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[2018] ZALCJHB 267
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Nkabinde and Others v Mhlongo and Others (J1932/17) [2018] ZALCJHB 267 (13 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1932/17
In
the matter between:
MANDLA
NKABINDE
First Applicant
VUSI
NKOSI
Second Applicant
CHRIS
MOROPA
Third Applicant
FRANK
MAKAMOLE
Fourth Applicant
GLORIA
MAHLANGU
Fifth
Applicant
JOSEPH
MARAPE
Sixth Applicant
WAYNE
TSHABALALA
Seventh Applicant
SELLO
PEEGE
Eight Applicant
SASA
MKHUMA
EDUCATED
NKOSI & 14 OTHERS
Ninth
Applicant
Intervening
Parties
and
THAMSANQA
MHLONGO
First Respondent
LUCAS
MASHEGO
Second Respondent
SAMUEL
SEATHLOLO
Third Respondent
CHEMICAL
ENERGY PAPER PRINTING
WOOD
AND ALLIED WORKERS UNION
Fourth Respondent
Heard:
18 August 2017 & 22 September 2017
Delivered:
13 February 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The applicants initially approached the Court on 16 August 2017 on an
urgent basis to seek an order in the following terms:
“…
2.
The national office
Bearers’ committee (“the NOBC”) of the fourth
respondent is not currently composed in accordance
with the fourth
respondent’s constitution and is currently inquorate;
3.
The first, second and
third respondents are interdicted from taking any action which
purport to be action of the NOBC until and
unless the NOBC is
properly constituted and quorate in accordance with the fourth
respondent’s constitution;
4.
The notices of intention
to suspend issued to the applicants on or about 11 August 2017
and 14 August 2017 be
declared null and void;
5.
The first, second and
third respondents are 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;
6.
The respondents are
interdicted from preventing the applicants from executing their
duties as office bearers and employees of the
respondent;
7.
…”
[2]
The application was opposed by the respondents. At the conclusion of
the proceedings, judgment was reserved, and a directive
was issued to
the effect that the first to fourth respondents were barred from
acting upon the notices of intention to suspend
the applicants issued
on 11 August 2017 and 14 August 2017, or to take
any action against the applicants, pursuant
to the resolution taken
by the National Office Bearers’ Committee on 14 July 2014,
pending the delivery of judgment
in this matter.
[3]
The urgency of the application nonetheless evaporated after the
hearing on 18 August 2017 due to a variety of factors.
Chief amongst these was an application to intervene brought by the
Intervening Parties on 28 August 2017. Following the
filing
of an opposition to the application to intervene and further
directives from the Court to the parties to file heads of argument,
the application to intervene was heard on 22 September 2017.
Judgment was delivered in respect of that application on
10 October 2017. The following order was issued;
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 14 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 ten (10) 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.
Background:
[4]
The applicants, apart from the fifth and eighth applicants are the
office bearers and employees of the Union based in Mpumalanga
Province. The first applicant, Mr Mandla Nkabinde, is the chairperson
of Regional Executive Committee (REC). The second applicant,
Mr Vusi
Nkosi (Nkosi) is the Deputy Chairperson. The third applicant, Mr
Chris Moropa is Secunda Local Chairperson of the Union.
The fourth
applicant, Mr Frans Makamole is a Shop Steward in Sasol Mining. The
fifth applicant, Ms Gloria Mahlangu is the Union’s
Regional
Administrator in Mpumalanga. The sixth applicant, Mr Joseph Marape,
is the Regional Secretary. The seventh applicant,
Mr Wayne Tshabalala
is a Shop Steward. The eight applicant Mr Sello Peege, is employed as
a Union Official. The ninth applicant,
Sasa Mkhuma, is a Shop
Steward.
[5]
The Intervening Parties are members of CEPPWAWU in different
capacities ranging from Chairpersons of Provincial and/ or Regions
and by virtue of their positions, also National Executive Committee
members of the Union. Others amongst the Intervening Parties
include
local organisers; a head office National Coordinator, shop stewards
and ordinary Union officials.
