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[2017] ZALCJHB 429
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Mathole and Others v Governing Body of the CCMA and Others (J2722/17) [2017] ZALCJHB 429; (2018) 39 ILJ 1079 (LC) (20 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Of Interest to Other Judges
Case
no: J 2722/17
In
the matter between:
EPHRAIM MATHOLE & OTHERS
Applicant
and
GOVERNING BODY OF THE CCMA
First Respondent
COMMISSIONER EVA NGOBENI
N.O
Second Respondent
COMMISSIONER SETLAGO MORWA
N.O
FOUNDATION/PEN/EIENDOM
BELEGGING/CBD
RESIDENCY
Third Respondent
Fourth Respondent
Heard:
15
November 2017
Delivered:
15 November 2017
Reasons:
20
November 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The
applicant, Mr. Ephraim Mathole (Mathole), purportedly acting on
behalf of other unidentified individuals approached this Court
on
3 November 2017 on an urgent basis seeking what appears to
be interim relief. The nub of the relief sought, to the
extent that I
can make sense of it, is to compel the first respondent (CCMA
Governing Body) to do certain things, including dealing
with his
application before the Commission for Conciliation Mediation and
Arbitration (CCMA); dealing with certain allegations
of corruption,
bribery, nepotism, abuse of powers, mismanagement, maladministration,
fraud; to take disciplinary action against
the third respondent
(Commissioner Setlaga Morwa) on account of allegations of misconduct;
and to deal with allegations of victimization
against him by unnamed
CCMA officials in respect of certain matters he had brought before
the CCMA. He further seeks an order in
terms of the provisions of the
Labour Reations Act (LRA)
[1]
and
the Constitution of the Republic
[2]
that he has
locus
standi
to refer a dispute against the fourth respondents on behalf of
individuals he purportedly represents to the CCMA for determination.
[2]
The
curious and confusing nature of the type of relief sought is
self-evident and I will not burden this judgment in this regard,
save
to state that at the core of the opposition of this application by
the fourth respondents is that Mathole lacks the requisite
locus
standi
to approach this Court and by extension the CCMA, in respect of this
matter.
The legal position:
[3]
One
of the most important requirements for any legal action is
locus
standi
(
in
judicio
),
which is essentially the right to institute action. In other words,
it relates to the right or legal capacity of a party to sue
or be
sued, or a party’s right to make a legal claim or seek judicial
enforcement of a duty or a right
[3]
.
It is apparent that this right is directly linked to access to
justice and in particular, to Courts as guaranteed under section
34
of the Constitution
[4]
.
[4]
In
United
Watch and Diamond (Pty) Ltd v Disa Hotels Ltd
[5]
the court explained the test for determining this right or legal
capacity as follows;
"to establish that one has
locus
standi in judicio
, one must show,... that he has an interest in
the subject matter of the judgment or order sufficiently direct or
substantial..."
[5]
The
right or standing to institute or defend against proceedings is not
dependent on the success or merits of a case. It is a condition
precedent to a determination on the merits. In a nutshell, if the
applicant has no
locus
standi
or standing to litigate, it is not even necessary to consider whether
there is a genuine case on the merits or not. That applicant’s
case must then be struck out or dismissed as not being properly
before a court or tribunal.
[6]
The
starting point with any litigation is that any person approaching a
court or labour dispute resolution forum must have the necessary
authority or
locus
standi
to do so. The provisions of section 161 of the Labour Relations Act
dictates as to who can appear and represent parties in this
Court
[6]
.
Thus, given the special dispensation of our labour dispute
resolution, other than merely demonstrating that a party has a direct
or substantial interest in the subject matter of the litigation,
these Rules set out certain criteria to be met before a party
can
litigate or defend a matter in the Court.
[7]
The
above principles also apply to Rule 25 of the CCMA Rules, which
equally makes provision as to who can appear or represent parties
at
CCMA proceedings
[7]
. Other
statutory labour dispute resolution bodies have similar rules.
[8]
The
prevailing theme in both section 161 (2) of LRA and Rule 25 (1) (d)
of the CCMA Rules for the purposes of this case is that
an individual
professing to be a union official/employer representative in
proceedings before the Commission or the Court, is specifically
prohibited from charging a fee or receiving a financial benefit in
consideration for agreeing to represent that party, unless permitted
to do so by the Commission or an order by the Court.
[9]
The
Supreme Court of Appeal in
Commission
for Conciliation, Mediation and Arbitration and Others v Law Society
of the Northern Provinces (Incorporated as the Law
Society of
Transvaal
)
[8]
has pronounced on the constitutional validity of the Rule 25 (1) (c)
of the CCMA Rules, and I will not burden this judgment with
the
conclusions reached therein as they are not pertinent to this case.
[10]
As
to under what circumstances a Court, or the CCMA can permit any
person other than a legal practitioner to represent a party in
proceedings for a fee is not clear from the Rules. One can only
assume that the factors to be considered in that regard for the
purposes of CCMA proceedings, would include those in Rule 25 (1) (c).
For the purposes of court proceedings, one can only assume
that
factors to be considered would include whether it is in the public
interest to grant permission, or whether it would be in
the interests
of justice to permit such individuals to represent others at
proceedings for a fee.
