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[2015] ZALCJHB 126
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South African Transport And Allied Workers Union (SATAWU) v Zondo and Others (J 715/15) [2015] ZALCJHB 126; (2015) 36 ILJ 2348 (LC) (17 April 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J 715/15
DATE: 17 APRIL 2015
Reportable
Of interest to other
judges
In the matter between:
SOUTH AFRICAN TRANSPORT AND
ALLIED WORKERS UNION
(SATAWU)
.............................................................................
Applicant
And
LUCKY ZONDO AND 10
OTHERS
..................................................................................
Respondents
Heard: 16 April 2015
Delivered: 17 April 2015
Summary:
Urgent application for
interdict – union contending that shop stewards lawfully
expelled from union in terms of resolution
adopted by provincial
structure and no longer entitled to discharge duties and befits of
office. Shop stewards contending that
resolution ultra vires the
union’s constitution. Where union constitution prescribes
procedure for disciplinary action against
union office bearers, that
procedure must be followed. Resolutions adopted by union structures
that bypass provisions of the union’s
constitution invalid and
not a legitimate basis on which to expel union office bearer. Section
95(5) of LRA requires that constitutions
of trade unions prescribe
procedures, including appeals, against expulsion and removal from
office. Intention is to ensure that
union members, officials and
office bearers are protected against arbitrary exercises of power.
Jurisdiction – s 158 (1)
(e) (i) considered. Application
dismissed.
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an urgent application in
which the applicant (to which I shall refer as ‘the union’)
seeks a final order
to restrain the respondents, amongst other
things, from entering into and remaining in the applicant’s
offices, engaging
in any collective bargaining or consultation
meeting in the name of the union, participating in any union
activities, communicating
with union members, representing the union
or its members in any forum or tribunal, organising any strike or
other assembly under
the banner of the union, receiving or collecting
any funds for and on behalf of the union and intimidating,
threatening, harassing
and assaulting any officials or office bearers
of the union.
[2] At issue in these proceedings is
the status of the respondents and in particular, their status as
union members and shop stewards.
The union contends that the
respondents were lawfully expelled from the union by virtue of a
resolution adopted at a meeting of
the union’s Gauteng
provincial executive committee (PEC) held on 18 and 19 March 2015.
The relief sought and reflected above
is consequential on that
decision. The respondents contend that the resolution on which the
union relies is invalid and of no force
and effect and that they
remain in office as shop stewards and thus entitled to continue to
engage in the above activities. They
also contend that because
appeals against their expulsions remain pending, these proceedings
are premature and that the application
ought to be dismissed on that
basis.
[3] The application is brought in
tragic circumstances. Three days after deposing to the founding
affidavit, the deponent, Mr.
Chris Nkosi, the union’s
provincial secretary in Gauteng province, was killed in what is
widely speculated to be an assassination.
Press reports indicate that
Mr Nkosi died when he was hit by five bullets fired from a passing
motor vehicle. While it would be
premature to suggest that Mr Nkosi’s
death was directly related to the events that are the subject on the
papers before me,
the present proceedings have their roots in what is
clearly a major schism within the union and a clear inability of the
parties
to address and resolve their differences in a peaceful and
constructive manner.
Jurisdiction
[4] I deal first with the question of
jurisdiction. The respondents submit that their expulsion was a
consequence of their non-compliance
with a resolution adopted by the
union which prohibited its members from marching against the union.
They submit therefore that
the present proceedings do not concern any
non-compliance by them with the constitution of the union and
therefore does not fall
within the scope of s 158 (1) (e) (i) of the
Labour Relations Act (LRA).
[5] Section 158 (1) (e) (i) provides as
follows:
(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 the trade union
or employers’ organisation (as the case may be; or …
[6] Although this provision is located
in the section of the LRA that confers powers on this court (as
opposed to s 157 which more
specifically concerns this court’s
jurisdiction), provided that the process brought before the court
relates to a dispute
between a registered trade union (or employers’
organisation) and any one or more of its members concerning any
alleged non-compliance
with that body’s constitution, this
court has jurisdiction to hear the matter and to make any of the
appropriate orders,
including the granting of interdictory relief,
referred to in s 158 (1) (a). It is well established that whether the
court has
jurisdiction in any particular matter is to be by reference
to the pleadings or, as in this case, the affidavits filed by the
parties.
