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[2015] ZALCJHB 187
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SASEGWU v Registrar of the Labour Relations (JS750/14) [2015] ZALCJHB 187; (2015) 36 ILJ 3149 (LC) (25 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS 750/14
Reportable/Not Reportable
In the matter between:
SASEGWU
Applicant
and
THE REGISTRAR OF THE LABOUR
RELATIONS
Respondent
Heard:
27 January 2015
Delivered: 25
June 2015
Summary: Application
to review and set aside the decision of the Registrar of Labour
Relations refusing to register
the applicant a trade union.
JUDGMENT
Molahlehi, J
Introduction
[1]
This
is an application to review and set aside the decision made by the
respondent, the Registrar of Labour Relations in terms of
which the
registration application of the applicant as a trade union was
refused. The applicant also seeks a declaratory order
to declare the
Registrar’s decision not to grant it a registration certificate
null and void.
[2]
The
order is sought in terms of section 158(1) (a) (iii) (iv)
[1]
and
section 158(1) (j) of the Labour Relations Act 66 of 1995 (“LRA”).
Section 158(1)
(j) of the LRA.
[2]
Background Facts
[3]
The
applicant is the South African Security and General Workers Union
(SASEGWU), a trade union that applied to have its name recorded
as
such in the register of trade unions by the Registrar in terms of the
LRA.
[4]
The
respondent is the Registrar of the Labour Relations designated as
such by the Minister of Labour. In terms of s 95 of the LRA,
in order
to succeed in an application for registration a trade union has to
show that:
(a)
It
has adopted a name that meets the requirements of subsection (4);
[3]
(b)
It
has adopted a constitution that meets the requirements of subsection
(5) and (6);
[4]
(c)
It
has an address in the Republic; and
(d)
It
is independent.
[5]
The
trade union applying for registration has to further show that it is
not under the direct or indirect control of any employer
or
employers’ organisation and it is also free of any interference
or influence of any kind from any employer or employer’s
organisation.
[6]
Section
95 (7) of the LRA provides that:
“
The
registrar must not register a trade union or an employers’
organisation unless the registrar is satisfied that the applicant
is
a genuine trade union or a genuine employers’ organisation”.
[7]
Section
96 of the LRA requires that an application for registration of a
trade union should be made on a prescribed form that has
been
properly completed, be accompanied by a copy of its constitution and
any other information that may assist the Registrar to
determine
whether or not the trade union meets the requirements for
registration.
[8]
In
addition, the Registrar must require any other information that may
assist him or her in considering the application. If satisfied
that
the application for registration as a trade union has satisfied all
the above requirements including any additional information
that had
been requested, the Registrar is obliged to register such a trade
union by entering its name into the register of trade
union.
[9]
If
not satisfied that the applicant’s application meets the
requirements for registration, the Registrar must notify the
applicant’s trade union of his reasons for not being satisfied
with the application. In addition to informing the applicant
of the
reasons for not registering it, the Registrar has to give the
applicant 30 days’ notice within which to address the
issues
and concerns that may have been raised in the notice.
[10]
Failure
by the applicant to remedy the defects specified in the notice will
result in the Registrar having to refuse registration
of such a trade
union.
The grounds of review
[11]
The
applicant contends that the Registrar acted irrationally and/or
unreasonably in refusing to register it. It is further contended
that
the refusal on the part of the Registrar to register the applicant is
extremely prejudicial as the applicant cannot represent
its members
in the Commission for Conciliation, Mediation and Arbitration
(“CCMA”) as well as the collective bargaining
processes.
The Registrar’s decision
[12]
After
the submission of the application for registration as a trade union
the Registrar addressed a letter to the applicant dated
04 April 2014
wherein the applicant was advised that its application was being
considered in terms of section 95 and 96 of the
LRA and the
guidelines published by the Minister of Labour in terms of the law.
The letter further states that:
1.
“
In
considering a new application for registration, the Registrar must
take into account other factors such as the formation of the
applicant, activities of the applicant and membership of the
applicant.
2.
In
order to enable this office to determine whether the applicant
complies with the Act and is a genuine trade union, the following
information should be submitted for consideration within 30 days of
the date of this letter.
