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[2017] ZALCJHB 369
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Nkosi and Others v Nkabinde and Others; In re: Nkabinde and Others v Mhlongo and Others (J1932/17) [2017] ZALCJHB 369 (10 October 2017)
IN THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1932/17
In
the matter between:
EDUCATED
NKOSI & 14 OTHERS
Applicants
and
MANDLA
NKABINDE & 8 OTHERS
Respondents
in re:
MANDLA
NKABINDE & 8 OTHERS
Applicants
and
THAMSANQA
MHLONGO
First Respondent
LUCAS
MASHEGO
Second Respondent
SAMUEL
CHIEF SEATLHOLO
Third Respondent
CHEMICAL
ENERGY PAPER PRINTING WOOD
AND
ALLIED WORKERS UNION (CEPPAWAWU)
Fourth Respondent
Heard:
22 September 2017
Delivered:
10 October 2017
JUDGMENT:
APPLICATION TO INTERVENE
TLHOTLHALEMAJE,
J:
Introduction:
[1]
This is an application in terms
of Rule 22(3)
[1]
of the Rules of this Court. The applicants (Intervening parties) seek
leave to intervene in the main application which came before
the
Court on an urgent basis on 18 August 2017. They further
seek an order that judgment in the main application be stayed
pending
the determination of the application for leave to intervene.
Answering and replying affidavits were duly filed and served
by
20 September 2017.
[2]
The application to intervene flowed from an urgent application (Main
application) heard on 18 August 2017 in which the respondents
sought
a declaratory;
a)
that the National Office Bearers Committee (“the NOBC”)
of CEPPWAWU was not currently composed in accordance with the
relevant provisions of the Union’s constitution and is thus
inquorate;
b)
the first to third respondents be interdicted from taking
any
action which purported to be actions of the NOBC until and unless the
NOBC was properly reconstituted and quorate in accordance
with the
constitution of the Union;
c)
that the notices of intention to suspend the applicants on or
about
11 August 2017 and 14 August 2017 be declared
null and void;
d)
that the First to Third Respondents be interdicted from taking
any
action purporting to suspend the applicants’ employment by
and/or membership of the union and/or suspending the applicants
from
their elected positions within the union; and
e)
that the respondents be interdicted from preventing the applicants
from executing their duties as office bearers and employees of the
union.
[3]
Judgement in the main application was reserved, with a directive
being issued that the current NOBC would not take any action
against
the respondents in accordance with the impugned resolution pending
delivery of judgment.
[4]
On 21 August 2017, the respondents in the main application
through their attorneys of record, Mpoyana Ledwana Inc,
addressed a
letter to the Court seeking leave to file further written submissions
in respect of the application already heard.
An exchange of
correspondence between the parties’ legal representatives
resulted in an agreement in terms of which parties
had to file their
further written submissions by no later than 29 August 2017.
[5]
Following the filing of the application to intervene on
28 August 2017, a directive was also issued to all the
parties,
in terms of which they were given ten days to indicate
whether they would oppose the application. The respondents opposed
the application
to intervene, and the matter was then set down for a
hearing on 22 September 2017.
[6]
The Respondents in the main application did not
per se
oppose
the application to intervene. They had however filed an affidavit in
response to certain allegations made against them by
the respondents
in the application to intervene. These allegations pertained to
whether they in their capacity, represented a minority
faction in the
Union; issues surrounding the source of funding for the majority
faction; and whether they had colluded with intervening
parties.
These issues have in the main, no bearing on the ultimate
determination of the main application, other than to further
demonstrate the fissures prevalent in the Union.
The
submissions:
[7]
The application to intervene was supported by an affidavit deposed to
by Mr. Educated Thethelele Nkosi, the Regional Secretary
of the Wits
Region of CEPPWAWU. He averred that the intervening parties are
leaders of the Union’s regional structures throughout
the
Republic, including Western Cape, Free State, Eastern Cape and North
West Province or are employees of CEPPWAWU at National
level.
[8]
The grounds upon which the intervention is sought are as follows;
8.1.
The respondents launched the
main application on 16 August 2017 against the Union, its,
President, First Vice President
and the Deputy General Secretary, who
also comprise the Union’s NOBC. The NOBC is a six member
committee in accordance with
the Union’s constitution
[2]
,
and comprise of the President, First and Second Vice President, the
General Secretary, the Deputy Secretary and the National Treasurer.
8.2.
Currently there are only three (3) members forming the NOBC, as a
result of the General
Secretary (Mofokeng) having been
dismissed by the Union. The National Treasurer (Sibande) had resigned
from his employment and
no longer qualified to hold that position,
and the Second Vice President, (Dlodlo) had resigned from the Union.
