Mr L.W. Madisha. In contrast, Dlamini
contends that the meeting of 6 April 2013 took place in violation of
the requirements of
the Articles of Association for holding a
requisitioned meeting of the General Assembly and that the meeting
was not quorate. Accordingly,
he contends, the Governing Body on
which he serves and not the “interim” Governing Body
appointed by the General Assembly
on 6 April 2013 remains responsible
for the management of the Society. As a result, two Governing Bodies
purport to run the organisation.
[9] The versions of the
Applicant and the Respondents are diametrically opposed. There is a
clear conflict of facts which cannot
be resolved on the papers and
there would be no purpose in referring this matter to oral evidence
as the issue would be academic
by the time the matter could be set
down. Mr Mosime for the applicant contended that I should decide the
case on the basis of the
status quo being, in his words, the
governing structure put in place as a result of the requisitioned
General Assembly of 6 April
2013 because Dlamini had not brought
proceedings to challenge the constitutional status of the meeting of
6 April. Mr Edy for the
respondents contended that the issue must be
determined on the Respondents’ version in keeping with the well
established
approach first articulated in the
Plascon-Evans
Paints (Tvl) Ltd v Van Riebeck
Paints (Pty) Ltd
.
1
[10] Dlamini’s
affidavit contains a detailed account of what he asserts are the
breaches of mandatory procedures in terms
of which the meeting should
be held as well as the factual basis for his argument that the
meeting was not quorate. He sets out
his allegations in considerable
detail. In a matter such as the present in which the versions of the
parties are mutually destructive,
I am required to decide whether to
grant relief in urgent proceedings to the Applicant on the basis of
the Respondents’ version.
Accordingly, I must decide this case
on the assumption that the meeting of the General Assembly on 6 April
2013 was unconstitutional
and that the Governing Body presided over
by Dlamini remains vested with responsibility for managing the
Society.
[11] This disposes of the
claim for relief in respect of the disciplinary inquiry as this was
premised on the claim that Dlamini
was not entitled to direct the
continuation of the proceedings on 16 May because he was no longer
President. The proceedings have
now been completed and, once the
outcome is known, the applicant will be in a position to, properly
advised, bring any challenge
to its outcome that she may consider
appropriate.
[12] I now turn to her
argument that her suspension was unlawful and should be set aside.
Elsdon contends that as an ex-officio
member of the Governing Body,
her employment as Secretary General could only be terminated in
accordance with clause 5.10 of the
Articles of Association. This
provides that members of the Governing Body can only be suspended or
removed from office in terms
of a by-law established by the General
Assembly which only permits removal from office on a resolution of no
confidence by the
whole of the Governing Body or by the General
Assembly. Her contention is that even though she is an employee, once
she became
member of the Governing Body, she acquired the same
acquired the protection of clause 5.10 in addition to her rights as
an employee.
Accordingly, she argues that she could only be suspended
by resolution of no confidence by the Governing Body or the General
Assembly.
The Respondents contend that this procedure only applies to
elected officials and not an ex-officio member of the Governing Body,
such as the Secretary General who is an employee of the Society.
[13] I am in agreement
with the contention of the Respondents. It is not uncommon in
organisations for senior officials such as
General Secretaries to be
ex-officio members of the Board alongside elected office bearers such
as Presidents and Vice Presidents.
However, these persons remain
employees and the issue of their suspension or termination continues
to be regulated by their contract
of employment and the relevant
labour legislation. The Applicant contends that the requirement to
comply with the relevant clause
of the Articles of Association
constitutes the clear right entitling the applicant to have the
suspension set aside. Mr Mosime
for the applicant conceded that if
this argument failed, there was no basis for the suspension to be set
aside in these proceedings.
[14] The final issue that
I must decide is whether I can make any order in respect of Dlamini’s
action in barring Elsdon from
her office. Mr Edy for the respondent
argued that this would amount to spoliatory relief, which should not
be granted in urgent
proceedings. That question aside, it would
appear that the issue of the exclusion is incidental to that of the
suspension. As there
is no basis for ruling on the lawfulness of the
suspension, it would accordingly not be appropriate, to make any
ruling in respect
of the exclusion.
[15] The entire
application brought by Elsdon must therefore be dismissed. It was
common cause between the parties that costs should
follow the result.
In argument, Mr Edy for the respondents requested a special costs
order in respect of counsel’s travel
from Durban to
Johannesburg and incidental expenses in that regard. I am not
persuaded to make such an order. The first respondent
is a national
organization with offices throughout the country. The applicant was
entitled to bring these proceedings in Johannesburg
and therefore
travel costs of counsel from Durban are not an appropriate part of
the costs order.
[16] In conclusion, I
wish to say something about the context of this dispute. The Society
is an important national institution
affiliated to a major
international humanitarian organisation. It is extremely sad that its
noble endeavours should be imperilled
by a civil war between factions
in the organisation. Hopefully, there is sufficient goodwill
surrounding the Society and its goals
for those rifts to be resolved
by negotiation rather than litigation. However, I do wish to record
that this decision is not a
finding as to who is entitled to exercise
the constitutional mandate to run the Society or as to the
correctness of the position
of either faction. If the parties do not
allow sense to prevail, those questions will have to be resolved in
more drawn-out and
painful proceedings.
[17] Accordingly I make
the following order:
1. The application is
dismissed with costs.
_______________
Benjamin, A J
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant: Mr K
Mosime,
Instructed by: Strauss
Daly Attorneys
For the Respondent: Mr C.
Edy,
Instructed by: Norton
Rose South Africa.
1
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at
634 E–635 C.