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[2015] ZALCCT 56
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Municipal and Allied Trade Union of South Africa (MATUSA) v Crouse NO and Another (C261/15) [2015] ZALCCT 56; [2015] 11 BLLR 1172 (LC); (2015) 36 ILJ 3122 (LC) (1 September 2015)
REPUBLIC OF SOUTH
AFRICA
The Labour Court
of South Africa, Cape Town
Judgment
Case No: C 261/15
DATE: 01
SEPTEMBER 2015
Reportable
In the matter
between:
Municipal and
Allied Trade Union of South Africa
(MATUSA)
...........................................
Appellant
And
Crouse
N.O
....................................................................................................................
First
Respondent
(The Registrar of
Labour Relations)
Independent
Municipal and Allied Trade Union
(IMATU)
..................................
Second
Respondent
Heard: 13 August
2015
Delivered: 1
September 2015
Summary: LRA s
111(3) – appeal from decision of Registrar of Labour Relations
refusing to register new trade union as not
being “genuine”
trade union. No confusion between MATUSA and IMATU likely. Appeal
upheld.
Judgment
STEENKAMP J
Introduction
[1]
The
applicant, MATUSA (the Municipal and Allied Trade Union of South
Africa) is a breakaway trade union formed by disgruntled former
office bearers and members of SAMWU (the South African Municipal
Workers’ Union), a COSATU
[1]
affiliate. The Registrar of Labour Relations has refused to register
it, saying that it is not a “genuine” trade union.
MATUSA
appeals against that decision in terms of s 111(3) of the Labour
Relations Act.
[2]
[2]
MATUSA has invited the second respondent,
IMATU (the Independent Municipal and Allied Trade Union), to join the
proceedings. It
has accepted the invitation. The reason is that IMATU
objected to the registration of MATUSA as, in its view, the
similarity in
their names may lead to confusion.
Background
facts
[3]
It is common cause that MATUSA is a
breakaway union formed by disgruntled former office bearers and
members of SAMWU intended to
organise in the local government sphere.
Amongst the reason for their dissatisfaction is what they term the
“missing millions”
of members’ subscriptions that
are, according to them, unaccounted for. Whatever the reasons for the
formation of an alternative
to SAMWU, the new union applied to the
registrar to be registered in terms of ss 95 and 96 of the LRA. The
registrar refused. His
stated reasons were set out as follows:
“
The
information received by this Office [
sic
]
regarding the applicant was considered. The application was perused
and found not acceptable for approval.
You
are accordingly advised that the applicant is not a genuine trade
union as envisaged by the [Labour Relations] Act and was established
by individuals for their own personal benefit. The applicant failed
to satisfy registration requirements of the Act.”
[4]
The second paragraph, it will be
immediately apparent, is a
non sequitur
.
The word “accordingly” does not refer back to any reasons
in the preceding paragraph to show why, in the registrar’s
view, the appellant was not a genuine trade union. Nevertheless,
those were the reasons that the registrar provided to the appellant.
[5]
Unbeknownst to the appellant, IMATU had
also objected to its registration on the grounds that its name may
lead to confusion. Although
that does not appear to be one of the
grounds on which the registrar refused to register MATUSA, it invited
IMATU to be joined
as second respondent to these proceedings. IMATU
accepted the invitation. Its objection will also be considered in
this appeal.
The
Registrar’s decision
[6]
The only reasons that the registrar gave
for his initial decision are those set out in paragraph [3] above.
Once MATUSA filed this
appeal, the registrar disclosed an internal
memorandum from a deputy director in the Department of Labour to the
registrar recommending
that the registration of MATUSA be refused on
the following grounds:
“
The
applicant is not a genuine trade union as envisaged by the Act and
was established by individuals for their own personal benefit.
The
applicant failed to satisfy registration requirements of the Act.”
[7]
The memorandum considered the following
under the heading, “Application of section 95(8) guidelines on
genuineness of trade
union”:
7.1
The applicant was established by
disgruntled SAMWU office bearers and officials.
7.2
In terms of the minutes of meetings
submitted by the applicant “there was no proper formation of
the applicant union”.
7.3
The Department requested the applicant to
submit “application forms that have been completed by members
and current lists
of membership indicating who the paid-up members of
the applicant are”. The applicant submitted a list of names and
contact
numbers “but failed to prove that it has members who
are paying membership fees”.