The founding affidavit in the present instance is predicated
on an alleged failure by the respondents to comply with the union’s
constitution and in particular, paragraph 9.2.3, which requires every
member to observe the provisions of the constitution and
not to act
in a way that is detrimental or prejudicial to the interests of the
union and its members. Further, the union relies
on paragraph 17.2 of
the constitution, which provides that shop stewards and shop stewards
committees are obliged to implement
the policies and decisions of the
national, provincial and local structures of the union and to do all
further things necessary
to advance the interests of the union. It is
specifically alleged in the founding affidavit that the respondents
have acted in
violation of both paragraph 9 and paragraph 17 of the
constitution, more particularly in that they have failed or refused
to comply
with a binding resolution adopted by union structures and
implement the lawful decisions represented by the resolutions
concerned.
In these circumstances, I am satisfied that the founding
affidavit makes out a case for an alleged non-compliance by the
respondents
with the union’s constitution and that this court
therefore has jurisdiction in terms of s 158 (1) (e) (i) to entertain
the
application.
Is the application premature?
[7] I turn next to the respondents’
submission that the application is premature on account of pending
appeals against the
decision to expel them, and that it should be
dismissed for that reason. Paragraph 42.5 of the union’s
constitution affords
any person found guilty by a disciplinary
committee a right of appeal to the CEC or any other body or grouping
appointed by the
CEC to hear the appeal. It is not disputed that the
respondents have submitted a letter, signed by all of them, to the
union’s
head office on 24 March 2015 in terms of which they
lodge appeals against the PEC’s decision to expel them. There
was some
debate during argument about the form and content of the
letter and whether it comprised a valid appeal – in my view,
that
is of no relevance to these proceedings. The fact remains that
the respondents have appealed against their expulsion and is all
that
need be determined for present purposes is whether that is a basis
for the application to be dismissed. The legal principles
are clear.
In Dennis v Garment Workers’ Union, Cape Peninsula
1955 (3) SA
232
(CPD) at 238B, the court said the following:
When the executive committee of a trade
union adjudicates upon disciplinary matters is acting as a domestic
tribunal with limited
powers. Those powers are defined by a contract,
the terms of which are generally set forth in a set of rules or in a
constitution.
As was said in Long v Bishop of Cape Town 4 S. 162,
tribunals which are set up by associations of individuals are not in
any sense
courts; they derive no authority from the Crown and have no
power of their own to enforce the sentences; the jurisdiction rests
entirely upon the agreement of the parties... However reasonable and
equitable it may be that the decision of a domestic tribunal
should
not be given effect to pending an appeal, such a rule cannot be
invoked unless provision is made therefore either expressly
or
impliedly in the constitution.
[8] There is nothing in the union’s
constitution, either expressly or impliedly, which provides that
pending the outcome of
any appeal lodged in terms of paragraph 42.5,
the decision that is the subject of the appeal should not be given
effect. The fact
of a pending appeal lodged by the respondents
against the decision to expel them is therefore no bar to the
granting of the relief
sought by the union.
Factual background
[9] The union’s case, in brief,
is that during a special meeting of the union’s central
executive committee (CEC) held
in August 2012, a resolution was
adopted concerning the consequences of certain conduct by members of
the union. The minutes record
the resolution in the following terms:
The CEC resolved that any member of
this union that will march against it, or take the union to court,
such person will have dismissed
him/or herself in the organisation,
all what the organisation must do is to assist that person to leave
by giving him expulsion
letter/or dismissal letter. Satawu will not
have money to take people to disciplinary hearing which have clearly
demonstrated that,
there are renegaded against the union. Such people
must be identify and expelled with immediately effect because it
become dangerous
to call this people in any disciplinary process,
because their plain is to assassinate our leaders (sic).
[10] The context within which the
resolution was adopted was explained from the bar – it was
apparently a consequence of a
judgment of the Constitutional Court
that imposed liability on the union for damage occasioned by the acts
of its members engaged
in marches and protests. (I assume the
reference is to South African Transport and Allied Workers Union &
another v Garvas
& others
[2012] ZACC 13.)
Be that as it may, on
10 March 2015 the respondents, together with others, participated in
a march to the union’s head office
to hand over a memorandum
that amongst other things, dealt with amongst other things their
dissatisfaction concerning disciplinary
action in the form of a
summary dismissal taken by the union against Mr Vusi Ntshangase, the
union’s Mpumalanga provincial
secretary. The union contends
that the march was unlawful and unconstitutional because it took
place without the union’s
prior permission or that of the
appropriate regulatory authority, and in violation of the union’s
constitution and the CEC’s
resolution.
[11] The same date, 10 March 2015, the
union addressed a letter to the respondents in the following terms:
Kindly take notice that you are
officially suspended from union activities for acting contrary to the
union Constitution, contrary
to the interest of the trade union and
its members, also committing an act of misconduct including, bringing
the trade union name
into disrepute.
