About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2016
>>
[2016] ZALCCT 10
|
|
Chauke and Others v FAWU and Others (C122/2016) [2016] ZALCCT 10 (5 April 2016)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 122/2016
In
the matter between:
CHAUKE, Khazamule
Norman
BREDA, Jacqueline
XWAZI, Songezile
GCWENSA, Bongani
GIDANA, Mandla
MBEKI, Monwabisi
KONAFANA, Monwabisi
KHUMISI, Ishmael
MTHANTI, Basil
First applicant
Second applicant
Third applicant
Fourth applicant
Fifth applicant
Sixth applicant
Seventh applicant
Eighth applicant
Ninth applicant
and
FAWU
First Respondent
NAZO, Atwell
Second Respondent
MNGUNI, Raymond
MASEMOLA, Katishi
PHAKEDI, Moleko
OLIVER, Mark
Third Respondent
Fourth respondent
Fifth respondent
Sixth respondent
Heard
:
18 March 2016
Delivered
:
5 April 2016
Summary:
Urgent application to suspend the expulsion of
union members and office bearers pending challenge to NEC resolution.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicants are all current or former members and office bearers of
FAWU.
[1]
The National Executive
Council (NEC) of FAWU purported to remove the first to seventh
applicants as members and office bearers
on 28 February 2016. That
means that they cannot attend the union’s forthcoming national
congress as delegates. The NEC has
also instituted disciplinary steps
against the eighth and ninth applicants.
[2]
The first seven applicants ask for an
urgent interdict setting aside the NEC decision against the first
seven applicants and interdicting
it from implementing it; and the
other two ask for an order setting aside the pending disciplinary
hearings. In the alternative,
the applicants seek a temporary order
suspending the expulsion of applicants 1-7 and the disciplinary
proceedings against applicants
8 and 9, pending the determination of
part B of the application.
Background facts
[3]
This application stems from a long, bitter
and undignified saga of intra-union rivalry. The union has attempted
to get rid of the
applicants as members and office bearers on a
number of occasions over the last year. It has led to at least seven
appearances
in this Court, no doubt at significant cost to the union
membership. In this ongoing battle, their membership fees have not
been
spent to their benefit, it would seem.
[4]
FAWU
is a registered trade union in terms of LRA.
[2]
The second to sixth applicants are provincial office bearers (POBs)
from various provinces. The seventh applicant, Monwabisi Konofana,
is
the secretary of the Johannesburg branch. The eighth applicant is a
shop steward and the ninth was a provincial treasurer. The
second to
seventh respondents are national office bearers (NOBs). They are,
respectively, the president, first deputy president,
second deputy
president, general secretary, deputy general secretary and national
treasurer.
[5]
A year ago, the NOBs – the second to
seventh respondents – took a decision to expel all but the
seventh applicant from
the union.
[6]
The
applicants brought an urgent application before this court. It came
before Rabkin-Naicker J. She held that the decision of the
NOBs was
ultra
vires
the union’s constitution and set it aside:
[3]
“
Given
the recorded order of supremacy of democratic structures in the
union, the wording of clause 20.6.1 [of its constitution]
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.”
[7]
The respondents delivered an application
for leave to appeal on 18 June 2015. They took the view that that
stayed the operation
of the Rabkin-Naicker judgment and they sought
to prevent the applicants from fulfilling their duties as office
bearers. The applicants
brought an urgent application to enforce the
interdict pending appeal. It was granted.
[8]
The Western Cape Provincial Executive
Committee (PEC) held a meeting on 30 June 2015. It passed a
resolution removing the second
and third applicants –
Jacqueline Breda and Songezile Xwazi – as office bearers and as
delegates to the FAWU national
congress and the COSATU special
congress. They brought an urgent application before Gush J. He set
those actions aside on 10 July
2015 because the PEC had acted outside
of its powers.
[9]
The Gauteng PEC took a similar step on 3
August 2015, removing Chauke as provincial chairperson and as
delegate to the NEC. In a
fourth urgent application before this
Court, Lagrange J determined on 26 August 2015 that that resolution
was unlawful and set
it aside.
[10]
In the meantime the second and third
applicants brought a fifth urgent application pertaining to a further
Western Cape PEC meeting.