[6]
The first respondent, Mr
Thamsanqa Mhlongo is the Union’s president. The second
respondent, Mr Lucas Mashego is the First
Deputy President. The third
respondent, Mr Samuel Seathlolo is Deputy General Secretary. They
form the National Office Bearers
Committee of the fourth respondent,
CEPPWAWU, a trade union registered in terms of the relevant
provisions of the Labour Relations
Act (LRA).
[1]
[7]
The Union has a history of internal strife and disputes which I do
not deem necessary to elaborate on except to highlight the
following
significant events;
a)
Flowing from the National Congress held in September 2008,
the
Union had elected its National Office Bearers in terms of its
constitution. Its then General Secretary, Mr. Mofokeng is accused
of
a variety of misconduct pertaining to the running of the affairs of
the Union. The allegations included financial mismanagement
and
fraud, which conduct had placed the registration of the Union in
jeopardy.
b)
Mofokeng is further accused of perpetrating a purge against
some of
his co-office bearers, including having purportedly dismissed the
Deputy General Secretary, the National Treasurer, and
a host of other
employees and Union members.
c)
Those allegedly purged by Mofokeng obtained a court order in
the High
Court on 15 April 2016. The effect of that order was that
Mofokeng and the Union were interdicted from convening
an NEC pending
inter alia
, the outcome of an application to set aside what
were deemed to be fraudulent resolutions taken by the office bearers.
That order
as at the hearing of this application stood, and thus, the
Union has not held an NEC meeting since January 2016.
d)
The Deputy General Secretary, Seatlholo was subsequently reinstated
as Deputy General Secretary in terms of a resolution taken by the
National Office Bearers Committee (NOBC) in May 2017. Seatlholo,
The Union’s President and Vice President thereafter as members
of the NOBC took a decision to suspend Mofokeng and instituted
disciplinary proceedings against him. A series of litigation followed
between Mofokeng, the Union and its other office bearers
in the High
Courts and this Court. Ultimately, and after more litigation,
Mofokeng appeared before a disciplinary enquiry on 7 August 2017.
He was subsequently dismissed.
e)
As at the hearing of this application, the NOBC structure of
the
Union consisted of only three officials,
viz
, the President,
the Vice President and the Deputy General Secretary. This was because
of the dismissal of Mofokeng and the subsequent
retirement of the
Union’s National Treasurer.
[8]
What triggered the urgent application before this court was a notice
of intention to suspend the applicants dated 11 August 2017.
The notice was issued by first to third respondent acting under the
auspices of the Union and/ or the NOBC. The notice reads as
follows:
“
NOTICE
OF INTENTION TO SUSPEND
1.
It has come to the
attention of the National Officer Bearers Committee (“NOBC”)
that you have been misconducted yourself
in relation to your duties.
(Sic)
2.
The NOBC has resolved to
offer you an opportunity to make representations as to why you should
not be suspended pending an investigation
into the allegations of
misconduct made against you.
3.
The aforesaid resolution,
annexed hereto marked “A” details the allegations of
misconduct made against you and several
other Union employees and
members.
4.
Please have careful
regard to the resolution and provide the Union’s Deputy General
Secretary, Comrade Chief Seatlholo, with
written representation as to
why you should not be placed on precautionary suspension.
5.
You are required to email
your representations to […] by no later than Monday,
14 August 2017 at 12h00. Should
you fail to furnish the
representations as requested, the Union will proceed to make a
decision on your suspension without your
input”.
[9]
The detailed allegations levelled against the applicants are
contained in a Resolution taken by the remaining NOBC members as
attached in the letter of intention to suspend. The crux of which are
as follows:
“…
6.1
It is alleged that
Nkabinde, Tshabalala, Moropa, Makamole and Mkhuma intentionally
defied an instruction by Mashego to vacate CEPPWAWU’s
head
offices on 8 June 2017, resulting in Mashego having to
procure the services of a locksmith in order to gain access
to the
building.
