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[2015] ZALCJHB 273
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Chauke v Food And Allied Workers Union and Others (J 702/15) [2015] ZALCJHB 273 (26 August 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J 702/15
DATE:
26 AUGUST 2015
Not
Reportable
In the matter
between:
CHAUKE, KHAZAMULA
NORMAN
...................................................................................
Applicant
And
FOOD AND ALLIED
WORKERS
UNION
...............................................................
First
Respondent
NAZO,
ATWELL
......................................................................................................
Second
Respondent
MNGUNI,
RAYMOND
..............................................................................................
Third
Respondent
MASEMOLA,
KATISHI
..........................................................................................
Fourth
Respondent
PHAKEDI,
MOLEKO
.................................................................................................
Fifth
Respondent
OLIVER,
MARK
.........................................................................................................
Sixth
Respondent
Heard: 26 August
2015
Delivered: 26
August 2015
Summary:
(interdict- s158 (1) (e) (i) of the LRA- ultra vires action)
REASONS
FOR THE ORDER
LAGRANGE J
Introduction
1. In this
application, the following order was made:
1.1. The Rules
relating to the forms and manner of service are hereby dispensed with
and this matter is dealt with as one of urgency.
1.2. The unlawful
resolution taken during the meeting of the first respondent’s
Gauteng provincial executive council on 2
and 3 August 2015,
purportedly removing the applicant from his position as the first
respondent’s Gauteng chairperson and
as delegate to the first
respondent’s national executive council is set aside.
1.3. The Applicant
as a duly elected delegate be permitted to attend and participate in
the meeting of the national executive council
scheduled to take place
on 27 and 28 August 2015 or any subsequent meeting called for the
same purpose.
1.4. The respondents
are interdicted from implementing the aforesaid unlawful resolution.
1.5. The first
respondent is ordered to pay the costs of this application.”
2. At the hearing of
the matter, I undertook to provide brief written reasons which are
set out below.
Urgency
3. The respondent
was warned of a possible application on 20 August 2015 unless the
Gauteng Provincial Executive Committee (‘the
PEC’)
decision of 2 and 3 August 2015 purportedly removing the applicant as
Gauteng provincial chairperson and delegate to
the union’s
National Executive Committee (‘ the NEC’ ) was revoked.
The application itself was filed on 21 August
2015 and it is apparent
from a letter from the respondent’s General Secretary on the
same day that the respondent was not
prepared to accede to the demand
and would not allow the applicant to attend the NEC meeting scheduled
to start tomorrow. A further
email from the respondent late that
night indicated the respondent’s intention to oppose the
application. However, by the
time proceedings commenced this morning
and by the time they ended, no formal opposition had been noted and
there was no appearance
for the respondents.
4. The issues raised
in the application, on the face of it, are not ones that the
respondent would not have been in a position to
respond to before
this morning’s hearing, as its own correspondence also
indicates. I am satisfied that the matter is sufficiently
urgent and
that the respondent had sufficient opportunity to oppose the
application if it wished to.
Merits
5. For the purposes
of my decision, it was not necessary to consider every challenge
raised by the applicant to the PEC decision,
as a few of the grounds
raised render that decision ultra vires the respondent’s
Constitution.
6. Firstly, the
applicant was elected as provincial chairman and as a delegate to the
NEC at a Provincial Congress held in August
2014 in terms of the
powers given to such a body under clauses 15.5.2.5 and 15.5.2.6
respectively of the Constitution. Clause 16.6
of the Constitution
deals with the powers of the Provincial Executive Committee and none
of those provisions empowers the PEC to
remove the applicant from the
offices he was elected to by the Provincial Congress.
7. Secondly, the PEC
meeting of 2 and 3 August 2015 was irregularly convened, contrary to
the provisions of clause 16.2 of the Constitution
which requires the
chairperson to call meetings in consultation with other provincial
office bearers, except in exceptional circumstances
where a majority
of PEC members request such a meeting in writing.
8. Thirdly, and
assuming but without deciding in favour of the respondent that the
ballot purportedly removing the applicant from
his positions was
properly held, the questions posed on the ballot form failed to
provide PEC members with the option of voting
against either or both
of the motions tabled at the meeting, leaving possible dissenters
only with the option of spoiling their
ballot or not casting a vote.
It is inconceivable that a vote in the form of a ballot could be
validly conducted without the option
of voting against a motion. It
is not necessary to consider if it was also irregular to include both
motions in the same ballot.
Accordingly, the ballot was invalid.
9. Consequently, I
am satisfied that the applicant has demonstrated a clear right to
relief and there is also no reasonable alternative
remedy available
to him other than to invoke his rights in terms of
section 158
(1)(e)
(i) of the
Labour Relations Act 66 of 1995
.
Costs
10. The matter was
unopposed and normally would not give rise to an adverse cost order
against the respondents. However, in this
instance notwithstanding a
decision by my brother Gush J, in case number C 562/2015 handed down
on 10 July 2015 in which he also
found that the Western Cape PEC of
the union did not have the power to countermand election of NEC
delegates by a Provincial Congress,
the respondent proceeded to
attempt to do the same at the Gauteng PEC meeting at the beginning of
this month, compelling the applicant
to incur unnecessary legal
expenses in setting aside a decision that the respondents ought to
have realised it would suffer the
same fate as in the case mentioned.
Secondly, there was evidence of an email indicating that it was a
strategy of the respondent
to wear the applicant and others fighting
to retain their elected positions by compelling them to litigate
until they exhausted
their funds. In these circumstances, there is
good reason to make an adverse cost award despite the lack of formal
opposition.
Lagrange J
Judge of the
Labour Court of South Africa
APPEARANCES
APPLICANT:
Instructed by: L
Hollander
Cowan Harper
RESPONDENTS: No
Appearance