[11]
There
is further tendency amongst individuals who have no
locus
standi
before either the Court or CCMA to contrive a self-serving and
incorrect interpretation to the provisions of section 189 (1) (d)
of
the LRA
[9]
. These individuals
suggest that these provisions entitle them to represent employees and
be consulted in retrenchment processes
in the event that those
employees likely to be affected by retrenchments do not belong to a
trade union.
[12]
A
reading of these provisions as open-sesame for anybody from anywhere
to raise a hand and claim to be entitled to represent employees
under
those circumstances cannot be correct. It would imply that anybody
from the street, unrelated to the issues, or uninterested
and
ignorant of the facts may claim a right to represent those employees.
This would create a circus out of the retrenchment process
and prove
untenable for employers. It would also be an avenue for people with
nefarious intentions to exploit the employees facing
retrenchments in
the name of helping them. The facts of this case illustrate this
mischievous end sought to be achieved by this
incorrect
interpretation of these provisions.
[13]
The
provisions of section 189 (1) (d) of the LRA can only be interpreted
to mean that in the event that the employees to be retrenched
do not
belong to a trade union, the employer
must
consult
with
those
employees or
their
nominated representatives
.
The ‘
nominated
representatives’
in question can only be those from their
own
ranks, in the sense that those employees must appoint someone amongst
them to act as their representative. This therefore cannot
imply that
the representative can be some other persons from the streets.
[14]
Flowing
from the above, it follows that individuals who do not meet the
requirements set out in Rule 25 of the CCMA Rules, and then
masquerade as union officials in order to solicit hard earned money
out of recently dismissed employees with a promise of taking
up their
labour disputes either in courts or labour dispute resolution
institutions, are nothing less than fraudsters.
[15]
These
individuals are shameless predatory leeches. They feed off the misery
and plight of vulnerable and unsuspecting members of
the public, who
find themselves in hard times and desperate after a loss of a job.
They are common criminals, and the CCMA
and Courts should act harshly
against them in order to protect vulnerable members of our society.
[16]
It
cannot be doubted that a loss of a job is a death sentence on its own
not only to the ex-employees but also to those dependent
on them for
support. To therefore be stalked upon and taken advantage of by these
marauding criminals after a loss of a job with
false promises, is to
add salt to injury. My exasperation with these lowlifes will be
appreciated within the context of the facts
of this case.
The background to this urgent
applications and conclusions:
[17]
The
central figure in this sorry saga is Mathole, who has cited himself
as the applicant in this application. The union he purports
to be an
official of, HOCAFAWU, has disowned him in a sworn affidavit. As
shall become clearer in this judgment, and based on his
own
admissions during his submissions in court, Mathole together with
another individual he had named as ‘Matemane’
(A Branch
Secretary of HOCAFAWU), solicited an amount of R4 000.00, from
individuals he purportedly acts on behalf of in this and
other cases
before the CCMA.
[18]
The
unidentified individuals (a list is not attached to the founding
affidavit) used to be employees of the entities collectively
cited as
the fourth respondent. The respondents (Herein referred to as ‘PEN’),
other than CBD Residency are a Foundation
under the operating name,
129 Vermeulen Straat Eiendoms Belegging (Pty) Ltd. The Foundation
provides affordable accommodation to
students. PEN as a whole is a
Section 21 company involved in social upliftment and is faith based
organisation running social programmes.
[19]
The
individuals purportedly represented by Mathole were retrenched by PEN
in or around July 2017. At the time of their retrenchment
they
did not belong to any union. Prior to the conclusion of retrenchment
process, Mathole approached PEN, and claimed that he
was a union
representative from HOCAFAWU, and thus sought to represent the
employees.
[20]
The
contents of Mathole’s founding affidavit are difficult to
decipher. Any attempt at making sense of what his case is all
about
from that affidavit is truly migraine inducing. He nonetheless
contends that he was asked by the employees to intervene on
their
behalf prior to their retrenchments. Management of PEN however
refused to talk to him when he attempted to intervene. Undeterred,
Mathole referred a dispute pertaining to disclosure of information to
the CCMA in July 2017 under case number GATW9520-17.
This
dispute was set-down for conciliation in the same month.
[21]
On
28 July 2017, Mathole launched an urgent application in
this court under case number J1465-2017 to interdict the respondents
from dismissing the employees he purportedly represented. Ironically,
he accused PEN of
inter
alia
seeking to proceed with a ‘
purported
and fraudulent dismissal’
against the employees. He had further alleged that he represented the
employees under HOCAFAWU. That urgent application according
to the
respondents was incomplete and with no annexures. This appears to be
the trend and his
modus
operadi,
as the current application was equally filed without the annexures
referred to in the affidavit. The respondents contend that this
urgent application also filed on 27 July 2017 and
immediately enrolled on the urgent roll without being served on them
until 28 July 2017.
[22]
The
urgent application under case number J1465/2017 was set down for a
hearing on 4 August 2017. In the evening of 3 August 2017,
Mathole purportedly acting on behalf of HOCAFAWU filed a notice of
removal of the urgent application from the roll, on the basis
that
the parties had signed a settlement agreement to resolve the dispute.
