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[2015] ZALCJHB 93
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Apollis and Others v General Industries Workers Union of South Africa (J 423/15) [2015] ZALCJHB 93 (13 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
J
423/15
DATE:
13 MARCH 2015
Not
Reportable
In
the matter between:
JOHN
APOLLIS
..............................................................................................................
First
Applicant
ARTHUR
MPUTHI
.....................................................................................................
Second
Applicant
NOMSA
KHUMBULA
..................................................................................................
Third
Applicant
And
GENERAL
INDUSTRIES WORKERS UNION
OF SOUTH
AFRICA
............................................................................................................
Respondent
Date
heard: 3 March 2015
Delivered:
13 March 2015
JUDGMENT
RABKIN-NAICKER
J
[1] This
application was brought on an urgent basis on less than 48 hours’
notice. At the hearing of the matter the
court was informed
that the first applicant was no longer party to the application. As a
full set of papers was before court I
heard the matter as an
application for final relief. The prayers sought to be made an order
of court are the following:
1.
Directing that the rules of this Honourable court insofar as service
and filing as well as time limits are concerned be dispensed
with and
permitting that this matter be heard as one of urgency in accordance
with the provisions of Rule 8 of the Rules of this
Honourable Court.
2.
Declaring that the actions of the National Office Bearer Committee
(NOBC) of the respondent in initiating disciplinary
action against
the applicant's and thereafter dismissing the first applicant and
removing the second and third applicant from holding
office as branch
office bearers of the wits branch of the respondent and banning them
from holding a leadership position for a
period of 10 years with in
the respondent, directly violates the provisions of the Constitution
of the respondent;
3.
Declaring that the disciplinary action taken against the applicants
as aforesaid is null and void;
4.
Declaring that the first to third applicants and not the NOBC are in
terms of the Constitution of the respondent properly authorised
to
act as signatories of the wits branch bank account;
5.
Directing the respondent to restore the status quo ante.
[2] The matter is
brought in terms of section 158 (1) (e) of the LRA which provides
that this 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 or employers' organisation (as
the case may be); or
(ii)
section 26 (5) (b);”
[3] The LAC has
held that the above section: “clearly envisages a conflict
between, for example, a registered trade union
and its members about
any aspect of non-compliance with the union's constitution.”
[1]
The essence of this application is that the disciplinary process
against the applicants was not undertaken in terms of the union’s
constitution.
[4] The
applicants, branch office bearers (BOBS) of the Wits branch of the
union were charged with gross misconduct and bringing
the union into
disrepute on 25 September 2014 in respect of the following charges:
(a)
You committed gross misconduct when you unlawfully refused to pay the
salaries of the head office staff, when it was your duty
to do so,
from the 25
th
September 2014 until 10
th
of
October 2014 after the Labour Court gave instruction for them to be
paid.
(b)
You defied a reasonable and a legitimate direct order from the NOBC
instructing you to pay the head office staff salaries for
September
2014. In so doing you thereby put the name of the union into
disrepute in that:-
The
union was negative exposed to the Department of Labour which is our
registrar and the Labour Court which is our adjudicator
when the
staff members took their matters to these institutions for relief
against unlawful conduct.
(c)
Obstructing the work of the NOBC in carrying out its mandate from the
NEC when they wrote letters to the national companies
to have their
subscription paid to the Head Office Account.
(d)
You unconstitutionally took the NEC and its office bearers to the
Labour court interdicting them for implementing the NEC resolution
which you were part of when you have no powers to do so.
(e)
Unconstitutionally appointing attorneys as reported in your report
to the NEC of September 2014 when you have no powers to
do so.
(f)
Misusing the union funds by paying attorneys.
