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[2015] ZALCCT 44
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Chauke and Others v Food And Allied Workers' Union and Others (C377/2012) [2015] ZALCCT 44 (28 May 2015)
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Of
interest to other judges
case
no: C329/15
In the matter between:
CHAUKE, KHAZAMULA
NORMAN
First Applicant
GCWENSA, BONGANI
Second Applicant
MBEKI, MONWABISI
Third Applicant
GIDANA MANDLA
Fourth Applicant
MKHOMBO, STHEMBISO
Fifth Applicant
KHUMISI, ISHMAEL
Sixth Applicant
MDAKANE, MOTSAI
Seventh Applicant
BREDA, JACKIE
Eighth Applicant
XWAZI, SONGEZILE
Ninth Applicant
MTHATI, BASIL
Tenth Applicant
and
FOOD AND ALLIED
WORKERS’ UNION
First Respondent
NAZO, ATWELL
Second Respondent
MNGUI, RAYMOND
Third Respondent
MANOTO, ELIZABETH
Fourth Respondent
MASEMOLA, KATISHI
Fifth Respondent
PHAKEDI, MOLEKO
Sixth Respondent
OLIVER, MARK
Seventh Respondent
Heard
:
15
MAY 2015
Delivered
:
28 MAY 2015
Summary:
Urgent application in terms of section 158(1)(e)(i); whether
expulsion of the applicants compliant with
union’s
constitution.
JUDGMENT
RABKIN-NAICKER
J
[1]
In this urgent application the applicants seek an order:
1.1
Declaring unlawful the purported decision by the Union's National
Office Bearers
expelling them the applicants as members and removing
them from their positions as union office bearers;
1.2
Setting aside that purported decision; and
1.3
Ordering the union to pay the costs of the application.
[2]
It was common cause between the parties that this court has
jurisdiction to hear the matter in terms of section 158(1)(e)(i)
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); ….”
[3]
All of the applicants are members in good standing of the First
Respondent (the Union). The first to fifth applicants and the
eighth
to tenth applicants are duly elected Provincial Office Bearers (POBs)
of the Union. All of the applicants are shop stewards.
The second to
seventh respondents are National Office Bearers (NOBs) of the Union.
They occupy the following offices: the president,
first deputy
president, second deputy president, the general secretary, the deputy
general secretary and the national treasurer.
[4]
In a letter dated 6 February 2015, signed by the deputy general
secretary on behalf of the NOBs,
the applicants
were informed as follows:
“
SUBJECT:
ALLEGED SERIOUS AND UNACCEPTABLE BEHAVIOUR AND CONDUCT AS A MEMBER &
LEADER OF THE ORGANISATION
Dear
Comrade;
1.
It has come to the attention of the
NOBs that you have organized / planned; coordinated, attended and
participates in an unconstitutional
meeting in Kwa Zulu Natal
involving certain Union Leaders and staff members, conspiring and
planning against the Union and its
leadership.
2.
This conduct and behavior is viewed
in a VERY serious light by the Union, it is a cause for serious
organizational challenges including
instability, division; disunity
and basically a state of a self – made paralysis and ultimately
collapse or destructions,
breach and violation of union Constitution,
policies and standing decisions, thus not in the interest of the
union and seriously
disrupting the organization.
3.
Your are therefore requested and
given an opportunity to explain and account in writing as to why the
Union should NOT charge and
disciplinary actions against yourself and
this should reach writer by no later than Monday 09
th
February 2015 at 14:00pm.”
[5]
The above letter was the beginning of a process which saw the
expulsion of the applicants from the Union. When the parties first
approached this court on the 6 May 2015, I issued an order by
agreement, which included that the expulsion of the applicants as
members and office bearers of the union stands suspended pending the
finalization of this application. The said expulsions, should
they
stand, are still subject to appeal to the NEC. The respondents did
not take the point that internal remedies had not been
exhausted.
[6]
The parties dispute the ambit of the court’s power in a matter
such as this. For the respondents it was argued that
this
court’s jurisdiction (in terms of section 158(1)(e)(i)) “and
thus its powers” are limited to a consideration
of disputes
concerning the alleged non-compliance by a union with its
constitution. In addition, it was submitted that the court
may not
hear a review under the common law i.e. the determination of a
dispute in terms of section 158(1)(e)(i) is limited to granting
contractual remedies only. The applicants submit that the court may
declare the expulsions invalid on the basis of common law review.