8.3.
The National Congress is the highest decision making body of the
Union and the National
Executive Committee (NEC) must call for the
convening of the National Congress every three (3) years. However,
the National Congress
has not been convened since the year 2011.
8.4.
There are minimal prospects that the National Congress may be called
in the near future
as a result of an order issued by the High Court
Gauteng Local Division, Johannesburg (per Modiba J), which
interdicted the NEC
from holding meetings pending the final
determination of a review of certain resolutions.
8.5.
The applicants have a direct and substantial interest in the urgent
proceedings as the
subject matter of those proceedings may have
prejudicial effect upon the applicants in that:
8.5.1.
If this Court grants the relief as sought in the urgent
proceedings, the consequence thereof is that the Union may be
paralysed
and non-functional;
8.5.2.
Only the NEC may convene a National Congress, as such if no
National Congress is convened, there can be no election of (new) NOBC
members.
8.5.3.
If the NOBC is interdicted from conducting its function, as
the last national structure of the Union, CEPPWAWU will effectively
collapse. There will be no body to distribute funds to regions, to
pay salaries and to represent it at national level.
8.6.
The applicants in their capacities as NEC, Regional Executive
Committee (REC) members and
as employees of the Union are in a
position to assist in the proper interpretation of the constitution.
They seek to achieve that
by opposing the urgent proceedings,
adducing evidence from the drafters of the constitution regarding the
intended meaning of the
NOBC clauses in the constitution, and present
an interpretation from a neutral perspective.
8.7.
If this Court refused the
application to intervene, the applicants risk being severely
prejudiced by any order of this Court granted
without the applicants
being given a hearing in terms of the
audi
alteram paterm
principle
read with section 34
[3]
of the Constitution of the Republic.
[4]
[9]
In his answering affidavit, Mr Mandla Nkabinde opposed the
application to intervene on the following grounds;
9.1.
The application for intervention is not necessary. The Union is a
voluntary association
with legal personality. There is no need for
every member of the association to be joined to these legal
proceedings.
9.2.
The application to intervene in these proceedings is not convenient.
The timing and manner
of the applicants’ proposed intervention
is calculated at frustrating the urgent proceedings.
9.3.
The applicants offer the Court no new factual and material averments
and do not propose
new grounds upon which the urgent proceedings may
be dismissed. The application to intervene is designed by the faction
within
the Union to prevent this Court from determining the
lawfulness of the conduct of this faction. The application is
mala
fide
.
The
applicable legal principles and evaluation:
[10]
The principles to be considered
in applications to intervene in proceedings were succinctly
summarised by the Constitutional Court
in
South
African Riding for the Disabled Association v Regional Land Claims
Commissioner and Others
[5]
as follows;
“
It
is now settled that an applicant for intervention must meet the
direct and substantial interest test in order to succeed.
What
constitutes a direct and substantial interest is the legal interest
in the subject-matter of the case which could be prejudicially
affected by the order of the Court. This means that the
applicant must show that it has a right adversely affected or likely
to be affected by the order sought. But the applicant does not have
to satisfy the court at the stage of intervention that it will
succeed. It is sufficient for such applicant to make
allegations which, if proved, would entitle it to relief.
If
the applicant shows that it has some right which is affected by the
order issued, permission to intervene must be granted.
For it
is a basic principle of our law that no order should be granted
against a party without affording such party a pre decision
hearing. This is so fundamental that an order is generally
taken to be binding only on parties to the litigation.
Once
the applicant for intervention shows a direct and substantial
interest in the subject-matter of the case, the court ought to
grant
leave to intervene. In
Greyvenouw CC
this
principle was formulated in these terms:
“
In
addition, when, as in this matter, the applicants base their claim to
intervene on a direct and substantial interest in the subject-matter
of the dispute, the Court has no discretion: it must allow them to
intervene because it should not proceed in the absence of parties
having such legally recognised interests.””
[6]
[Authorities
and citations omitted]
[11]
Other considerations in such applications include that;
a)
A party seeking to intervene
must demonstrate that he/she is specifically concerned in the issue;
that the matter is of common interest
to him/her and the party he/she
desires to join; and that the issues are the same;
[7]
b)
A party must establish that he
or she has standing, whether as an applicant or plaintiff or as a
respondent or defendant, the test
being ‘whether the party has
a legal interest in the subject matter of the litigation, which may
be affected prejudicially
by the judgment of the Court in the
proceedings concerned’.
[8]
c)
Any person may at any stage of the proceedings, seek leave to
intervene, provided it can be demonstrated that such a person has a
direct and substantial interest in the proceedings.
d)
The application is not frivolous and was made seriously.