[23]
PEN
and CBD had opposed the urgent application, and had taken exception
to the notice of removal of the matter and indicated to
Mathole that
he should attend the court proceedings as scheduled. Prior to the
hearing date, PEN had made its own investigations
with HOCAFAWU, and
it was established that Mathole was not its official as he had
consistently presented himself in his dealing
with the respondents.
The union’s General Secretary’s affidavit in this regard
will be dealt with shortly.
[24]
Mathole
did not attend to the urgent application he had set-down. It was then
dismissed by Prinsloo J with an order that he should
make written
representations as to why he and HOCAFAWU should not be held liable
for the costs incurred by PEN and CBD, including
the costs of two
counsel. They were given until 21 August 2017 to file an
affidavit in that regard.
[25]
Mathole
did not file representations as ordered by Prinsloo J. He instead
filed a rescission application in circumstances where
he had elected
not to attend the court proceedings he had initiated and set-down.
Even if there was any merit in any contention
that he had removed the
matter from the roll, this was no justification to be absent from
court. His contention was that he did
not ‘
bother’
to attend the court as the matter was properly removed from the
roll. It is unheard of for a party to bring others to court
and
simply not show up at proceedings on the basis that a matter was
removed from the roll on short notice and without a tender
of costs.
Such conduct constitutes utter abuse of the court process, especially
the court’s continuously over-burdened urgent
roll.
[26]
Despite
the above conduct, Mathole was not done. In his affidavit in the
present matter, he contends that the Prinsloo J’s
order was
‘
obtained
by improper means such as fraud and corruption’
in his absence, as he had properly removed the matter from the roll.
This is indeed ironic. It is a cheap shot, coming from someone
disowned by HOCAFAWU as a fraudster.
[27]
On
21 August 2017, an affidavit was obtained from HOCAFAWU’s
General Secretary, Ms. Linah Mashala
[10]
.
The net effect of that affidavit in contending why HOCAFAWU should
not be liable for costs in a matter before Prinsloo J is that
the
union does not know Mathole, nor does it know the people he
purportedly represents under its name. Ms. Mashala further averred
that Mathole is using the name of HOCAFAWU for his own benefit and is
not recognised by the union.
[28]
Mathole’s
contention was that the affidavit was obtained out of the Union
because there is collusion between it and the respondents’
attorneys. The conspiracy theory is nonetheless a smokescreen as on
his version as shall later be demonstrated, he could not show
whether
he was a
bona
fide
union official. There cannot be any other meaning to be ascribed to
Mashala’s averments. It is apparent that Mathole is a
fraudster, as he is masquerading as a union official.
[29]
In
the answering affidavit in this matter, it is averred that Mathole
despite being disowned by HOCAFAWU, had made multiple false
and
misleading averments under oath regarding his capacity and status as
a legal representative and member of HOCAFAWU, which amount
to
perjury, and thus a criminal offence. I could not agree more with
these submissions, as shall further be more evident in my
exchanges
with him in court as shall be illustrated in due course.
[30]
PEN
and CBD had submitted representations as to why Mathole should be
held personally liable for costs in the application before
Prinsloo
J. Amidst the shenanigans, Mathole somehow managed to secure a
settlement agreement out of PEN on 1 August 2017
in the
amount of R294 117.00 for each of the employees he purportedly
represented. Amongst the relief he seeks in the notice of
motion is
an order making that settlement an order of court. As to how he had
managed to secure that settlement agreement out of
PEN is unclear
from his convoluted founding affidavit. On 7 August 2017,
Mathole sent correspondence to PEN and CBD,
demanding settlement in
terms of the agreement. The settlement agreement and the amounts
therein are seen by PEN as an attempt
at extortion in view of the
fact that the ex-employees were paid their retrenchment packages.
[31]
The
initial dispute referred to the CCMA in regard to disclosure of
information was set down for a hearing on 11 September 2017
before Commissioner Ngobeni, the second respondent. A preliminary
point was raised in those proceedings by the respondents that
Mathole
lacked the requisite
locus
standi
to act on behalf of the dismissed employees.
[32]
Commissioner
Ngobeni agreed in a ruling issued on 21 September 2017,
pointing out that Mathole had not satisfied the requirements
under
Rule 25 (4) of the CCMA Rules. Mathole therefore could not appear
before the CCMA, and the Commissioner had also advised
the individual
employees of their rights to secure alternative representation.
Before the Commissioner at the time the ruling was
made was the
Mashala affidavit, in terms of which HOCAFAWU had disowned Mathole.
It was therefore apparent at that stage that Mathole
was indeed a
fraudster and nothing else.
[33]
Mathole
nonetheless takes issue with the ruling, and contends that
Commissioner Ngobeni did not also determine the
locus
standi
of PEN’s representative. In similar fashion, in these
proceedings, Mathole sought to question the
locus
standi
of the respondents’ counsel. In Mathole’s parallel
universe, when his
locus
standi
is
disputed, a ruling in that regard confirming that he lacks
locus
standi
can only be fair if his opponents’
locus
standi
is equally questioned. In the same universe, Mathole seriously
believes that legal representatives are not allowed to represent
parties at arbitration proceedings, notwithstanding the fact that
they wish to raise jurisdictional points, because Rule 25 of
the CCMA
Rules says so.