First, I will consider if the respondents have complied with the
provisions of the union’s constitution in the ways in which
they have expelled the applicants.
[7]
In reading the constitution, I am mindful of t
he
reformulation of the correct approach to the construction of
documents, and of contracts in particular, by the Supreme
Court
of Appeal in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[1]
in which Wallis JA wrote:
“…
.consideration
must be given to the language used in the light of the ordinary rules
of grammar and syntax; the context in which
the provision appears;
the apparent purpose to which it is directed and the material known
to those responsible for its production.
Where more than one meaning
is possible each possibility must be weighed in the light of all
these factors. The process
is objective, not subjective.
A sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike results or
undermines the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation
to substitute what
they regard as reasonable, sensible or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument
is to cross the divide between
interpretation and legislation; in a contractual context it is to
make a contract for the parties
other than the one they in fact made.
The 'inevitable point of departure is the language of the provision
itself', read in context
and having regard to the purpose of the
provision and the background to the preparation and production of the
document.”
[8]
While acknowledging that this Constitution is drafted in compliance
with the provisions of the LRA, it is also necessary for
the court to
recognise the legal nature of the Union as set out in M
coyi
and Others v Inkatha Freedom Party; Magwaza-Msibi V Inkatha Freedom
Party
2011 (4) SA 298
(KZP)
where it was stated:
“
In
Garment Workers' Union v De Vries and Others
1949 (1) SA 1110
(W) the
basic principles and manner of approach were expounded as follows at
1129:
'In considering questions
concerning the administration of a lay society governed by
rules, it seems to me that a Court must
look at the matter broadly
and benevolently and not in a carping, critical and narrow way. A
Court should not lay down a standard
of observance that would make it
always unnecessarily difficult — and sometimes impossible to
carry out the constitution.
I think that one should approach such
enquiries as the present in a reasonable commonsense way, and not in
the fault finding spirit
that would seek to exact the uttermost
farthing of meticulous compliance with every trifling detail, however
unimportant and unnecessary,
of the constitution. If such a narrow
and close attention to the rules of the constitution are demanded, a
very large number of
administrative acts done by lay bodies could be
upset by the Courts. Such a state of affairs would be in the highest
degree calamitous
— for every disappointed member would be
encouraged to drag his society into Court for every
trifling failure
to observe the exact letter of every regulation.'
Where
certain provisions in a constitution are fairly open to two
constructions, the one having the more convenient result will
be
followed (see Deutsche Evangelische Kirche zu Pretoria v Hoepner
1911
TPD 218
at 232). Similarly, in Ward v Cape Peninsula Ice
Skating Club
1998 (2) SA 487
(C) at 500I – 501C it was held
that in cases of doubt the constitution of a voluntary association
should be interpreted so
as to lead to preservation of rights, rather
than their destruction, and to a result convenient to its
members.”
[2]
[9]
The Constitution defines an Office Bearer as meaning: “any
person who is elected to an office in the union, and who may
act as a
spokesperson or representative of the union at the Branch, Provincial
or National level, as the case may be.” The
NOBs’
duties and functions are set out in clause 21 of the Constitution and
are in general, to manage the affairs of the
Union in between
National Executive Council (NEC) meetings. The powers of the NOBs are
set out in clause 21.3 of the constitution
as follows:
“
21.3
POWERS OF THE NATIONAL OFFICE BEARERS
21.3.1 The National
Office Bearers (NOBs) have powers less than those of the National
Executive Council (NEC) in principle.
21.3.2 The NOBs
shall manage the affairs of the union, including taking policy
decisions and actions, subject to prior approval
and/or post
endorsement of the NEC.
21.3.3 The NOBs do
not have powers to alter, amend or repeal policies, as this is the
specific competence of the NEC, and
the constitution, as this is the
competence of the National Congress.
21.3.4 The NOBs
shall process recruitment, selection and appointment of the
candidates to fill vacant positions and take occupation
subject to
the NEC endorsement.
21.3.5
The NOBs shall implement the NEC decisions, make recommendations to
the NEC, and seek mandate from and/or endorsement
of the NEC.”