[12]
The application to intervene has to be considered against the above
legal principles and the circumstances of this case which
point out
that;
a)
The Union is currently facing implosion, and is in effect, in
a state
of paralysis as a result of a variety of factors. Central to this
paralysis and discord is factionalism that is eating
at the very core
of the Union.
b)
It cannot be seriously disputed that the Union has a long history
of
division that has spawned extensive litigation between various
opposing factions. There are currently numerous matters pending
before this Court, the Commission for Conciliation Mediation and
Arbitration (CCMA), and the Gauteng High Courts, involving the
Union
against several of its members, office bearers and employees.
c)
Further reasons for this untenable state of affairs vary, depending
on which version, various factions seek to advance. The respondents
in the application to intervene attribute the divisions to
the
involvement of a third party (Letsema Investment (Pty) Ltd) in the
internal affairs of the Union. In this regard, it is alleged
that
Letsema has laid claim to 27.5% share in the Union’s
investments amounting to several billion Rands held in CEPPWAWU
Investments (Pty) Ltd. The 27.5% share is alleged to be worth in
excess of R1bn, which allegedly constitutes Letsema’s
remuneration
for ‘investment advice’ provided to the
Union.
d)
The Unions’ untenable state of affairs did not escape
the
attention of the Registrar of Labour Relations, who had in 2015,
applied to this Court for an order in terms of section 103
of the LRA
to place the Union under administration. It is common cause that the
Minister of Labour intervened in that process.
e)
Another contributing factor to the state that the Union finds
itself
in is that it has not held a National Congress since September 2011,
and part of the reason is that the one faction had
in April 2016,
obtained a court interdict in terms of which an NEC meeting
could not be convened pending the outcome of another
application to
have certain NEC resolutions set aside. At the hearing of this
application, the Court was advised,
albeit
based on
unconfirmed reports at the time, that by agreement between the
warring factions, the interdict has since been lifted.
f)
Sadly, amidst all the factionalism, squabbles and fights,
whether for
power or control of the Union investments, the interests of its
ordinary members, who are the actual source of that
power and main
contributors to the investments in question through their hard earned
subscriptions, have become secondary if not
forgotten.
g)
In the face of the interdict against the convening of a National
Congress and the depletion of the structure of the National Office
Bearers, the only functioning structure with the highest authority
is
accordingly the NOBC, as is provided by Clause 6 of the Union’s
constitution. This clause provides that the Union’s
structures
and general spheres of authority comprise of;
i.
Members
ii.
Shop stewards and shop stewards committees
iii.
Local shop stewards councils (LSSC)
iv.
Regional Executive Committees (REC)
v.
National Executive Committee (NEC); National Office Bearers Committee
(NOBC)
and National Congress (NEC)
h)
Arising from the main application are in essence, the
consequences of an order to be granted, should the applicants in that
case be successful. The main issue for consideration in that
application is the function and authority of the NOBC in accordance
with the Union’s constitution, in the absence of a properly
constituted NEC, NOB and itself.
i)
The outcome in the main application obviously has consequences
not
only for the protagonists in this and other various matters before
the Courts and the CCMA, but also for ordinary members of
the Union,
who are basically the casualties of a war of attrition between the
warring factions. Also invariably affected are the
Union’s
employees and the overall general functioning of the Union as a
whole.
j)
The respondents in opposing the application to intervene
had
contended that since the union is a voluntary association with legal
personality, it may litigate in its own name and was the
appropriate
party to be joined to litigation by members asserting a violation of
the constitution, and that it was therefore not
necessary to join all
other members.
k)
The difficulty however with that proposition is that on the
respondents’ own version, the NOBC, which in effect is running
the affairs of the Union in the absence of anything else does
not
have authority to do so, as it is currently inquorate. The question
to be posed therefore is that if the respondents speak
of a Union can
litigate or defend litigation in its own and members’ rights,
which Union in the light of this quagmire is
being referred to?
l)
It is therefore apparent that everybody associated with
the Union in
whatever capacity, and more specifically the ordinary members,
clearly have a direct and substantial interest in the
proceedings of
the main application as all would be affected in one way or the other
by any outcome arising therefrom. This is
even moreso, since the very
existence of the Union or its authority through the NOBC is being
questioned and challenged.
m)
The 15 intervening parties by virtue of their various capacities
clearly
have a standing, and their legal interest may clearly
be affected prejudicially by the judgment of the Court in the
proceedings
concerned. They consist of a variety of individuals
country-wide including ordinary members, chairpersons of the ROBs,
members
of the NEC, employees of the union, organisers or
administrators, and shop stewards.
n)
It is appreciated that this application was brought before the
Court
after the main application was heard. However, whilst judgment was
pending, the respondents in that application had
sought leave
to file further heads of argument which the parties had consented to.