7.4
The income and expenditure statement
submitted by the applicant was submitted “to further mislead
the office of the registrar.
The income of the applicant is all from
donations and contributions from individuals who are behind the
establishment of the applicant.
The applicant has no leadership.”
7.5
“
The applicant union submitted lease
agreement [
sic
]
but it has failed to proof [
sic
]
to this office it is paying rent as has been requested.”
7.6
“
The applicant is not a trade union
as envisaged by the Act. The applicant is not a genuine trade union
as envisaged by the Act.
It could be safely concluded that
individuals are behind the establishment of the applicant.”
7.7
The applicant failed to meet registration
requirements in terms of s 95(1)(a) regarding the adoption of a name.
“The applicant
failed to prove that it has members who adopted
its name.”
[8]
It appears that the registrar accepted this
recommendation and hence refused to register MATUSA.
Nature
of the appeal
[9]
Appeals of this nature are governed by s
111(3) of the LRA. That section provides:
“
Any
person who is aggrieved by a decision of the registrar may appeal to
the Labour Court against that decision, within 60 days
of –
(a)
the date of the registrar’s decision;
or
(b)
if written reasons for the decision are
demanded, the date of those reasons.”
[10]
The
Labour Appeal Court has held that an appeal of this nature is a fresh
hearing, or an appeal in the wide sense. The Court must
decide if the
decision of the registrar was correct. It is not akin to a review.
[3]
And the registrar has no discretion to refuse registration once the
requirements of the Act are met.
[11]
The Court can, on appeal, also deal with
objections that were not taken into account by the registrar at the
time. Even if the objection
by IMATU did not form part of the
registrar’s decision, therefore, the Court can still deal with
it now that IMATU has been
joined.
Is
MATUSA a “genuine” trade union?
[12]
The
Minister of Labour, in consultation with Nedlac, has drawn up
guidelines to be applied by the registrar in determining if an
applicant for registration is a “genuine” trade union.
[4]
The guidelines cannot override the provisions of the LRA but must be
applied by the registrar. If he doesn’t apply them to
the
facts, his decision would be incorrect.
[5]
[13]
The following parts of the guidelines are
relevant:
13.1
The registrar must examine the actual
operation of the trade union: in the case of an applicant for
registration, the manner
in which it was formed; and in the
case of an existing organisation, its actual activities and
functioning.
13.2
It must be an association of employees with
the principle purpose to regulate relations between its members and
employers.
13.3
The actual process of forming the trade
union, its composition, membership and activities must be considered.
13.4
Key aspects of the process of formation
include:
13.4.1
the number of founding members who attended
the inaugural meeting(s) to establish the trade union and who
completed signed registers
indicating their names and workplaces;
13.4.2
how the constitution of the union was
drafted and adopted;
13.4.3
the election of an executive committee or
council of members and the election of office-bearers;
13.4.4
whether the formation of the trade union
involved employees associating with one another to establish an
organisation to regulate
relations with their employer(s).
13.5
The following factors may be indicative of
the genuineness of the trade union:
13.5.1
whether membership is limited to a
particular sector;
13.5.2
the size of its membership (although the
LRA does not create a membership threshold);
13.5.3
a history of representing its members’
interests (in the case of an existing trade union whose membership
has declined).
13.6
The primary purpose of the trade union must
be to regulate relations between employees and employers through
collective bargaining.
13.7
The failure to seek to obtain
organisational rights or recognition is a strong indication that the
trade union is not a genuine
trade union, as these rights provide the
basic platform for representing members’ interests.
13.8
The fact that a trade union’s
activities solely, or to a large extent, comprise referring disputes
on behalf of its members
to the CCMA or the Court is an indication
that a trade union is not a genuine trade union.
13.9
A trade union may only be registered if it
is independent, i.e. not a “sweetheart union”.
13.10
A trade union must be an association of
employees.
13.11
In terms of s 95(5)(a) of the LRA a trade
union must state in its constitution that it is an association not
for gain. The purpose
of this requirement is to prevent trade unions
from being used as vehicles for enriching individuals or as a cover
for profit-making
businesses. Among the factors that may indicate
that a trade union is in fact operating for the gain of certain
individuals are
the following:
13.11.1
Unrealistically high salaries and
allowances are paid to the officials, office-bearers or employees of
the union.
