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[2017] ZALCJHB 265
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South African Chemical Workers' Union (SACWU) and Another v Modise (J1524/17) [2017] ZALCJHB 265 (7 July 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
No: J 1524/17
In
the matter between:
SOUTH
AFRICAN CHEMICAL WORKERS’ UNION (‘SACWU’)
First
Applicant
MOSEHLE
PETRUS MAMPHO
Second
Applicant
and
THOMAS
TUMEDISO MODISE
Respondent
Heard
:
06 July 2017
Delivered
:
07 July 2017
Summary:
(Urgent – to interdict the union’s general secretary from
convening a purported meeting of the union – labour
court
jurisdiction under s 158(1)(e)(i) – confined to disputes about
the interpretation and application of the constitution
between union
members and a union – does not extend to a dispute between the
union and an office bearer who is not a member)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an urgent application interdict brought by the President of
the applicant in his own right and on behalf of the first
applicant
(‘SACWU’) as authorised by a resolution of the National
Executive Committee of the union.
[2]
The applicants seek to stop the respondent, who currently holds the
position of general secretary of the union proceeding to
convene a
so-called “One Day reporting National Congress” on
Saturday, 8 July 2017. They also seek to act in to act
on behalf of
the union in convening meetings or taking any decisions in
contravention of the union’s Constitution, and various
other
ancillary relief.
[3]
At the start of the proceedings, the court
mero motu
raised a
concern about its jurisdiction to entertain the application on the
basis that the court’s jurisdiction to intervene
in intra-union
disputes is founded on section 158 (1) (e) (i) of the Labour
Relations Act, 66 of 1995 (‘ the LRA’),
which states:
(1) The Labour
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);...” (emphasis added)
[4]
Initially, it was argued that the respondent as an office bearer of
the union and as the office bearer as the general secretary
of the
union that was also a member of the union by virtue of being part of
the executive Council under clause 10.1.1, and a member
of the
“National Office Bearers” which is defined to be a
substructure of the National Executive Council under clause
10.3.1 of
the Constitution. However, applicant’s counsel rightly conceded
that membership of such structures of the union
was not the same as
being a member of the union itself. The notion of union membership in
s 158(1)(e) is clearly the more fundamental
one of being a member of
a union by virtue of applying and being admitted as one. The
reference in that section to ‘applicants
for membership’
is irreconcilable with a concept of membership based only on being a
participant in a substructure of the
union.
[5]
It was then suggested that the general secretary might in fact be a
member in the ordinary sense meant in that subsection, but
the
applicants were unable to produce any evidence of the respondent’s
union membership after the court stood the application
down for a
couple of hours to give them an opportunity to adduce some evidence
to that effect.
[6]
Ms Lottering
, who appeared for the applicants, then advanced
an ingenious alternative argument. Instead of focusing on the
membership status
of the general secretary, she inverted the issue by
relying on the membership status of the President, which she
contended could
be inferred from the fact that in terms of the
Constitution, the President must be a union member. It was argued
that the dispute
over the interpretation and application of the
Constitution between the applicants and the respondent should be
construed as a
dispute between the President (a union member) as the
second applicant and the respondent, who purported to be acting as a
representative
of the union. In other words, the respondent now
assumed the mantle of the union party to the dispute with the member
being the
President, by virtue of the respondent purporting to be
acting for the union in convening the meeting which the applicants
sought
to prevent.
[7]
The fundamental difficulty with this reconfiguration of who
supposedly represents the respective union and member parties to
the
dispute for the purposes of s 158(1)(e) is that, the President
himself brings the application jointly with the union against
the
respondent and attaches a resolution of the union’s NEC
authorising him to initiate and prosecute the application in
its
name. The President cannot on the one hand assert the union’s
status as a co-applicant in dispute with the respondent,
while on the
other hand claiming that the union party to the dispute is in fact
the respondent because of his purported representative
capacity.
[8]
The respondent also argued that the President had not in fact been
eligible for election at the union’s last National
Congress by
virtue of not being employed in any of the industrial sectors in
which a SACTWU member must be employed, and that consequently,
he did
not claim to be the “union member” party to a
dispute under the subsection. That claim is not properly
substantiated on the papers, but in any event is not necessary to
decide on this occasion.
[9]
In the circumstances, I am not satisfied that the applicant has made
out a case that the dispute falls within the ambit of 158(1)(e)
which
circumscribes the Labour Court’s jurisdiction to
intervene in intra-union disputes. It may be somewhat anomalous
that
the legislature did not deem it fit to extend this court’s
jurisdiction to deal with all intra-union disputes including
disputes
between any interested parties with
locus standi
to enforce
the provisions of a union constitution vis-à-vis other
parties, but the mere existence of an anomaly does not
entitle the
court to effectively amend the LRA just because it makes sense for a
specialist court of this nature to be able to
deal with all such
internal constitutional disputes of unions or employer organisations.
[10]
The applicants are still at liberty to use the common law remedies
available to enforce the provisions of the union’s
Constitution
to nullify any unlawfully constituted meeting and set aside any
decisions taken at it.
[11]
On the question of costs, I am satisfied that considerations of
fairness dictate that applicants should not bear the respondent’s
costs because the outcome of the application was decided not on the
merits of the application, but simply on a jurisdictional point,
which neither party was aware of prior to the hearing.
Order
[12]
The application is dismissed for lack of jurisdiction.
[13]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
U
Lottering instructed by De Korte Du Plessis Inc
RESPONDENT:
L
A Musi instructed by Mabuza Attorneys