[5] The founding
papers aver that the wits branch is the largest and wealthiest branch
of the three branches of the union and commands
by far the biggest
income via subscriptions. The salaries of the national office which
includes the general secretary who is part
of the NOBC is paid by the
wits branch. A glimpse is given into the nature of the conflict
between members of the union when it
is averred that: “We have
never received proof from the national office that the other branches
are also paying their share
of their income to the national office”
The applicants contend that over the last six months the NOBC
attempted to appropriate
the funds of the branch for itself by
approaching companies that fall under the wits branch and who are in
terms of the constitution
required to pay subscriptions to that
branch and prevailed on them to pay the subscriptions into the
national office account.
[7] The
applicants’ case in as far as this matter is concerned can be
summarized as follows:
7.1
The decision to take disciplinary action against the applicants by
the NEC of the union was not competent in terms of the union’s
constitution;
7.2
A meeting of the NEC may only pass a motion after it is proposed
after it has been voted on by the meeting and decided by a
show of
hands. In this case it was moved by one branch and seconded by
another and not put to the vote by a show of hands;
7.3
The constitution confers the power to discipline shop stewards and to
engage and dismiss branch employees of the union first
and foremost
upon the Branch Executive Committee (BEC);
7.4
Oversight and review functions over the BOBs are first and foremost
conferred on the BEC;
7.5
The constitution provides that office bearers can only be removed
from office after they have had an opportunity to state their
case
personally at a BEC meeting.
Urgency
[8] This
application was brought on less than 48 hours’ notice. The
reason for this is set out in paragraph 65 of the founding
papers:
“
It is
submitted that the facts set out above establish the need for extreme
urgency and that for the Honourable Court to expect
proper notice to
be given to the other party will defeat the very purpose of bringing
this application as any delay afforded the
Respondent will only
provide them with the opportunity to defeat the processes of this
Honourable Court and the Legitimate rights
of the Second to Further
Applicant.”
[9] The lack of
particularity with regards to an explanation for the abridged period
is evident. It appears that what has propelled
the applicants into
action was that on 27 February 2015, on receipt of the outcome of the
disciplinary process the applicants were
informed that the branch’s
bank had changed the signatories to the wits branch account –
these new signatories were
members of the NOBC. The second
applicant then avers as follows:
“
In
doing this the bank acted arbitrarily and contra to the respondents
constitution whereby the wits branch is in control of its
financial
matters and not the NOBC. I then together with the other applicants
approached the bank to challenge this unilaterally
change. (sic) The
management of the bank then informed us that they would not change
the new signatories unless we told them to
freeze the account. We
were then left with no choice but to freeze the account.”
[10] In their
replying papers the applicants state that:
“
The
matter is clearly urgent as the bank has frozen the account and will
not release the funds until the Honourable Court either
determines
that NOBC structure of the Respondent has no authority to act as
signatories to the wits branch account or determines
that the
decision to remove and dismiss the First to Third Applicants is null
and void and that they should be restored to the
positions they held
status quo ante.
The
fact that the account is frozen and the wits branch is rendered
dysfunctional is good reason in itself to bring this matter
with 48
hrs.”(sic)
[11] A clearer
example of self–created urgency would be difficult to find. In
addition, further submissions on urgency in
the founding papers
contradict the averments recorded above i.e. that it was the
applicants themselves who instructed the
bank to freeze the account.
It is submitted in the affidavit that because the account is frozen
the branch is incapable of functioning
and attending to the needs of
its members and employees. It is further stated in the founding
affidavit that:
“
Although
the NOBC immediately took steps to appropriate the account which then
led to the bank to freezing the wits branch account,
they have not
put in place any financial mechanism and systems to ensure that the
branch can continue to function normally and
does not come to a
grinding halt.” (sic)
[12] In view of
the above, I cannot accept that this application was urgent but was
rather brought strategically after the applicants
themselves caused
the bank account to be frozen rendering the branch unable to meet its
obligations. In the event I am not going
to deal with the merits of
the matter.
[13] I therefore
order as follows:
Order:
1. The
application is struck off the roll.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicants:
David Cartwright Attorney
Respondent:
Bayi Attorneys
[1]
National Entitled Workers Union v Sithole & others (2004) 25 ILJ
2201 (LAC) at paragraph 10.