13.11.2
Interest-free or low interest loans are
made to them, and those loans are not repaid.
13.11.3
Family members of office-bearers or
officials are employed by the union.
13.11.4
Income earned by the union is not used for
the benefit of the organisation and its members but is paid out to
officials, office-bearers
or employees.
13.12
Usually the major source of revenue for
trade unions is a monthly subscription.
[14]
The
Labour Court considered a refusal to register a new trade union by
the registrar who is cited as the first respondent, Mr Johan
Crouse,
in
Workers’
Union of South Africa v Crouse N.O. and Another
.
[6]
Murphy AJ
[7]
found that the
registrar had taken improper considerations into account when doing
so. These included the fact that the union had
been formed by persons
not employed in any capacity other than as union organisers, that
these persons were ‘profiting’
from members’ fees,
and that the applicant union was formed as a result of
dissatisfaction with an existing union. The judgment
was overturned
on appeal on the narrow procedural ground that the registrar had not
given the applicant union an opportunity to
comply with the statutory
provisions before it appealed. The registrar’s decision
therefore remained provisional and was
not (yet) subject to
appeal.
[8]
The LAC did not deal
with the merits of the registrar’s decision and those of the
court
a
quo
’s
judgment on that (provisional) decision.
[15]
The present case has a number of
similarities with that in
Workers’
Union
. In that case, the registrar was
also not satisfied that the applicant union was a genuine trade union
because its formation was
not initiated, formed and managed by
employees in order to regulate their relations with employers and
because the applicant union
did not function or operate as a trade
union, at all, or in accordance with its own constitution at the time
that it applied for
registration. (As Mr
Stelzner
correctly pointed out, this was essentially because, as in the
present case, the trade union first needed to be registered in order
for it to organise and to function as a trade union).
[16]
In
the case before me, MATUSA faced a classic Catch-22.
[9]
The registrar did not consider it to be a genuine trade union and
therefore refused to register it; but in order to show that it
is a
genuine trade union by organising workers in local government,
signing them up as members, collecting subscriptions, acquiring
organisational rights and representing those members’
interests, it has to be registered.
[17]
As
Murphy AJ pointed out in
Workers’
Union
:
[10]
“
Given
that generally it is unlikely that an unregistered trade union will
be in a position to secure organisational rights, at least
until it
obtains registration, it is rational that an as yet an unregistered
union should not be barred from registration on the
ground that it is
not fully operational in terms of its constitution. In practice such
a requirement would be an effective bar
to the registration to all
new trade unions. Therefore, the refusal to grant registration on
this ground cannot be correct.”
[18]
The guidelines distinguish between the
requirements for applicants for registration – such as MATUSA –
and existing
trade unions that may face deregistration. Clause 3
provides:
“
In
order to determine whether an organisation is genuine, it will be
necessary for the registrar to examine the actual operation
of the
organisation. In the case of an applicant, particular attention will
have to be paid to the manner in which the organisation
was
established and formed. In the case of an existing organisation,
attention will have to be paid to its actual activities and
functioning. In evaluating whether a trade union … is genuine,
the registrar must take into account all relevant factors.”
[19]
The
Labour Court held in
Workers’
Union
[11]
that the distinction is rational given the fact that an unregister
e
d
trade union seeking registration is limited as to the activities it
can undertake on behalf of its members. And so it is with
MATUSA.
Given that it is generally unlikely that an unregistered trade union
will be able to obtain organisational rights, it is
rational that an
as yet unregistered union should not be barred from registration on
the ground that it is not yet fully operational
in terms of its
constitution. In
Workers
Union
the registrar’s refusal to register the applicant union on this
ground was held to be incorrect.
[20]
In the case before me it is even more
difficult for MATUSA to organise effectively and to strive to obtain
organisational rights
before it is registered, as collective
bargaining and operational rights in the local government sphere is
governed by a collective
agreement between the employers’
organisation and two registered trade unions representing by far the
majority of employees,
and which had done so for many years, namely
SAMWU and IMATU.