2.1
Proof
of paid-up membership for the last three months as well as the names
and contact details and addresses of the companies where
the
employees who are members of the trade union are employed with.
2.2
The
names and work addresses of the office bearers and officials of the
trade union and copies of their ID documents.
2.3
Contracts
of employment signed with the officials of the trade union.
2.4
Signed
attendance register of the members who have attended the inaugural
meeting.”
[13]
After
indicating the above requirements the letter then informed the
applicant that it was notified that its application did not
comply
with the requirements of s 96(4) of the LRA and that it was given 30
days to comply.
[14]
The
applicant responded to the above letter in an undated letter
(annexure SAS5) were in it states the following:
“
We
acknowledge receipt of your email dated 04
th
April 15 2014 (sic).
Please
attached find annexures:
A.
Contract/s
of employment of officials
B.
Attendance
register
C.
Paid
up membership for three months
D.
Id
copies of national office bearers and workplace addresses.”
Evaluations/Analysis
[15]
It
is apparent that the Registrar was of the view that the applicant did
not comply with the requirements of registration. It was
for that
reason that the applicant’s application for registration was
refused.
[16]
The
reasons for refusing registration it appears from annexure “SAS2”
of the applicant’s founding affidavit. The
reason is that the
meeting founding the applicant took a resolution to appoint an
interim leadership which as no basis in the union’s
own
constitution. This effectively means that no leadership was elected
for the applicant since the constitution does not provide
for interim
leadership.
[17]
The
other problem is that the constitution was not adopted by the members
of the applicant.
[5]
It
emerged during the site visit and verification process conducted by
the officials of the department of labour on the applicant’s
office, that the constitution was circulated to members in various
provinces for discussion. According to the applicant the constitution
was thereafter adopted by members of the applicant who are in the
Gauteng Province only, yet the applicant has membership throughout
the country.
[18]
It
seems to me that the Registrar cannot be faulted for failing to apply
his mind to register the applicant when regard is has to
the
following: There was no election conducted of the office bearer by
the general membership of the applicant. There was also
no adoption
of the constitution, and, as it will appear later in this judgment
there was no adoption of the name, which to any
reasonable decision
maker exercising his or her powers properly in terms of the of the
provisions of the LRA would have arrive
at the same conclusion as the
one reached by the Commission in the present matter. The action taken
by the Registrar in refusing
to register the applicant in my view
does not in any manner affect the object of the LRA.
[19]
The
applicant failed to provide its three months bank statement despite
the request by the Registrar to do so. The bank statement
was
required to verify and establish if there were members paying the
membership fees to the union. It was necessary to satisfy
the
Registrar that the applicant was able to operate as a trade union and
more importantly operate as an association not for gain.
In my view
the Registrar correctly rejected the letter from the bank as
unsatisfactory as what it did was to show that the applicant
has
opened a bank account and nothing more
[20]
Another
important point that supports the decision of the Registrar not to
register the applicant is that despite the allegation
that members
pay subscription and that receipts had been issued consequent
thereto, the applicant failed to produce the same when
requested to
do so by the Registrar. It has not been disputed that all the 56
application forms which the applicant provided to
support its
application, had attached thereto pieces of papers reflecting an
amount of R40.00. According to the Registrar if indeed
the money was
paid and received by the applicant there would be a record of the sum
of at least R6, 720.00 representing the total
amount paid as
reflected in the pieces of papers multiplied by three (3) months.
Invariably if the applicant was managing its affairs
as would be
expected that amount would have been deposited into the applicant’s
bank account and there would be records to
that effect.
[21]
I
have already indicated somewhere else in this judgment that the other
issue which the Registrar had with the applicant’s
application
is the adoption of a name. There is no evidence of the applicant ever
adopting a name. What appears from the applicant’s
papers is
that here were three names which were recommended.
[22]
The
other point which the Registrar took into account in arriving at the
decision not to register the applicant has to do with the
attendance
register of the meeting which had been convened by the applicant.