[34]
Mathole’s
tenacity is clearly in abundance and limitless. Undeterred by
Commissioner Ngobeni’s ruling, he then on 26 September 2017
made an application at the CCMA to substitute HOCAFAWU as a party in
his referral to that of his name in his personal capacity.
In seeking
a substitution, he relied on the provisions of section 189 (1) (d) of
the LRA. This is indeed strange in view of his
continuous assertions
that he acts under that union. In the meantime, he also launched an
application to review that ruling under
case number JR2307-2017. PEN
denies having received a copy of the review application. The
application to substitute before the
CCMA was dismissed by the third
respondent, Commissioner Setlago Morwa on 13 October 2017.
[35]
Notwithstanding
the dismissal of his application to substitute, Mathole caused the
CCMA to issue subpoenas in respect of certain
individuals associated
with PEN, to appear at arbitration proceedings scheduled for
9 November 2017 in respect of his
initial referral. This he
obtained notwithstanding the fact that in terms of Commissioner
Ngobeni’s ruling, he could no longer
appear as he had no
locus
standi.
[36]
The
Governing body of the CCMA did not oppose this application despite
being cited as the first respondent in these proceedings.
I am
uncertain as to the reasons it did not oppose this application. The
most likely one is that Mathole did not serve his papers
on it. My
concern nonetheless is the reason CCMA continues to indulge Mathole
in the face of its own standing ruling that he has
no
locus
standi
.
This is clearly beyond comprehension, unless the CCMA finds some
entertainment value in his shenanigans.
[37]
The
future of 18 or so ex-employees of the respondents and that of their
dependants is at stake as they find themselves without
a job and a
support base. These ex-employees are entitled to expeditious
finalisation or resolution of their dispute. There cannot
therefore
be any entertainment value in all of this farce orchestrated by
Mathole in the name of these employees, and there are
clearly no
reasons why he should be indulged any further by the CCMA.
[38]
Mathole’s
conduct is not doing any justice or favours to these ex-employees’
case. On the contrary, the more Mathole
under false pretexts
continues to litigate on their behalf, the longer it would take to
have their matter be resolved. This case
and all other cases before
the CCMA purportedly brought on behalf of these ex-employees are no
longer about them. They are now
about Mathole, who appears to be on
an ego and self-righteous trip. The CCMA is unfortunately dancing to
his out of sync tune,
by indulging him when by law, and based on its
own ruling it should not.
[39]
I
am constrained to say that by indulging Mathole in these
circumstances, the CCMA in effect is failing in its obligations
towards
the ex-employees, as they clearly need protection from him.
These employees are entitled to an expeditious resolution of their
dispute, and Mathole is clearly not conducting himself in their best
interests or to that end.
[40]
The
essence of Commissioner Ngobeni’s ruling is that Mathole is not
supposed to be anywhere near the CCMA’s premises
in pursuance
of that dispute or any other dispute for that matter. Once it was
established that he had no
locus
standi
,
this meant that he could not take any steps in respect of the
referral before the CCMA, including a request to have subpoenas
issued. In effect, the CCMA should treat him as
persona
non-grata.
Equally
so, and on the strength of Commissioner Ngobeni’s standing
ruling, this Court and any other statutory labour dispute
resolution
bodies should treat Mathole likewise. This is until such time that he
can demonstrate that he has the necessary
locus
standi
to litigate.
[41]
The
various factors highlighted in this judgment clearly point to the
invariable conclusion that Mathole is indeed a fraudster,
who
together with his colleague he had identified as HOCAFAWU’s
branch secretary, Matemane, masquerade as union officials
and solicit
money out of vulnerable employees for a living. If ever there was any
doubt about this fact, it was put to rest through
my exchanges with
him in court which I deem appropriate to extract from the record. The
exchanges went as follows;
MR MATHOLE
:
Ja, thank you, M'Lord. I think you are right, I can deal with
the issue of locus standi, why I thought I had locus
standi, M'Lord.
I think that is the major point that I can deal with, M'Lord.
M'Lord, let me just, I will give you,
because the pagination is not
proper, I cannot, but I will try to refer on the bundle that I have.
We have a dispute, I was
approached by the various employees of the
fourth respondent concerning a purported retrenchment internally.
We normally
work with the union called HOCAFAWU. We have a
union in Pretoria, it is HOCAFAWU. We have so many cases,
M'Lord, where
we represent through HOCAFAWU.
I wrote, I contacted the branch
secretary of HOCAFAWU in Pretoria called Mr Matemane, that we have
these employees where a retrenchment
is pending, that, Matemane,
these employees were not members of the union, I have to be clear on
that regard. Then Mr Matemane
said, no, let us take this
matter, M'Lord, but these people they must pay some logistic money
for the union, and he said they must
pay at least plus/minus R4 000
to the union, M'Lord, which the employees did …[intervenes]
COURT
:
Sorry, let me understand this. These employees of the fourth
respondent were not members of the union?