[21]
The Labour Court in
Workers’
Union
also held that the fact the union
was formed by a self-employed and an unemployed person did not
justify the refusal to register
the union. The Court referred to s
213 of the LRA which provides that a trade union is ‘an
association of employees whose
principle purpose is to regulate
relations between employees and employers, including employer
organisations’. It held that
the fact that non-employees played
a central role in the formation of the organisation did not
per
se
render it not an association of
employees. In that case, the documentary evidence revealed that the
union was formed by a group
of employees at a general meeting
exercising their right to freedom of association. The court held that
the fact that assistance
was given to the employees who formed the
union by former colleagues who are unemployed or self-employed was
not a bar to registration.
To impose a requirement that associations
can only be formed by those who qualify for membership would be an
unnecessarily restrictive
limitation upon the freedom of association.
[22]
As
I debated with counsel during the course of oral argument, the 2002
amendments to the LRA sought to discourage the formation
of unions
which were no more than disguised labour consultancies registered for
the sole purpose of gaining appearance rights at
the CCMA, bargaining
councils and the Labour Court or those which were registered in order
for financial and insurance brokers
to market financial or insurance
products through them.
[12]
As
was the case in
Workers’
Union
,
there is no evidence in the case before me that supports any claim
that the appellant is involved in any of the activities referred
to
in the explanatory memorandum.
[23]
The registrar in
Workers’
Union
also assigned to himself the
authority and power of halting the proliferation of trade unions in
general. He disapproved of the
formation of a new union as a result
of dissatisfaction by employees with their existing union. Although
that is not pertinently
stated as a reason in the present appeal, it
does appear that the registrar took into account the fact that MATUSA
was formed by
disgruntled former office bearers of SAMWU. But in
Workers’ Union
,
the court held that this was also a misdirection resulting in the
misapplication of the registrar’s authority. Sections
95 and 96
make it clear that the registrar no longer enjoys a majoritarian
gatekeeper role at the registration stage. The right
to freedom of
association must be interpreted generously and requirement of
registration, insofar as they restrict that right,
should be
interpreted restrictively. The same considerations apply in the
appeal before me.
[24]
None
of the parties referred to the recent judgment of this Court in
SASEGWU
v Registrar of Labour Relations.
[13]
In that judgment, Molahlehi J considered an application in which,
inexplicably, the applicant union – the South African Security
and General Workers Union (SASEGWU) – brought an application in
terms of s 158(1)(a)(iii) to review and set aside the decision
of the
registrar refusing to register it, rather than appealing in terms of
section 111(3). The court refused the application after
taking into
account the following factors that were considered by the registrar:
24.1
The meeting founding the applicant union
took a resolution to appoint an interim leadership which had no basis
in the union’s
own constitution. This effectively meant that no
leadership was elected for the applicant since the constitution does
not provide
for interim leadership.
24.2
The constitution was not adopted by the
members of the applicant.
24.3
There was no election conducted of
the office bearers by the general membership of the applicant. There
was also no adoption of
the constitution or the name.
24.4
The applicant union failed to provide its
bank statements for three months despite a request by the registrar
to do so.
24.5
Despite an allegation by the union that
members pay subscriptions and that receipts had been issued
consequent thereto, it failed
to produce proof when requested to do
so by the registrar.
[25]
In the case before me, on the other hand, I
cannot agree with the registrar that MATUSA is not a genuine trade
union. On the facts
now before the Court, as amplified by the
parties’ affidavits, the following factors point to it being a
genuine trade union.
25.1
The manner in which the union was formed is
spelt out in detail and is not seriously in dispute: disaffected
former SAMWU office
bearers met, resolved to form the union, formally
adopted a constitution and have since then engaged in various union
activities
and started functioning as a union. They adopted the name
“MATUSA” at a meeting on 17 December 2014 in Paarl, where
an interim leadership was also elected.
25.2
The reason why MATUSA has not yet insisted
on members paying subscriptions to it prior to registration, is that
SAMWU and IMATU
have an agency shop agreement with the employer in
local government compelling employees in that sector to pay
membership dues
to one of the recognised unions. That leads, once
again, to the classic Catch-22: the registrar expects of would-be
MATUSA members
to sign up and pay subscriptions to it, but the new
union can do nothing for them before it is registered and recognised;
and in
the meantime, they are also compelled to pay over membership
dues through an agency shop agreement to either SAMWU or IMATU. For
workers who do not earn a lot of money, paying dual membership fees
due to trade unions when they only wish to join one of them
must be a
serious consideration. As the members present at the meeting of 14
February 2015 in Worcester noted:
“
We
find ourselves in a very peculiar position. We cannot recruit and ask
our members to resign from their union which would ultimately
expose
them in not being represented in the workplace and even in the
Bargaining Council.