[10]
The composition of the NEC is not confined to Office Bearers and is
provided for in clause 20.1 as follows:
“
20.1
COMPOSITION
The NEC shall composed of
the President, 1
st
Deputy President, 2
nd
Deputy
President, General Secretary, Deputy General Secretary, Treasurer and
20.1.1 Two (2) delegates
from every Province up to ten thousand (10,000) members;
20.1.2 Four (4) delegates
for every Province between ten thousand (10,000) and twenty thousand
(20,000) members;
20.1.3
Six (6) delegates for every Province with more than twenty thousand
(20,000) members.”
[11]
Clause 20.6.11 specifically provides that the NEC has the power to:
“
suspend
any BEC, PEC or Office-Bearer or members for violations of provisions
of the Constitution or in the interests of the Union;
and
to take over the management of the affairs of any Branch or Province
until a BC or PC can be held and a new committee and or
Office
Bearers can be elected.
” (my
emphasis)
[12] Clause 24 of the
union’s constitution governs the removal from office of Office
Bearers and shop stewards. The clause
provides
inter alia
as
follows:
“
REMOVAL
OF OFFICE BEARERS FROM OFFICE, OFFICIALS AND SHOP STEWARDS
24.1
An Office Bearer, official or shop steward may be removed from office
if he/she”
24.1.1
Infringes any provision(s) of this Constitution;
24.1.2
Acts in any manner, which is detrimental to the interests of the
Union.
24.2
No Office Bearer, official or shops steward may be removed from
office unless he/she has been afforded
an opportunity to state
his/her case personally or in writing to the
WGM/BEC, PEC or NEC
as the case may be
.
24.3
An Office Bearer, official or Shops Steward who has appeared before
the
applicable body
and who is dissatisfied with the decision of the body concerned shall
have the right to appeal as follows…….”
(my
emphasis)
[13]
The charges against the applicants were purportedly brought in terms
of Clause 25.2 of the Constitution and read as follows:
THE
MATTER WITH WHICH YOU HAVE BEEN CHARGED WITH ARE:
1.
Violating the Union Leadership Code of Conduct and 2005 August NEC
Declaration
a. In
that you have, as an individual and part of a group, attended and
participated in an unconstitutional meeting
and not sanctioned by the
Union held in Kwa Zulu Natal.
b. In
that you were party to a destructive caucus/es or clique/s,
destructive factions, cabals and programs that
seeks to cause
disunity, divisions and hostility within the Union.
c. Your
actions are against and/or in violation of the provisions of the
Leadership Code of Conduct And the 2005
August NEC Declaration.
2.
Infringing The Provisions Of The Union’s Constitution
a. In
that, as the member of the Union, elected the Provincial Chairperson
/ Provincial 1
st
Deputy Chairperson / Provincial Treasurer
and the NEC Delegate have failed to observe, enforce and uphold the
Constitution of the
Union.
b. In
that you acted in the manner that is disrespecting and/or Undermining
and/or Violating decisions taken by
the Union’s Constitutional
Structures thereby neglecting your duties as per the Constitution.
3.
Acting In the manner That Is Against The Interest Of The Union
a. You
acted dishonestly and presented a false document by:
i.
Wrote an un-mandated letter to the President
stating that it is
the decision of the POBs and
ii.
Claimed you were acting on their behalf
Gauteng NEC Delegates in that
same letter as the mandated to request for Special NEC, when in fact
you had no such mandate.
b. You
fraudulently used or misused or used without permission the union
name and resources against the Union.
4.
Bringing the Union into Serious Disrepute:
a. You
attended and participated in a meeting that was externally funded, to
deliberately plant against the union,
its decisions and leadership
thereby disrupting or sabotaging programs and plans of the Union.
b. You
incited agitated, mobilised members and/or shop stewards and/or
official against the union, its decision
and its leadership.”
[14]
Although charge 2 above refers to the applicants in their capacity as
members
and
as elected office bearers, reliance for the
charges is only placed on clause 25 of the constitution which reads
as follows:
“
DISCIPLINE
OF MEMBERS
25.
Impose the fine of not less than R100 but not exceeding R200 for the
first offence and not
less than R300 but not more than R500 for
subsequent offences.
25.1
A member may be suspended, fined or expelled as may be determined by
the POB/NOB/BOB if he/ she infringes
any of the terms of this
Constitution or act in a manner, which is detrimental to the
interests of the Union.