You are not allowed to attend,
participate and/or represent SATAWU in any activities including
meetings.
Your employer is also advised
accordingly (sic).
[12] On 18 and 19 March 2015, the
union’s Gauteng PEC adopted a resolution, as I have indicated
above, to set aside the suspension
of the respondent since and to
substitute the suspension with their expulsion from the union. The
letter advising the respondents
of the resolution was addressed to
them on 23 March 2015 and reads in the following terms:
Kindly be advised that the Provincial
Executive Committee meeting held on the 18 and 19 March 2015 at Reef
Hotel resolved to expel
you from the trade union with immediate
effect.
The expulsion is informed about
violation of central executive committee decision/ resolution of
2012, and trade union Constitution.
We thus officially informing you that
your suspension is set aside and replaced with an expulsion and
advised you of your rights
to appeal to the CEC appeal committee
through the general secretary of the trade union (clause 42.5 of
SATAWU constitution).
We trust that you will find the above
in order (sic).
[13] As appears from this
correspondence, the union contends that the resolution to expel the
respondents was ‘informed’
or ‘founded’ by
the 2012 resolution adopted by the CEC. By that I understood the
union to mean that having marched
on the union’s head office,
the respondents brought themselves within the ambit of the 2012
resolution and thus visited on
themselves the severe consequences
that it foreshadowed.
[14] It is common cause that the
provisions of the union’s constitution which establish the
procedures to be adopted in disciplinary
matters were not observed.
The relevant provisions regulating disciplinary action against
members, office bearers, elected officials
and shop stewards are
contained in paragraphs 42 and 43 of the union’s constitution.
In broad terms, paragraph 42 provides
that these persons may be
disciplined by the union if they act in a manner contrary to the
constitution or the interests of the
union and its members, or commit
any other act of misconduct. The procedure established by paragraph
42.3 requires a disciplinary
committee to be convened by the CEC and
PEC. A PEC disciplinary committee is empowered to discipline members,
shop stewards and
sector office bearers. The disciplinary committee
may, if it believes that a charge brought against a person has been
satisfactorily
proven, remove that person from his or her office or
expel that person from the union, or suspend him or her from the
position
he or she holds or from membership of the union.
[15] The relevant disciplinary
committee is specifically enjoined to follow the procedure set out in
paragraph 42.4. That paragraph
requires at least seven days’
notice in writing of all charges, together with the time and place of
the disciplinary hearing.
The committee must satisfy itself, before
it proceeds to hear determine the charges, that the person charged is
present or that
it is reasonable to assume that notice of the hearing
was received and that the person concerned has no acceptable reason
for failing
to attend the hearing. The person charged must
specifically be afforded the opportunity to state his or her case
personally and
to call question witnesses, and is entitled to receive
written notice of the committee’s decision. Paragraph 42.5
establishes
a period an appeal procedure in terms of which any person
found guilty has a right of appeal to the CEC. On appeal, the person
found guilty of an offence may state his or her case personally,
question and call witnesses. The CEC is in part to confirm, vary
or
reverse the decision appealed against.
[16] As I have indicated, it is common
cause that the union did not follow the disciplinary procedure
established by paragraph 42
before it decided to expel the
respondents. The union relies on what it contends to be an exception
to the procedure established
by the constiution, in the form of the
resolution adopted by the CEC in March 2012.
Analysis
[17] The resolution adopted by the
Gauteng PEC reads as follows:
The PEC resolve to change the
suspensions of cadres who partook to the March on 10 March 2015 to
head office to be expulsion and
consistency meaning all who partook
to the March including other provinces must be expelled and CEC
delegates to push for expulsion
in the next CEC.
[18] The PEC’s resolution makes
no reference to the August 2012 resolution by the CEC, but I will
assume for present purposes
that, as the union contends, the former
was ‘founded’ in the latter.
[19] The fundamental difficulty I have
with the case of exceptionalism on which the union relies (i.e. that
the August 2012 resolution
by the CEC creates an exceptional
circumstance in terms of which union members are automatically
expelled, regardless of the provisions
of the constitution) is that
the August 2012 resolution stands so starkly and fundamentally at
odds with the provisions of the
constitution. In effect, the
resolution relies on the notion that by one’s conduct, one can
dismiss oneself. Prior to the
introduction of a new labour
dispensation following the Wiehahn Commission’s recommendation
in 1979, this was a commonly
accepted manner for employers to deal
especially with absence from work, and to avoid any consequences that
might flow from the
act of dismissal. It was quickly replaced by the
rule that any notion of automatic self- dismissal was inimical to the
conception
of fairness embodied in labour legislation, and that it
was for an employer, at its initiative, to terminate employment
provided
there were justifiable grounds to do so, after following a
fair procedure.