The
other issue is the payment of subscriptions. In discussions with some
employers they will not deduct while we are not a registered
union.
We cannot have a situation where members must pay double deductions.
We are governed by an Agency Shop Agreement which sets
a threshold in
the sector. We need to meet that threshold before deductions can be
made in favour of MATUSA.”
25.3
In terms of its constitution, the union’s
principal purpose is to regulate relations between employees and
employers in the
local government sector.
25.4
It is an association of employees. It has
submitted the names and application forms for membership of a number
of would-be employees.
Some 600 membership forms have been completed.
Of course, the union would only be in a position to organise more
effectively and
embark on a recruitment drive once it is registered.
25.5
An executive committee and office-bearers
have been elected.
25.6
The new union’s activities are not
solely, nor to a large extent, that of referring disputes and cases
on behalf of its members
to the CCMA, the South African Local
Government Bargaining Council, this court or other courts, although
one of its purposes is
to represent its members in disciplinary
hearings.
25.7
MATUSA is not under the control of any
employer or employers’ organisation and is free of interference
or influence of any
kind. It is intended to operate in competition
with SAMWU.
25.8
The new union operates from its own
premises and is in the process of establishing branches in the
Western Cape, Johannesburg and
Durban. It will move its offices to
more centrally located premises which are more readily within reach
of members as soon as it
obtains registration.
25.9
The union is not intended to be used as a
vehicle for enriching individuals or as a cover for a profit-making
business. The reimbursement
of expenses for those travelling to and
attending meetings is reasonable. No high salaries or allowances are
paid to the officials,
office bearers or employees of the trade
union. It operated own bank account and can vouch for all flows of
money through this
account.
25.10
It has appointed a firm of accountants and
has its own email and domain addresses (under MATUSA) and its own
telephone number.
[26]
The memorandum from the deputy director on
which the registrar’s decision was based contains a number of
factual errors. It
is not correct that MATUSA does not have any
members; nor that it had been asked to submit application forms for
members (in fact,
it was asked for “the current list reflecting
paid-up membership”); nor that it does not have any leadership;
nor that
the meetings that were held to discuss the formation of a
new trade union were in fact SAMWU meetings.
[27]
It is so that most of those members of the
appellant who attended the various meetings which resulted in its
formation and the adoption
of its constitution at the meeting of 7
December 2014 were former office bearers of SAMWU. Their intention in
forming a new trade
union, though, was to further the interests of
SAMWU members who have lost faith in that union. That does not
suggest that MATUSA
is not a genuine trade union.
[28]
On balance, and taking into account all
these factors at the hand of the guidelines published under section
95 (8), I am persuaded
that the appellant is a genuine trade union
and that the registrar’s decision to the contrary, apparently
based on the memorandum
from the deputy director, was mistaken.
[29]
The appeal on this aspect, i.e. whether the
appellant is a genuine trade union, must succeed. Once it is
registered, it will become
clear whether it is able to organise and
recruit successfully or not.
The
objection by IMATU
[30]
The registrar did not mention the objection
by IMATU as a reason for the refusal to register MATUSA initially.
However, he did rely
on it in his answering affidavit filed in this
appeal.
[31]
In terms of section 95 of the LRA,
registration should be refused if either the full name or the acronym
of the applicant union
is so similar to that of another union that
confusion could be created. Section 95 (1) provides that any trade
union may apply
for registration if it has adopted a name that does
not closely resemble the name or shortened form of the name of
another trade
union. In this case, IMATU objects that the name
“Municipal and Allied Trade Union of South Africa”
closely resembles
“Independent Municipal and Allied Trade
Union”; and that the acronym MATUSA so closely resembles IMATU
that it may
lead to confusion or mislead would-be members.
Onus
[32]
As
Mr
Morley
SC pointed out, in the analogous trade mark environment, the onus is
on the applicant for registration to satisfy the Registrar
(of trade
marks) that there is no reasonable probability of confusion or
deception.