25.2
No member may be suspended, fined or expelled
unless s/he has been afforded the opportunity to state his/her
case
personally or in writing at a meeting of the POB/NOB/BOB which
intends to consider the matter Such member shall be given not
less
than (7) days’ notice in writing from the Secretary of the
POB/NOB/BOB. The matter with which the member is charged
shall be set
out in such notice.
25.3
If the POB/NOB/BOB is satisfied that the member charged, though
absent, received the prescribed notice,
or is the person charged is
present, the POB/NOB/BOB may proceed to hear the matter ad determine
it and if it finds the charge
proved to its satisfaction may:
25.3.1
Expel the member from the union.
25.3.2
Suspend the member for a definite period from membership of the
Union.
25.3.3
Impose a fine of one hundred rand (100) for the first time offence
but not exceeding two hundred rand R200), and not
less than three
hundred rand (R300) for subsequent offences but not more than five
hundred rand (500) and may suspend such a person
from membership
until such a fine is paid without prejudice to any right of action to
recover such monies by civil action;
25.3.4
Remove such person from any position of leadership within the Union
(or the time of office to which he/she was elected)
25.4
The accused member shall be entitled to call such witnesses in
support of his/her case as are reasonably
necessary when attending a
disciplinary hearing. The POB/BOB/NOB may call such further witnesses
as it finds necessary and may
take such further investigations as it
deem expedient before arriving at a decision.
”
[15]
The respondents’ justification for reliance on clause 25(3) of
the Constitution, as recorded by the NOBs when they informed
the
applicants NOBs of their decision to expel them, is that:
“
8.1
It needs to be cleared that the NOBs are constitutionally empowered
to take disciplinary action
against any member of the Union and
regard to clause 25.1, 25.2 and 25.3, the fact that a particular
members is based in
a particular workplace, branch or province
remains immaterial and irrelevant.”
[16]
Mr. Whyte for the respondents argued that the phrase in clause 25 “by
the POB/NOB/BOB”, should not be read as implying
that one or
other of these categories of office bearers is a relevant body for
the purpose of disciplinary action in relation to
a particular
member, but that any of these bodies could carry out the function in
respect of any member.
[17]
The sanctions listed in clause 25.3 descend in severity – from
expulsion, to suspension, to the imposition of a fine
and finally to
the sanction of removing ‘such person from any position of
leadership within the Union (or the term of office
to which he/she
was elected).’ What is evident from the hierarchy of penalties
listed in this clause is that the penalty
of removal from office is a
distinct and lesser penalty than expulsion for the purposes of clause
25. I note that the letter of
expulsion received by the applicants
relies specifically on clause 25.3.1 but also makes reference, albeit
obliquely, to clause
25.3.4 stating that:
“
8.13
In terms of the Clause 25.3 of the Constitution the NOBs decided to:
8.13.1
EXPEL you as a member from the Union in terms of Clause 25.3.1, with
an immediate effect
8.14
In relations with your expulsion, you are immediately removed from
any positions of leadership within
the Union.”
[18]
Two observations need to be made with respect to the respondent’s
reliance on clause 25. First, that it cannot be correct
that any of
the bodies of office bearers can discipline any member without
reference to the level in the Union’s structure.
The
Constitution requires the requisite body to determine sanction in
respect of members holding positions in the different levels
of union
organization, just as it requires a requisite body to hear an appeal.
Secondly, clause 24 which deals with the removal
from office of
office bearers, cannot simply be bypassed and be rendered
superfluous. A look at section 95 of the LRA is instructive.
[19]
The basis for requisite bodies to hear appeals as well as the need
for separate provisions governing the discipline of members
per se
and the removal from office of office bearers, is to be found in
Section 95(5) of the LRA which sets out the requirements for
registration of a trade union and specifies the provisions a union’s
constitution (and that of a registered employers’
organization)
must contain. Important for our purposes are the following clauses
requiring that a constitution should:
“
(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;”
and
“
(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;”
[20]
Section 95 of the LRA thus prescribes that a compliant constitution
must identify an applicable body to which appeals are made,
both for
the purposes of disciplining members and for the removal of office
bearers. In my judgment, taking into account that the
constitution is
drafted in compliance with the LRA, the sensible meaning of the
POB/NOB/BOB phrase in Clause 25(1) and (2) must
be read as
denoting either one or other of the bodies, as the case may be, and
not any of them. Mr Whyte’s submission
in support of the
respondents’ contentions as contained in the letter of
expulsion, cannot be correct. More important however
is the
applicability of clause 24.