Rabkin-Naicker J issued a rule
nisi
,
returnable on 18 September, calling upon the respondents to show
cause why they should not be interdicted from proceeding with
the PEC
meeting and filling those posts. The respondents conceded the relief
sought before Van Niekerk J on the return day. And
on 26 October 2015
the respondents withdrew their application for leave to appeal the
Rabkin-Naicker judgment.
[11]
The upshot is that the Rabkin-Naicker
judgment stands. But the respondents were not deterred. In a new
effort to remove the applicants,
the NEC expelled the first to
seventh applicants.
[12]
All of these actions arise from a meeting
that the applicants held in KwaZulu-Natal in January 2015. The
respondents say it was
a “secretive” meeting. The
applicants say they convened the meeting – comprising concerned
POBs and other union
members – because of concerns with union
issues and various concerns raised by POBs and members of the union.
[13]
The decision at the heart of this latest
application is that of the NEC on 28 February 2016 at a special NEC
meeting to dismiss
the applicants as members and to expel them as
office bearers.
The relief sought
[14]
The applicants seek relief in two parts. At
the least, they as for the relief in part A of their notice of motion
on an urgent basis,
pending the final relief sought in part B. The
urgency stems, in part, from their concern that, if the relief in at
least part
A is not granted at this stage, they will be barred from
the union’s national congress to be held on 18 April 2016.
[15]
They seek the following relief in part A:
15.1
Dispensing with the forms and service
provided by the rules and enrolling the matter on an urgent basis in
terms of rule 8.
15.2
Setting aside the unlawful resolution taken
by a special meeting of the NEC on 28 February 2016, purportedly
removing the first
to seventh applicants as members and office
bearers of the union and as delegates to the national congress.
15.3
Interdicting the respondents from
implementing the resolution.
15.4
Setting aside the pending disciplinary
proceedings against the eighth and ninth applicants (Khumisi and
Mthanti) before the NEC
and its disciplinary sub-committee.
15.5
Interdicting the respondents from
proceeding with the disciplinary proceedings against Khumisi and
Mthanti.
15.6
In the alternative to the second and third
prayers, pending the determination of part B, suspending the
expulsion of the first to
seventh applicants.
15.7
In the alternative to the fourth and fifth
prayers, pending the determination of part B, suspending the
disciplinary proceedings
against Khumisi and Mthanti.
Evaluation / Analysis
[16]
The application was brought on an urgent
basis shortly before the April recess. The union’s national
congress is due to take
place on 18 April 2016. It is less than two
weeks away. In order to deal with the dispute expeditiously before
then, it seems to
me to be in the interests of justice to consider at
least the interim relief sought in Part A at this juncture, as the
applicants
suggested in the alternative.
Jurisdiction and
powers
[17]
Section 158(1)(e)(i) of the LRA empowers
this Court to determine disputes between a registered trade union and
any of its members
about any alleged non-compliance with the
constitution of the trade union. This is such a case. This Court has
jurisdiction over
the dispute and the power to determine it.
Urgent relief : Part A
(first to seventh applicants)
[18]
As stated above, I am satisfied that the
application is urgent – at least insofar as the interim relief
sought in part A is
concerned – given the imminent national
congress.
Prima facie right?
[19]
In order to establish whether the
applicants have established a
prima
facie
right to the relief sought,
though open to some doubt, it is necessary to examine where they
locate that right. And much of what
they base their submissions on
has already been decided by Rabkin-Naicker J. (When I refer to “the
applicants” in the
rest of this judgment, I deal mainly with
the position of the first to seventh applicants, who have already
been expelled by the
NEC. The position of Khumisi and Mthanti is
slightly different, as disciplinary proceedings against them are
still pending. I will
deal with them separately insofar as it is
necessary).
[20]
The applicants challenge their expulsion by
the NEC on three grounds:
20.1
The NEC acted
ultra
vires
of the union’s
constitution.
20.2
The NEC did not follow a fair procedure;
and
20.3
The decision itself was unfair.
NEC power to expel,
Rabkin-Naicker judgment and the union’s constitution
[21]
The union’s constitution sets out its
organisation and powers.
[22]
The union functions from the bottom up on
four levels: workplace, branch, province and national. Within each of
these levels members
of the appropriate body elect office bearers.
(The first to sixth applicants are all POBs; the seventh is a local
office bearer;
the eighth is a shop steward; and the ninth was a
provincial treasurer).