[20] The very purpose of paragraph 42
of the constitution and the procedure that it establishes is to
afford an opportunity to be
heard before any decision to expel a
member from the union is taken. Indeed, s 95(5) of the LRA requires
that the constitution
of any trade union that intends to register
must establish the circumstances in which a member will no longer be
entitled to the
benefits of membership, provide for the termination
of membership and provide for appeals against the loss of the
benefits of membership
or against termination of membership itself
and prescribe a procedure for those appeals and determine the body to
which those appeals
may be directed. The section provides further
that a constitution must provide for appeals against any removal from
office of office
bearers, officials and trade union representatives
and prescribe a procedure for those appeals and determine the body to
which
those appeals may be made. The registrar may not register a
trade union in circumstances where a constitution fails to meet these
criteria. The only conclusion to be drawn from these provisions, and
especially the audi alterem partem requirement that they embody,
is
that the drafters of the legislation were concerned to acknowledge
the significance of the consequences of expulsion from a
union or
removal from office and to protect union members, officials, office
bearers and representatives against the arbitrary
exercise of power
by union structures.
[21] There is nothing in the union’s
constitution which entitles any of the union’s structures to
dilute the rights
established by paragraphs 42 and 43 of the
constitution simply by adopting a resolution which has the effect of
entirely bypassing
those provisions and imposing a penalty of
‘self-dismissal’ where the union’s only and
residual role is to ‘assist
that person to leave’ by
issuing an expulsion or dismissal letter. A right afforded by the
constitution can be enhanced or
diminished only by an amendment to
the constitution, as provided in paragraph 49. The August 2012 CEC
resolution does not purport
to amend the union’s constitution,
and I did not understand either party to contend that either in form
or in effect, that
is what it sought to achieve. (In any event, as I
have indicated, the provisions of s 95(5) of the LRA would preclude
the introduction
into a union constitution of the sort contemplated
by the 2012 CEC resolution.) The union’s constitution,
comprising as it
does a contract between the individual members of
the union, bound in a voluntary association in terms of which powers
are granted
to bodies or individuals by mutual agreement to which all
have subscribed, is not subservient to resolutions adopted by
structures
such as the CEC or PEC. Where the latter adopt resolutions
that stand in conflict with the provisions of the constitution, they
are ultra vires and of no force and effect.
[22] To the extent that the union
suggested during argument that the CEC is entitled in terms of
paragraph 28.4 of the constitution
to broadly manage the affairs of
the union and to do all lawful things that in the opinion of the CEC
promotes the interests of
the union, its aims and objectives and
policies, that may be so, but it does no more than beg the question
of what is lawful. A
general power to manage the union’s
affairs and promote its interests cannot trump a specific right to be
heard in the terms
provided by paragraph 42 before any expulsion from
the union is given effect.
[23] It was also suggested during
argument that the respondents had failed, since 2012, to raise any
objection to the CEC’s
resolution and that they were
accordingly precluded from raising any argument as to its validity.
In my view, this submission has
no merit. There is no evidence on the
papers before me that the respondents were either party to the
adoption of the resolution,
or that they in any specific way
acquiesced in it. In any event, for the reasons reflected above, the
resolution was ultra vires
the union’s constitution and invalid
in 2012, and it remains invalid in 2015.
[24] I was referred to the case of
Engineering Workers SA v Abrahams and others
1982 (2) SA 326
(SECLD)
in which a trade union was afforded relief similar to that sought in
the present circumstances. In that case, members of
the union’s
Port Elizabeth branch executive committee were interdicted from
holding themselves out as the branch committee
of the applicant
union, occupying the union’s premises, operating its branch
bank account and managing the affairs of the
branch concerned in
circumstances where the union’s national executive council had
adopted a resolution to suspend the branch
executive committee. The
resolution was adopted in circumstances where the branch committee
was engaged in advanced discussions
to break away from the union and
to amalgamate with a breakaway from another union in the same sector.