[21]
It was submitted on behalf of the applicants that the election of a
member as an office bearer, irrespective of the level at
which the
member serves, removes such member from the ambit of clause 25
dealing with the discipline of members, at least in so
far as the
application of clause 25 may lead to the removal of an office bearer
by a higher body than the one which elected the
office bearer.
Further, that to conclude that office bearers are subject to
discipline
qua
member renders it possible for a higher body to
determine the composition of a lower body.
[22]
As referred to above, the NEC is given the power to:
“suspend
any BEC, PEC or Office-Bearer or members for violations of provisions
of the Constitution or in the interests of
the Union; and to take
over the management of the affairs of any Branch or Province until a
BC or PC can be held and a new committee
and or Office Bearers can be
elected.”
(Clause 20.6.1) Thus
the NEC may suspend office bearers (a body higher than the NOBs and
which comprises representatives from the
provinces as well as NOBs)
with the proviso, that that the branch congress or provincial
congress are the bodies empowered to elect
new office bearers.
[23] My reading of the
Constitution to exclude reliance on clause 25, in so far as the
application of clause 25 may lead to the
removal
of an office
bearer by a higher body without reference to those bodies which
elected the office bearer, is also fortified by the
following clauses
contained in it, which underline the powers of control and
accountability in the Union:
23.1
Clause 10 dealing with Establishment and Control of Branches provides
amongst others that:
“……
The
control of the union at this level shall be vested in the following
structures in order of supremacy:
10.1
Quadrennial Branch Congress
10.2
Branch Executive Council
”
;
23.2
Clause 15 of the Constitution deals with the Establishment and
Control of Provinces and sets out in clause
15.4 the following:
“
15.4
The control of the union provincially shall be vested in the
following Structures in order of supremacy:
15.4.1
Provincial Congress
15.4.2
Provincial Executive Council
”
;
23.3
Clause 18 of the constitution deals with Control of the Union
Nationally as follows:
“
The
control of the Union nationally shall be vested in the following
structures or committee in order of supremacy:
18.1
National Congress
18.2
National Executive Council
18.3
National Office Bearers
”
[24]
Given the recorded order of supremacy of democratic structures in the
Union, the wording of clause 20.6.1 above serves as a
further
confirmation that the Constitution does not contemplate a situation
in which the NOBs may remove office bearers by means
of expulsion,
relying on clause 25 of the Constitution. The expulsions were
therefore not in compliance with the Constitution.
[25]
I return to the question of the powers of this Court in relation to
its jurisdiction in terms of section 158 (1)(e) of the
LRA. In a
recent as yet unreported judgment
[3]
my brother Van Niekerk J was also confronted with a matter arising
from a schism within a union. He had this to say about section
158(e)(i) of the LRA:
“
Although
this provision is located in the section of the LRA that confers
powers on the court (as opposed to s157 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’ organization) and any one or more of
its members concerning any non-compliance with that body’s
constitution, this court has jurisdiction to hear the matter and to
make any of the appropriate order, including the granting of
interdictory relief, referred to in s158(1)(a).”
[4]
[26]
I am in respectful agreement with his approach. It is not necessary
for me to delve into the question of common law review
versus
contractual remedies or to consider the court’s jurisdiction to
evaluate the procedural and /or substantive factors
in relation to
the disciplinary process that was followed. In handing down what I
believe is an appropriate order, I choose not
make an order for costs
given that it appears to me that this matter has come to court
flowing from wider problems confronting
the trade union movement at
present. A costs order in such circumstances may not promote labour
peace, one of the fundamental objectives
set out in section 1 of the
LRA. In all the circumstances I make the following order:
Order
1.
The expulsion of the applicants by the
National Office Bearers was not in compliance with the Constitution
of FAWU;
2.
The expulsion of the applicants is set
aside.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants: Adv Pl
Kennedy SC and Adv HM Viljoen
Instructed
by:
Cowan Harper Attorneys
For
the Respondents: Mr J. Whyte of Cheadle Thompson &
Haysom Inc
[1]
2012 (4) SA 593
(SCA) at 603 - 605
[2]
At
307-8, para [26].
[3]
SATAWU
and Lucky Zondo & Others
J715/15
[4]
At paragraph 6