About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 163
|
|
Chemical, Energy, Paper, Printing, Wood and Allied Workers Union v Melani and Another (J2151/15) [2017] ZALCJHB 163 (4 April 2017)
Links to summary
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: J 2151/15
In
the matter between:
CHEMICAL,
ENERGY, PAPER, PRINTING,
WOOD
AND ALLIED WORKERS UNION
and
MHLANGABEZI
MELANI
LAWRENCE NZELE
Applicant
First
Respondent
Second Respondent
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
This is an application for leave to appeal against the entire order
granted by this court on 1 December 2016 when the court
held the
disciplinary action initiated against the first applicant to be in
breach of the applicant’s constitution and therefore
null and
void. I will assume for present purposes that the applicant is
authorised to bring this application.
[2]
The primary ground on which the applicant relies is that the court
misconstrued the applicant’s constitution and its disciplinary
code. To the extent that the applicant relies on a construction of
clause 53 of the constitution to contend that read with clause
7.6,
there is a general delegation of authority to the general secretary
to institute disciplinary action against the first respondent,
it is
clear from the wording of clause 53 that the clause applies to any
person who is either employed by or a member of the applicant.
Moreover, clause 35(2) makes it clear that it is the REC or the NEC
that is required to follow the guide when seeking to institute
disciplinary proceedings.
[3]
To the extent that the applicant relies on clause 7.6 of the code,
the plain meaning of the clause is that the ‘secretariat
acting
in their capacity as representatives of the NOBC’s’
means, as the court held, the secretariat acting with
a mandate
form the NOBC. The wording does not admit of an interpretation, such
as the applicant contends, to the effect that an
individual member of
the NOBC has the power to act on his or her own initiative.
[4]
In relation to the requirement of consultation referred to in
paragraph 7.7 of the code, while it is correct that the code is
a
guideline that does not in itself permit departures from the code for
no justifiable reason. The code requires consultation.
No
consultation took place.
[5]
Finally, in regard to the applicants point on waiver, the code makes
clear that disciplinary proceedings are to be conducted
expeditiously. If the proceedings initiated in October 2015 were a
continuation of the 2014 proceedings, they were in breach of
this
requirement. If they were proceedings
de novo
, they were not
authorised and did not follow on the required consultation with
regional office bearers.
[6]
In my view, there is no reasonable prospect of another court coming
to a different conclusion. None of the grounds relied upon
by the
applicant has any merit. The application stands to be dismissed.
There is no reason why costs should not follow the result.
I
make the following order:
1. The application
for leave to appeal is dismissed, with costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Chambers
4
April 2017