The court held that since
the respondents had admitted the acts on
which the applicant union had relied for reaching its decision, and
given that the issues
raised fell within a provision of the union
constitution that entitled the national executive council to review
decisions of a
branch executive committee, the respondents should be
restrained from holding themselves out as the Port Elizabeth branch
committee
of the applicant union. The consequential relief sought by
the applicant was accordingly granted. To the extent that the union
in the present instance relies on this authority to suggest that once
the respondents have admitted, as they have done, the acts
on which
the PEC relied in reaching its decision to expel them, that the union
is entitled to the relief it seeks even in the absence
of a
disciplinary hearing, this submission overlooks the distinction drawn
by the court between discipline against an individual
and what the
facts of the case concerned, i.e. the suspension of the branch
executive committee. The court referred specifically
to the union’s
constitution which provided that no member may be suspended, fined or
expelled ‘unless he has been afforded
an opportunity to state
his case personally at a meeting of the branch executive committee,
of which is received not less than
seven days’ notice in
writing’ The court observed (at 333C) that while the
constitution made provision for hearing
an individual suspended from
membership of the union it did not do so in the case of the
suspension of the branch committee. The
court stated, in regard to
the case of an individual:
It is right that this protection should
be given to the individual, because suspension from the union may
materially affect the
status of the individual and his freedom to
obtain employment. In the case of the committee, an act committed by
it, which is contrary
to, or in conflict with, the constitution may
have effects which strike at the very foundations of the union
[25] In other words, had disciplinary
action been taken against the respondents individually, the result
would have been very different.
As individuals, they had the right to
be heard before any disciplinary action was taken against them. In
the present instance,
on the union’s own version, the
disciplinary action taken against the respondents was taken on an
individual basis. Indeed,
one of the objections raised to the notice
of appeal lodged by the respondents is that it was single notice
signed by all of them,
i.e. a collective response. That being so, I
fail to appreciate how the Engineering Workers case is of any
assistance to the union;
it is certainly not authority for the
proposition that where disciplinary action is taken against
individual union members, the
fact that they admit to having
committed acts inimical to the interests of the union can be said to
excuse any failure to comply
with a disciplinary procedure
established by the constiution .
[26] For these reasons, in my view, the
resolution adopted in August 2012 by the CEC is ultra vires the
union’s constitution.
It follows that the resolution adopted by
the union’s Gauteng PEC in terms of which the respondents were
expelled from the
union is of no force and effect. It follows too
that the respondents retain, at least until some legitimate form of
disciplinary
action is taken against them, their offices as shop
stewards and that they remain entitled to discharge the functions of
that office
as prescribed by the union’s constitution, its
policies and the terms of relevant collective agreements. The
application
accordingly stands to be dismissed.
[27] This judgment is not to be
construed in any way as condoning the conduct of Mr Lucky Zondo, the
first respondent and deponent
to the answering affidavit, and the
other respondents. The papers before me disclose conduct that ought
appropriately to be the
subject of investigation by the SAPS. The
replying affidavit sets out in some detail specific comments and
threats made by certain
of the respondents in social media between 10
and 13 April 2015. These and others, I was informed from the bar,
have apparently
been seized by the relevant authorities in the course
of the investigation into the murder of Mr. Nkosi.
[28] Finally, in relation to costs,
this court has a broad discretion in terms of s 162 of the LRA to
make orders for costs according
to the requirements of the law and
fairness. There are two considerations that militate against an order
for costs. First, there
is the conduct of the respondents to which I
have referred. They do not come to court with clean hands. Secondly,
as I have already
observed, this application is the consequence of a
schism that no doubt has its origins in matters that extend beyond
the immediate
affairs of the union and its members. The extent of the
rift between the competing factions of the union is illustrated by
correspondence
attached to the papers, where the union’s
president is on record as having addressed letters to major employers
in the sector
advising them that he had been unaware of expulsions
that form the subject of these proceedings, and had received the
information
with shock. The correspondence advises those concerned
that in terms of the union’s constitution, shop stewards and
office
bearers who have committed an offence ought to have been
disciplined in terms of the union’s constitution and that the
union’s
national office bearers ought to be given an
opportunity to investigate the entire matter and that the purported
expulsions should
be ignored. A similar letter was addressed to the
national office bearers by the provincial chairperson, Gauteng,
albeit with a
disclaimer to the effect that his letter ought not to
be construed as disrespecting or defying the decisions of ‘higher
structures.’
I make these comments not in relation to the
merits of the present application, but to illustrate the nature and
extent of the
crisis that currently exists in the union’s
ranks.
[29] In those cases where the effect of
an order for costs might cause prejudice to an existing
collective-bargaining relationship,
this court has traditionally been
hesitant to make such orders. The present circumstances are no
different. There are two factions
of the union, each at war with the
other. In my view, the goal of industrial peace, which is after all
one of the fundamental purposes
of the LRA, would be best promoted
and served by making no order as to costs.
I make the following order:
1. The application is dismissed.
André van Niekerk
Judge
APPEARANCES
FOR THE APPLICANT: ADV. JS MPHAHLANI
INSTRUCTED BY M. M BALOYI ATTORNEYS
FOR THE RESPONDENT: ADV. MM ZONDI
INSTRUCTED BY MHLUNGU ATTORNEYS