The respondents therefore cannot complain of
delays in the
finalisation of the main application.
o)
There can therefore be no prejudice to the applicants in the
main
application nor this application for that matter if leave to
intervene is granted
albeit
at this belated stage. I further
have no reason to hold that the application is frivolous, and the
seriousness with which this
matter demands attention, inclusive of
the need for intervention cannot be emphasised in the light of the
issues to be determined
in the main application.
[13]
In conclusion therefore, and having considered the background and
circumstances of this case, and upon a consideration of the
applicable legal principles, I am satisfied that the applicants in
this case have demonstrated direct and legal rights, which would
be
affected by the order to be granted in the main application.
[14]
There is therefore no basis to hold that there is a distinction
between the Union and its members as former cannot exist without
the
latter. The issues surrounding the motives for the application to
intervene, and which faction support which, or was funded
by whom,
are entirely irrelevant for our present purpose, and there is further
no basis for a conclusion to be reached that the
intervention at this
stage is not convenient.
[15]
In opposing the application, and to the extent that the Court was
inclined to grant the intervention, it was submitted
that the
Court should also join two other pending applications to this Court
that touch upon the quorum and powers of the NOBC
in accordance with
their notice of a contingent counter-application. These are matters
under case number J1470/17 concerning the
‘unlawful
disciplinary action’ against the Union’s General
Secretary (Mofokeng), and case number J1893/13 concerning
‘the
unlawful reinstatement by the inquorate NOBC of the Union members and
employees previously expelled and dismissed’
.
[16]
The respondents in the main application did not necessarily oppose
the counter application, other than to point out various
issues that
militated against a joinder. Central to that concern is that those
pending applications were not ripe for a hearing.
Other than that, it
is my view that an application to intervene should not be seen as a
bargaining arena to push up matters that
are waiting for their turn
in the litigation queue. Furthermore, I am not convinced that
sufficient grounds have been advanced
to demonstrate that the merits
of the two cases sought to be joined to the main application are
exclusively confined to the determination
of the powers of the NOBC
to take the disciplinary actions it took leading to the disputes in
those cases. The counter application
therefore ought to be dismissed.
In regards to costs, it is my view that these should be determined
together with the costs in
the main application.
Order:
[17]
Accordingly, the following order is made;
1.
The Applicants are granted leave to intervene as the Fifth to
Twentieth Respondents in the urgent application instituted under the
present case number.
2.
The Applicants are granted leave within seven (7) days from
the date
of this order, to file any further submissions in respect of the
urgent application.
3.
The Respondents in this application are to within seven (7)
days from
receipt of the Applicants’ submissions in terms of (2) above,
ordered to file a response thereto.
4.
The parties in the application to intervene are excused from
Court,
and the urgent application will be determined based on the
submissions already made on 18 August 2017, together with those
as
shall be submitted in terms of paragraphs 2 and 3 above.
5.
The Respondents’ counter application is dismissed.
6.
Costs in respect of this application will be determined together
with
those of the urgent application.
_____________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants:
Adv. D Mpofu SC with Adv. K Pillay
Instructed
by:
Sefalafala Inc. Attorneys
For
the First to Ninth Respondents:
Adv. H Viljoen
Instructed
by:
Stephen Hardie Attorneys
For
the Tenth to Further Respondent:
Adv. M Chauke
Instructed
by:
Mpoyana Ledwaba Inc. Attorneys
[1]
Rule 22: Joinder of
parties, intervention as applicant or respondent, amendment of
citation and substitution of parties
(1)…
(2)…
(3)
Any person entitled to join as a party in any proceedings may, on
notice
to all parties, at any stage of the proceedings, apply for
leave to intervene as a party and the court may make an order,
including
any order as to costs, or give such directions as to the
further procedure in the proceedings as it deems fit.
[2]
Chapter 12
[3]
Section 34:
Access to
courts
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.
[4]
Constitution Of The Republic Of South Africa, 1996
[5]
2017 (8)
BCLR 1053 (CC)
[6]
At
paragraphs 9 – 11. See also
Snyders
v De Jager (joinder)
2017 (5) BCLR 604
(CC)
at
paragraph 9
[7]
See
Harms:
Civil Procedure in the Supreme Court at page B-III [issue 37] at
par. B 12. 3; Shapiro v South African Recording Rights
Association
Ltd (Galeta Intervening)
2008 (4) SA 145
(W).
[8]
Bowring NO v Vrededorp
Properties CC & another
2007 (5) SA 391
(SCA) para 21.