MR
MATHOLE
:
They were not the members of the union.
COURT
:
So how many employees are we talking about?
MR MATHOLE
:
It is plus/minus 18, but there were …[intervenes]
COURT
:
Sorry?
MR MATHOLE
:
Plus/minus 18 of them, but there were others, there were more than 50
but most of them were not affected.
COURT
:
Alright, so we are talking about 18 employees?
MR MATHOLE
:
Ja, 18 employees that were …[intervenes]
COURT
:
Now, of these 18 employees, because you wanted to represent them they
had to pay an amount of how much?
MR MATHOLE
:
He said plus/minus R4 000 so that …[intervenes]
COURT
:
R4 000 each or for the whole group?
MR MATHOLE
:
No, the whole group.
COURT
:
For the whole group?
MR MATHOLE
:
Yes, so that we can assist them, that is correct.
COURT
:
And they paid it?
MR MATHOLE
:
And they paid it, M'Lord.
COURT
:
These employees paid that amount?
MR MATHOLE
:
That is correct, they gave it to me and I gave it to, we paid to Mr
Matemane the …[intervenes]
COURT
:
Mr Mathole, I want you to understand the consequences of what I am
asking you …[intervenes]
MR MATHOLE
:
Okay, they paid…
COURT
:
And I am going to repeat my question again.
MR MATHOLE
:
Yes.
COURT
:
This plus/minus 18 employees, who came to you for assistance or who
you approached to assist to them …[intervenes]
MR MATHOLE
:
That is correct.
COURT
:
Were asked to pay an amount of R4 000 in order to get assistance
from the union?
MR MATHOLE
:
That is correct, M'Lord.
COURT
:
Did they pay it into the union’s account or did they pay it
into any individual’s account?
MR MATHOLE
:
They normally pay to Mr Matemane.
COURT
:
Who is he?
MR MATHOLE
:
The branch secretary for Pretoria.
COURT
:
The branch secretary?
MR MATHOLE
:
Yes.
COURT
:
Now do we know where the money went to?
MR MATHOLE
:
The money went to Mr Matemane, the money went to …[intervenes]
COURT
:
To his account?
MR MATHOLE
:
Yes, to his account, M'Lord.
COURT
:
Sorry, what is the person’s name again?
MR MATHOLE
:
Mr Matemane.
COURT
:
Matemane?
MR MATHOLE
:
Yes.
COURT
:
What is his name, the other name, Matemane?
MR MATHOLE
:
They call him Matemane, his name is Matemane.
COURT
:
And his first name you do not know?
MR MATHOLE
:
His first name, they normally, that is his first, that is his African
name, Matemane.
COURT
:
But he is the branch secretary?
MR MATHOLE
:
He is the branch secretary of …[intervenes]
COURT
:
Of this union?
MR MATHOLE
:
Ja, in Pretoria. When we have cases we approach him. We
have so many cases where we approach him for assistance,
we assist
these employees by contracting him, and he normally said because
these people are not members of the union, they must
pay so much
amount of money.
COURT
:
So that money was paid into his personal account?
MR MATHOLE
:
That is correct, M'Lord.
COURT
:
Yes.
MR MATHOLE
:
Yes. Can I proceed?
COURT
:
Sorry, maybe just to get a few more details, when was this amount
paid?
MR MATHOLE
:
I have to check, M'Lord, but it was paid, I think, when, it was paid
somewhere in September, September or October, October,
August, sorry,
August.
COURT
:
August this year?
MR MATHOLE
:
Ja, August, because the matter started in July, we referred a matter
to the CCMA for conciliation, for disclosure of information.
COURT:
Alright, no, no,
I get it thus far. Now tell us about your own involvement with
the union.
MR MATHOLE:
Yes, sir.
My own involvement in the union?
COURT: Yes. Are you an
official of the union, are you a member of the union? In what
capacity are you in the union?
MR MATHOLE: No, normally we
are working with the union. When I joined them, because I was
unemployed I was working with
the union …[intervenes]
COURT: In what capacity?
MR MATHOLE: As an official.
COURT: As an official of the
union?
MR MATHOLE: Yes.
COURT: So therefore you are
an employee of the union?
MR MATHOLE: Yes, then I
…[intervenes]
COURT: From when?
MR MATHOLE: Since some
previous years, M'Lord.
COURT: Sorry?
MR MATHOLE: Since some
previous years.
COURT: Until when, even
up to now?
MR MATHOLE: Even up to now I
represented the union, I am instructed by Matemane to represent the
union at the CCMA.
COURT: No, no, let me
understand this. If you are acting on behalf of the employees,
who are not the union members,
you are acting in your capacity as a
union official, so you can only be instructed by the union to act on
behalf of those people
that you took money from, not you personally
but Matemane. Is that the way I understand it?
MR MATHOLE: That is correct.
COURT: So now you affirm that
you are a union official?
MR MATHOLE
:
I am a union official but I have to put it clear to you, M'Lord, that
I am a union official. The union is so very
small, it does not
have a payslip, it does not have a contract of employment. I
asked the union concerning some of those
documentation, the payslip.