Although the record reveals that 570 members attended
the meeting,
the verification conducted by the officers of the Registrar revealed
to the contrary that only 22 members attended
on 17 November 2013.
[23]
In
light of the above discussion, I find that the applicant has failed
to make out a case for an order directing the Registrar to
act
otherwise than he did in refusing to register the applicant. Put in
another way there is no wrong done by the Registrar which
undermine
the primary object of the LRA. I am of the view that the applicant’s
application stands is to be dismissed for
the reasons set out above.
[24]
I
am of the view that there is no reason why costs should not follow
the result.
Order
[25]
In
the premises the applicant’s application is dismissed with
costs.
________________
Molahlehi, J
Judge of the Labour
Court Johannesburg
Appearances:
For the Applicant:
Union Official
, S Kabelane
For the Respondent:
Adv. M Gwala
Instructed
by:
The State Attorney
[1]
In
terms of s 158(1)(a) (iii) and (iv) of the LRA, the Labour Court has
the power inter alia to make orders directing the performance
of an
act which when implemented will remedy any wrong done and given
effect to the primary objects of the LRA. The Court may
further in
terms of the same section make declaratory orders.
[2]
S
158(1) of the LRA gives the Court the power to deal with all matters
necessary or incidental to performing its function in terms
of the
Act or any other law.
[3]
Section
95 (4) of the LRA reads as follows: Any trade union or employers’
organisation that intends to register may not
have a name or
shortened form of the name that so closely resembles the name or
shortened form of the name of another trade union
or employers’
organisation that it is likely to mislead or cause confusion.
[4]
Section
95 (5) and (6) of the LRA reads as follows:
“
The
constitution of any trade union or employers' organisation that
intends to register must-
(a) state that the trade
union or employers' organisation is an association not for gain;
(b) prescribe
qualifications for, and admission to, membership;
(c) establish the
circumstances in which a member will no longer be entitled to the
benefits of
membership;
(d) provide for the
termination of membership;
(e) provide for appeals
against loss of the benefits of membership or against termination of
membership, prescribe a
procedure for those appeals and determine the body to which those
appeals may be made;
(f) provide for
membership fees and the method for determining member-ship fees and
other
payments by members;
(g) prescribe rules for
the convening and conducting of meetings of members and meetings of
representatives of
members, including the quorum required for, and the minutes to be
kept of,
those meetings;
(h) establish the manner
in which decisions are to be made;
(i) establish the office
of secretary and define its functions;
(j) provide for other
office-bearers, officials and, in the case of a trade union, trade
union
representatives, and define their
respective functions;
(k) prescribe a
procedure for nominating or electing office-bearers and, in the case
of a trade union,
trade union
representatives;
(l) prescribe a
procedure for appointing, or nominating and electing, officials;
(m) establish the
circumstances and manner in which office-bearers, officials and, in
the case of a
trade union, trade union
representatives, may be removed from office;
(n) provide for appeals
against removal from office of office-bearers, officials and, in the
case of a
trade union, trade union
representatives, prescribe a procedure for those appeals and
determine
the body to which those
appeals may be made;
(o) establish the
circumstances and manner in which a ballot must be conducted;
(p) provide that the
trade union or employers' organisation, before calling a strike or
lock-out, must
conduct a ballot of
those of its members in respect of whom it intends to call the
strike or lockout;
(q) provide that members
of the trade union or employers' organisation may not be disciplined
or
have their membership
terminated for failure or refusal to participate in a strike or
lock-out if-
(i) no ballot was held
about the strike or lock-out; or
(ii) a ballot was held
but a majority of the members who voted did not vote in favour of
the strike or lock-out;
(r) provide for banking
and investing its money;
(s) establish the
purposes for which its money may be used;
(t) provide for
acquiring and controlling property;
(u) determine a date for
the end of its financial year;
(v) prescribe a
procedure for changing its constitution; and
(w) prescribe a procedure by which it
may resolve to wind up.”
S 95(6)
“
The
constitution of any trade union or employers' organisation which
intends to register may not include any provision that discriminates
directly or indirectly against any person on the grounds of race or
sex.
[5]
See
annexure SAS 10 to the founding affidavit.