[14]
[33]
It does not seem to me, though, that
similar considerations apply in this case. IMATU has objected to the
registration of MATUSA
on the basis that its name may lead to
confusion. It seems to me that the onus rests on IMATU to show why
that is so, and thus
why the Registrar (of trade unions) should
refuse to register MATUSA on this basis.
Would
the name and acronym lead to confusion?
[34]
In
the
SAMRI
case
[15]
the Labour Appeal
Court considered the meaning of section 95 (4) of the LRA and stated
that the Act sought to prevent the registration
of a name that so
resembles that of another trade union that there is “a
reasonable likelihood that the one union may be
confused for the
other”. Section 95 (4) reads:
“
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.”
[35]
In
that case, Ngcobo AJP
[16]
referred to the analogous test in s 44(1)(a) of the Trade Marks Act
62 of 1963, which has subsequently been repealed by the
Trade Marks
Act 194 of 1993
. That section provided that rights acquired by
registration of a trade mark are infringed by:
“
(a)
Unauthorised use as a trade mark in relation to goods … in
respect of which the trade mark is registered, if the mark
so nearly
resembling it as to be likely to deceive or cause confusion”.
[36]
In
that context, the test was set out as follows in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
[17]
:
“
In
an infringement action the onus is on the plaintiff to show the
probability or likelihood of deception or confusion. It is not
incumbent upon the plaintiff to show that every person interested or
concerned (usually as customer) in the class of goods for
which his
trade mark has been registered would probably be deceived or
confused. It is sufficient if the probabilities establish
that a
substantial number of such persons will be deceived or confused. The
concept of deception or confusion is not limited to
inducing in the
minds of interested persons the erroneous belief or impression that
the goods in relation to which the defendant's
mark is used are the
goods of the proprietor of the registered mark, i.e. the plaintiff,
or that there is a material connection
between the defendant's goods
and the proprietor of the registered mark; it is enough for the
plaintiff to show that a substantial
number of persons will probably
be confused as to the origin of the goods or the existence or
non-existence of such a connection.”
[37]
More
recently, in
Adidas
AG v Pepkor Retail Ltd
[18]
,
the
Supreme Court of Appeal noted:
“
It
must be borne in mind that the question of the likelihood of
confusion or deception is a matter of first impression and that
‘one
should not peer too closely at the registered mark and the alleged
infringement to find similarities or differences’.
The
court must not consider the question of deception or confusion as if
the purchaser of the goods will have had the opportunity
of carefully
considering the marks and even comparing them side by side. They must
look at the marks as they will be seen in the
marketplace and take
into account a notional purchaser: ‘a person of average
intelligence, and proper eyesight, buying with
ordinary caution’”.
[38]
The LAC in the
SAMRI
case held that the name
Staff
Association of the Motor and Related Industries
so closely resembled the name
Motor
Industry Staff Association
that it was
likely to mislead or cause confusion. Does the same apply in this
case?
[39]
In order to decide this question, it seems
to me that the court has to consider, especially, the position of
employees in local
government as the notional or would-be members of
the two trade unions. The existing trade unions in that sphere –
SAMWU
and IMATU – are well established and have enjoyed
collective bargaining rights for many years. Their respective
memberships
are very evenly poised. Workers in local government are
well aware of the two unions and who they represent. It seems to me
most
unlikely that those employees would confuse the acronym MATUSA
for the acronym IMATU.
[40]
Not only is the history, context and
notorious nature of the established unions important; the very
pronunciation of the acronyms
“IMA’TU” and
“MATU’SA” are so different as to be unlikely to
cause any confusion.
[41]
When
one considers the full names of the two trade unions, the difference
is even more apparent. In the case of the Independent
Municipal and
Allied Trade Union, the prefix “Independent” is an
important signifier. It stems from a history where
SAMWU was
affiliated to COSATU and IMATU distinguished itself by being
independent of any affiliation. On the other hand, the Municipal
and
Allied Trade Union of South Africa contains no such signifier. The
words “Allied Trade Union of South Africa” are
generic
and appear in the names of many other trade unions. For example, from
the list of registered trade unions in South Africa,
it appears that
51 have the word “allied” in their name; 43 have the
clause “allied workers”; 59 contain
“South Africa”
or “South African”; 130 have the word “union”;
59 have the clause “workers’
union”; and only two
contain the word “independent”, of which IMATU is one and
the appellant is not the other.