They said it is a small union and they also told me that the union is
having some logistical
problems because the general secretary is
dead. That is what I asked them, because …[intervenes]
COURT
:
So since you joined the union you have never been paid through a
payslip or anything?
MR MATHOLE
:
No, we never, we do not …[intervenes]
COURT
:
How do you get paid?
MR MATHOLE
:
Normally they get paid by representing …[intervenes]
COURT
:
No, no, I am talking about you.
MR MATHOLE
:
Even myself, we get paid by representing people in the CCMA.
COURT
:
So let me understand this then, you find people to represent either
in this court or at the CCMA …[intervenes]
MR MATHOLE
:
Normally we…
COURT
:
No, no, hold on, I am just trying to, so that we are on the same
page.
MR MATHOLE
:
Okay.
COURT
:
The way you operate is this, you find people who are employees who
are dismissed, you undertake to represent them to assist
them with
their cases as long as they pay you?
MR MATHOLE
:
That is correct, M'Lord. We also advertise in the
CCMA, we assist
people who do not have a representative, they pay it and that is how
we survive, M'Lord.
COURT
:
So now does it mean that every time you get 10 people that you can
represent, they pay you or they pay the union, I need
to clarify
that?
MR MATHOLE
:
No, they pay the union, but that is where the union, Mr Matemane,
once we, I said I go to him, I say we have got this
group of
employees, and he says they must pay so much, and when they paid I
took the money to him and that is where we get a share
from that
money, M'Lord.
COURT
:
So you share the proceeds from the employees?
MR MATHOLE
:
That is correct.
COURT
:
And how long has this been going on?
MR MATHOLE
:
I think, M'Lord, it is a lot, so many years, I think I have so many
cases in Rustenburg …[intervenes]
COURT
:
And this is how you have been operating?
MR MATHOLE
:
That is who it has been happening.
COURT
:
And the union is registered?
MR MATHOLE
:
The union is registered, it is a registered union, M'Lord.
COURT
:
So as things stand, you do not have any documents to prove that you
are a union official, either by payslips or anything
that indicates
that you are a union official?
……
..
……
..
COURT
:
Okay, alright, as things stand then, the way you operate, let me
summarise it for you, you find people that you can assist,
they pay
you money and then you take up their cases, either in this court or
at the CCMA or Bargaining Council?
MR MATHOLE
:
Normally we do it at the CCMA, we never …[intervenes]
COURT
:
At the CCMA.
MR MATHOLE
:
We never have a matter in this court. When a matter goes to
court we normally advise them to find an attorney because
the issues
…[intervenes]
COURT
:
Alright, now for the purpose of this application here, to the extent
that you are the applicant, also with the others, who
is funding this
application?
MR MATHOLE
:
This one is funded by me, by myself.
COURT
:
By you?
MR MATHOLE
:
Yes.
COURT
:
From your personal pocket?
MR MATHOLE
:
That is correct.
[42]
The
above exchanges clearly put an end to any need for this court to
indulge Mathole and his contrived application ostensibly brought
on
behalf of vulnerable ex-employees. He therefore has no reason to be
in this court either in his name or the name of others as
he does not
satisfy the requirements set out in section 161 of the LRA. It would
therefore not be necessary to consider the merits
of his case when he
has not surpassed the first hurdle of proving that he is a
bona
fide
union official. It is in the light of the failure to surmount this
first hurdle that his application to postpone as made from the
bar
was dismissed, and it followed that this application ought also to be
dismissed.
[43]
It
is further evident from the exchanges with him that Mathole and his
colleague, Matamane masquerading as a Branch Secretary are
smooth
operators who not only advertise their services right inside the
CCMA, but also use the CCMA’s premises to solicit
business from
vulnerable employees. There is fundamentally everything wrong and
twisted in all of this. Whether Mathole’s
claims are true or
not is something the CCMA must look at, as it cannot do its
reputation any good as a statutory body, if it is
established that
its premises are utilised by fraudsters to the detriment of the very
same vulnerable members of the public it
is duty bound to serve and
protect.
[44]
The
above factors call upon the CCMA, and all other statutory labour
dispute resolution bodies, to be vigilant and be on the lookout
for
predators like Mathole and his ilk, when processing or adjudicating
labour dispute referrals on behalf of vulnerable ex-employees.
That
obligation is not only legal, it is a moral one. In instances where
ex-employees such as in this case are left in the lurch
as a
consequence of trusting people such as Mathole, and find themselves
without representation, there is nothing that prevents
the CCMA from
invoking the provisions of section 149 of the LRA
[11]
to assist them.
The order:
[45]
After
the matter was heard on 15 November 2017, I had issued an
order without reasons. The ink had hardly dried on that
order when
Mathole approached my Secretary, Mr Ndabukelweyo, and informed him
that he wanted reasons for the order for the purposes
of launching an
application for leave to appeal. That was also followed by a formal
application on the same date and an e-maiI
which I had received via
the office of the Judge President of this Court. In his e-mail, which
was also sent to countless other
people, Mathole states that he wants
‘
full
written reasons of the order granted on the 15-November-2017 as a
matter of urgent failing I will legal steps without further
notice
”
(Sic).