[23]
Clause 24 of the constitution governs the
discipline and removal from office of office bearers and shop
stewards. It reads:
“
REMOVAL
OF OFFICE BEARERS FROM OFFICE, OFFICIALS AND SHOP STEWARDS
24.1
An office bearer, official or shop steward my be removed from office
if he/she:
24.1.1
infringes any provision(s) of this constitution;
24.2.2
acts in any manner which is detrimental to the interests of the
union.
24.2
No office bearer, official or shop steward may be removed from office
unless he/she has been offered an opportunity to state
his/her case
personally or in writing to the WGM, BEC, PEC or NEC
as
the case may be.
[4]
”
[24]
The constitution then provides for a right
of appeal to the NEC; or, in the case of an NOB, to the national
congress.
[25]
It seems to me clear from the above
provisions that the applicable structure may discipline office
bearers; for example, the PEC
may remove an POB. That expelled POB
may then appeal to the NEC. But the NEC does not have original
jurisdiction, as it were.
[26]
Rabkin-Naicker J came to the same
conclusion in her judgment of 28 May 2015. And that judgment stands.
The respondents have withdrawn
their application for leave to appeal.
[27]
The learned judge pointed out that clause
25 of the constitution deals with the discipline of members (as
opposed to office bearers).
She held 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.”
And the constitution “does not contemplate a situation in which
NOBs
may remove office bearers by means of expulsion, relying on
clause 25 of the constitution.”
[28]
Prima facie
,
the same principles hold true for discipline by the NEC. Only the
“appropriate level” of the union’s structure
may
expel the applicants.
[29]
In any event, the NEC only has the power to
suspend – and not to expel – office bearers in terms of
clause 20.6.11 of
the constitution:
“
The
NEC, subject to the provisions of this constitution, shall have the
power:
…
20.6.11
to suspend any BEC, PEC or office-bearer or members for violations of
provisions of this constitution or in the interests
of the union.”
[30]
Given the provisions of the constitution
and the judgment of Rabkin-Naicker J, I hold that the applicants have
established at least
a
prima facie
right, even if open to some doubt, not to be expelled by the NEC.
That decision should be suspended pending the determination of
part
B.
Balance of convenience
[31]
The balance of convenience favours the
applicants. If their positions are filled before this dispute is
finalised, it will be nigh
impossible to regain them. And they would
be prevented from attending the imminent national congress and the
provincial congresses
preceding the national congress. The
respondents, on the other hand, will suffer no great inconvenience if
the action against the
applicants is suspended.
Apprehension of
irreparable harm
[32]
The applicants have at least an
apprehension of irreparable harm. Should the decision of the NEC
stand, they will not be able to
attend the national congress; their
positions will be filled, and it would be very hard for them to
regain those positions.
Alternative remedy?
[33]
The applicants seek interim relief at this
stage. They have availed themselves of an alternative remedy: that is
the relief sought
in part B of this application.
Eighth and ninth
applicants
[34]
The eighth and ninth applicants, Khumisi
and Mthanthi, have not been expelled. Disciplinary proceedings
against them are pending.
But, based on the discussion above, it
appears
prima facie
that
the NEC does not have the power to discipline them. They have
established at least a
prima facie
right
to interim relief pending the resolution of part B.
Conclusion
[35]
I am satisfied that the applicants are at
least entitled to interim relief pending the resolution of part B of
this application.
[36]
Costs are best left to be decided at that
stage of the application.
Order
[37]
I therefore make the following order:
37.1
The expulsion of the first to seventh
applicants as members and office bearers of FAWU and as delegates to
its national congress
is suspended pending the determination of part
B of this application.
37.2
The disciplinary proceedings against the
eighth and ninth applicants, Messrs Khumisi and Mthanti, before the
NEC and its disciplinary
sub-committee are suspended pending the
determination of part B.
37.3
Costs of this application are to stand over
for determination at the hearing of part B.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Instructed
by
H
M Viljoen (with him J K S Macdonald)
Cowan
Harper attorneys.
RESPONDENTS:
Instructed
by
Terry
Motau SC
Werksmans.
[1]
The Food and Allied Workers’ Union (the first respondent).
[2]
Labour Relations Act 66 of 1995
.
[3]
Chauke
& ors v FAWU & ors
[2015]
ZALCCT 44 (28 May 2015).
[4]
My underlining.