And the words “Municipal”
and “trade union” are merely descriptive.
[19]
[42]
MATUSA’s logo – a clenched fist
in a circle below the union’s name in the revolutionary colours
of red, yellow
and black – is also entirely different to that
of IMATU. The latter consists of the acronym ‘IMATU’ in
blue,
and above that four figurines in blue, yellow, green and red.
There is no similarity or likelihood of confusion between the two.
Conclusion
[43]
Having regard to all the factors outlined
above, I’m satisfied that MATUSA is a genuine trade union and
that its name or acronym
will not mislead or cause confusion when
compared to that of IMATU. The appeal against the registrar’s
refusal to register
MATUSA must succeed.
Costs
[44]
The
applicant has had to approach this Court in terms of
s 111(3)
to
vindicate its rights. It was not unreasonable for the registrar to
defend his decision; and in refusing to register the appellant,
he
did not act
mala
fide
.
As between MATUSA and IMATU, the latter joined the proceedings at the
invitation of the former. Both trade unions had to get certainty
about the certification of a new entrant to the local government
bargaining table. They will have to work together in that forum,
albeit in competition for members. I do not consider a costs order to
be appropriate in law or fairness.
[20]
Order
[45]
I therefore grant the following order:
45.1
The appeal in terms of section 111 (3) of
the Labour Relations Act is upheld.
45.2
The decision of the registrar (the first
respondent) refusing to register the appellant (MATUSA) is set aside.
45.3
The registrar is ordered to register MATUSA
as a trade union in terms of section 96 of the Labour Relations Act
and to issue a certificate
of registration in its name within 14 days
of this order.
A J
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
R G L Stelzner SC
Instructed
by Hannes Pretorius, Bock & Bryant, Somerset West.
FIRST
RESPONDENT: N Mangcu-Lockwood and B Mthamzeli
Instructed
by the State Attorney, Cape Town.
SECOND
RESPONDENT: G E Morley SC
Instructed
by Savage Jooste & Adams, Pretoria.
[1]
Congress of South African Trade Unions.
[2]
Act 66 of 1995 (the LRA).
[3]
Staff
Association for the Motor & Related Industries v Motor Industry
Staff Association & Another
(1999)
20
ILJ
2552
(LAC) para [22] – [24];
Commercial
Staff (Cape) v Minister of Labour
1946 CPD 643-4
;
Tikley
& others v Johannes NO
1963
(2) SA 588
(T). See also
Workers’
Union (infra)
para 12.
[4]
LRA
s 9(5); GN R1446 in
Government
Gazette
25515
of 10 October 2003.
[5]
Workers
Union of South Arica v Crouse NO
(2005)
26
ILJ
1723
(LC).
[6]
(2005)
26
ILJ
1723 (LC).
[7]
As
he then was.
[8]
Crouse
N.O. & another v WUSA
(2008)
29
ILJ
2571
(LAC).
[9]
As
described in Joseph Heller’s eponymous novel.
[10]
Supra
para 22.
[11]
Supra
para 21.
[12]
Explanatory
Memorandum to the Labour Relations Amendment Bill, 2000 (
Government
Gazette
27
July 2000);
Workers’
Union (supra)
para
26;
National
Entitled Workers’ Union v Ministry of Labour
(2011) 32
ILJ
1372 para [10];
Registrar
of Labour Relations v CAESAR
(2015)
36
ILJ
182 (LAC) para [27].
[13]
[2015]
ZALCJHB 187 (25 June 2015).
[14]
The
Upjohn Company v Merck
1987
(3) SA 221 (T).
[15]
Staff
Association for the Motor & Related Industries v Motor Industry
Staff Association & another
(1999)
20
ILJ
2552
(LAC).
[16]
As
he then was.
[17]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) 640G – 640E.
[18]
[2013]
ZASCA 3
(28 February 2013) para [22].
[19]
Cf
African
Market Agency v Union Market Agency
1926
CPD 245
at 247 [per Benjamin J];
Office
Cleaning Services Ltd v Westminster Office Cleaning Association
1944 All ER 269 (CA).
[20]
In terms of s 162 of the LRA.