[46]
This
Court implores Mathole to thread very carefully in the manner he
conducts himself in his dealings with it and its officers.
Inasmuch
as he has every right to the full reasons for an order given in
court, it is not only inappropriate for him to make such
demands
accompanied by threats, but it also borders on contempt. This Court,
especially the urgent court, is under strain, and
can do without the
extra burden of having to indulge and entertain narcissist
individuals, who abuse its processes, refuse to comply
with its
orders, and who on their own version, are fraudsters living off the
plight of vulnerable members of our society.
[47]
This
Court and its officers, as much as it is meant to serve members of
the public without fear or favour, is not there to serve
individuals
at their pleasure and pander to their every whim. It will thus
not acquiesce to its abuse or to that of its officers
by individuals
with a delusional sense of entitlement or importance, and will do
everything within its powers to preserve its dignity
and integrity.
[48]
The
order granted on 15 November 2017 was based on the draft order
submitted on behalf of the respondents. In the light of what
had
transpired in court, I had added to that order to call upon the
Registrar of Labour Relations to take certain steps, specifically
in
the light of
inter
alia
,
what appears to be a
prima
facie
case of criminal conduct on the part of Mathole and his associate,
Matamane, who also appears to be associated with HOCAFAWU. To
this
end, the complete order is reiterated as below;
Order:
1.
The
application from the bar to postpone the proceedings is refused;
2.
The
applicant’s urgent application is dismissed, specifically on
the grounds that Mr Ephraim Mathole lacks the requisite
locus
standi
to bring the application either in his name or in the name of other
individuals, he purports to represent;
3.
The
applicant, Mathole, is prohibited from enrolling any dispute in the
Labour Court against PEN, 129 Vermeuelen Straat Eiendoms
Belegging
(Pty) Limited and CBD Residency, in the name of any individual or
otherwise, without providing proof to the Registrar
or
the Acting Registrar in Registrar’s absence, that the complete
application, including all annexures purported to be attached
thereto, have been duly served on the relevant respondents and that
the said respondents are afforded a reasonable time period
within
which to oppose the application.
4.
The
applicant, Mathole is prohibited from instituting fresh proceedings
in this Court or the Commission for Conciliation Mediation
and
Arbitration (CCMA) against PEN, 129 Vermeulen Straat Eiendoms
Belegging (Pty) Limited and CBD Residency whether in his own
name, in
the name of HOCAFAWU, or in the names of any individuals or otherwise
until the costs of this application as ordered in
paragraph 6 below
have been paid.
5.
The
Registrar of this Court is directed to furnish a copy of this Order
together with a copy of the transcribed record of these
proceedings
to the Office of the Registrar of Labour Relations for a
determination of:
5.1
Whether
HOCAFAWU as a registered union conducts its affairs as a proper and
bona
fide
union, and complies with the provisions of
section 98
,
99
and
100
of
the
Labour Relations Act 66 of 1995
;
5.2
Whether
HOCAFAWU, its Branch Secretary in the Tshwane Central District and
surrounding areas, Mr Matemane, together with the applicant
Mathole,
are not soliciting money or a fee from non-members and members of the
public with a promise of taking up their labour
disputes either in
this Court, the CCMA or any other statutory labour dispute resolution
body.
6.
The
applicant, Ephraim Mathole, is to personally pay the legal costs
incurred by PEN, 129 Vermeuelen Straat Eiendoms Belegging (Pty)
Limited and CBD Residency, on the scale as between attorney and
client, including the costs consequent upon the employment of each
counsel.
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants:
Mr. E Mathole (Lacking
Locus Standi
)
For
the Respondents:
(a)
Foundation/PEN/Eiendom
Belegging Adv. C de Witt
Instructed
by:
Johannette Rheeder Inc
(b)
For
CBD Residency:
P Kirstein SC
Instructed
by:
Adams & Adams
[1]
Act 66 of 1995, as amended
[2]
Act 108 of 1996 (The Constitution of
the Republic of South Africa)
[3]
Black’s Law
Dictionary (7th edition) 1999
[4]
‘
Access to
courts
34.
Anyone 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’
[5]
1972 (4) SA 409
(C) at 415A
[6]
Section 161:
Representation
before Labour Court;
(1)
In any proceedings before the Labour Court, a party to the
proceedings may appear
in person or be represented only by –
(a)
a legal practitioner;
(b)
a director or employee of the party;
(c)
any office-bearer or official of that party‘s registered trade
union or registered
employers’ organisation;
(d)
a designated agent or official of a
council; or
(e)
an official of the Department
of Labour.
(2)
No person representing a party in proceedings before the Labour
Court in a capacity contemplated
in paragraphs (b) to (e) of
subsection (1) may charge a fee or receive a financial benefit in
consideration for agreeing to represent
that party unless permitted
to do so by order of the Labour Court.
[7]
Rule 25:
Representation
before the Commission
(1)
(a) In conciliation proceedings a party to the dispute may appear in
person or be
represented only by -
i)
if the party is an employer, a director or employee of that party
and, in
addition, if it is a close corporation, a member of that
close corporation;
ii)
any office bearer, official or member of that party's registered
trade union
or registered employers' organization;
iii)
if the party is a registered trade union, any office bearer,
official or member
of that trade union authorized to represent that
party; or
iv)
if the party is a registered employers' organization, any office
bearer or official
of that party or a director or employee of an
employer that is a member of that employers' organization authorized
to represent
that parry.
(b)
Subject to paragraph (c), in any arbitration proceedings a party to
the dispute may appear
in person or be represented only by -
i)
a legal practitioner; or
ii)
an individual entitled to represent the party at conciliation
proceedings
in terms of sub-rule (1)(a).
(c)
If the dispute being arbitrated is about the fairness of a dismissal
and a party has
alleged that the reason for the dismissal relates to
the employee's conduct or capacity, a party is not entitled to be
represented
by a legal practitioner in the proceedings unless -
i) the commissioner and all the other
parties consent;
ii)the commissioner concludes that it
is unreasonable to expect a party to deal with the dispute without
legal representation,
after considering -
a)
the nature of the questions of law raised by the dispute ;
b)
the complexity of the dispute;
c)
the public interest; and
d)
the comparative ability of the opposing parties or their
representatives to
deal with the dispute.
(d)
No person representing a party in proceedings before the Commission
in a capacity contemplated
in paragraph (a) or (b), other than a
legal practitioner contemplated in paragraph (b)(i), may charge a
fee or receive a financial
benefit in consideration for agreeing to
represent that party unless permitted to do so by the Commission.
(2)
If the party to the dispute objects to the representation of another
party to the dispute
or the commissioner suspects that the
representative of a party does not qualify in terms of this Rule,
the commissioner must
determine the issue.
(3)
The commissioner may call upon the representative to establish why
the representative
should be permitted to appear in terms of this
Rule.
(4)
A representative must tender any documents requested by the
commissioner for the purposes
of sub-rule (2), including
constitutions, payslips, contracts of employment, documents and
forms, recognition agreements and
proof of membership of a trade
union or employers' organization.
5)
Despite the provisions of sub-rule (1), a commissioner may exclude
any person who
is representing a party in any proceedings on the
basis that they are a member of the same employers' organization as
an employer
party, or a member of an employers' organization that is
a party to proceedings, if the
commissioner, after enquiring into
the matter and considering relevant representations, believes that-
(a)
the
representative joined the employer's organization for the purpose of
representing parties in the Commission; or
(b)
the
representative's participation in the dispute resolution process -
(i) would be contrary to the
purpose of the rule which is to promote inexpensive and
expeditious dispute resolution
in a manner that is equitable to all
parties;
(ii) is not in keeping with the
objectives of the
Labour Relations Act 66 of 1995
; or
(iii) may have the consequence of
unfairly disadvantaging another party to the dispute.
[8]
[2013] 11 BLLR
1057 (SCA)
[9]
Section 189
:
Dismissals based on operational requirements
(1)
When
an employer contemplates dismissing one or more
employees
for reasons based on the employer‘s
operational
requirements
,
the employer must consult -
(a)
any
person whom the employer is required to consult in terms of a
collective
agreement
;
(b)
if
there is not
collective
agreement
that requires consultation –
(i)
a
workplace
forum,
if the
employees
likely to be affected by the proposed
dismissals
are employed in a
workplace
in respect of which there is a
workplace
forum
;
and
(ii)
any
registered
trade
union
whose members are likely to be affected by the proposed
dismissals
;
(c)
if
there is no
workplace
forum
in the
workplace
in which the
employees
likely to be affected by the proposed
dismissals
are employed, any registered
trade
union
whose members are likely to be affected by the proposed
dismissals
;
or
(d)
if
there is no such
trade
union
,
the
employees
likely to be affected by the proposed
dismissals
or their representatives nominated for that purpose.
[10]
Page 99 of the
Indexed Bundle
[11]
Section 149
:
Commission may provide assistance
(1)
If
asked, the Commission may assist an
employee
or employer who is a party to a
dispute
-
(a)
together
with the Legal Aid South Africa
[11]
,
to arrange for advice or assistance by a
legal
practitioner
.
(b)
together
with the Legal Aid South Africa, to arrange for a
legal
practitioner
-
i.
to
attempt to avoid or settle any proceedings being instituted against
an
employee
or employer in terms of
this
Act
.
ii.
to
attempt to settle any proceedings instituted against an
employee
or employer in terms of
this
Act
.
iii.
institute
on behalf of the
employee
or employer any proceedings in terms of
this
Act
.
iv.
to
defend or oppose on behalf of the
employee
or employer any proceedings instituted against the
employee
or employer in terms of
this
Act
;
or
(c
) by providing any other form of assistance that the Commission
considers appropriate
(2)
The
Commission may provide the assistance referred to in subsection (1)
after having considered-
(a)
the nature of the questions of law raised by the
dispute
;
(b)
he complexity of the
dispute
;
(c
) whether there are conflicting
arbitration awards that are relevant to the
dispute
; and
(d) the public interest.
(3)
As
soon as practicable after having received a request in terms of
subsection (1), but not later than 30 days of the date the
Commission received the request, the Commission must advise the
applicant in writing whether or not it will assist the applicant
and, if so, the form that the assistance will take.