6.2
Marape, Peege and
Mahlangu failed to adhere to an instruction from the NOBC to report
to the head offices on 5 July 2017.
6.3
At a meeting on
5 July 2017, at a Sasol Shop steward Council in Secunda,
Nkabinde, Moropa and Makamole made spurious and
disrespectful
allegations against the NOBC, Mhlongo and Mashego. Further, in the
same meeting Moropa demonstrated an insubordinate
behaviour towards
Mashego and together with Makamole and Mkhuma staged a walk out.
6.4
At meetings held on 16
and 17 June 2017, Nkabinde and Marape attended meetings
with the suspended General Secretary, with
the intention of removing
the NOBC unconstitutionally and unlawfully from office…”
[7]
In an undated response by Marape on behalf of all the applicants,
stated the following:
“
..
It
should be recorded that it is unreasonable to expect them to
respondent by 12h00, given the short time to consider and respond.
Whilst the comrades referred herein
requires time to apply their mind and fully reflect on the contents
of the letters of the notice
of intention to suspend, request is
hereby made, without prejudice, for an extension of five (5) days to
respond appropriately.
Notwithstanding
the above, herewith find for the record:
The
“NOBC” that is alleged to have taken the resolution is no
longer constitutionally quorate.
1.
There has been no
consultation with the regional leadership on the envisaged
“disciplinary action, which is contrary to the
Union
constitution and the disciplinary code.
2.
The majority of comrades
referred herein are NEC members and only the NEC have the requisite
authority to institute any disciplinary
action against them.
3.
The said “NOBC”
lacks powers and authority to institute disciplinary actions against
elected members / office bearers.
…”
[8]
The applicants essentially dispute the authority of the current NOBC
to either take resolutions or to issue suspension notices.
Their main
contentions are:
8.1
The notices of intention to suspend were issued on behalf of
the NOBC
pursuant to a purported resolution of the NOBC dated 14 July 2017.
The resolution of the NOBC is accordingly
null and void as it was
passed were an insufficient number of the members of the NOBC were
present to constitute a quorum in terms
of the Constitution.
8.2
The NOBC lacks the authority under the guise of disciplinary
body to
take control over a particular region. Therefore, even if the NOBC
were quorate, the resolution mandating the issuing of
the notices of
intention to suspend was
ultra vires
. In the result, this
Court ought to declare the notices of intention to suspend null and
void.
8.3
The requirement as contained in clause 41(3) of the Union’s
constitution provides that at least two thirds of the members ought
to be present in order to constitute a quorum. It is contended
in the
meeting of 14 July 2017, which took the resolution to
suspend the applicant, there were at best only three (3)
members
present. At worst there were only two (2) members present, taking
into account that Seathlolo had been dismissed for misconduct.
[9]
The applicants’ contentions are grounded in the provisions of
the Union’s Constitution in terms of which it was
submitted, it
functioned on four levels, being plant, branch, regional and
national. According to the applicants, the regional
congress is the
supreme decision-making body of the Union at regional level, with the
REC being responsible for managing the affairs
of the Union at
regional level between meetings of the regional committee.
The
relevant provisions of constitution relied upon:
[10]
The constitution provides for the establishment of different
leadership spheres within the union. Chapter two (2) of the
constitution
outlines the terms of operation of each sphere of
leadership. In terms of the provisions of section 6, the following
leadership
spheres are contemplated:
“
6.
Structures
within the union
The union is organised into the
following structures and general spheres of authority:
(a)
Members, who collectively
are the foundation of democratic organisation in the workplace and in
the union.
(b)
Shop stewards and shop
steward committees, which operate within the different business
enterprises in which members work.
(c)
Local shop steward
councils (referred to as “LSSC”), which operate in groups
of business enterprises within a local
area.
(d)
Regional executive
committee (referred to as “REC”) a regional office
bearers committee (referred to as the “ROBC”)
and the
regional congress (referred to as “RC”) which operate
within each region.
(e)
A national executive
committee (referred to as “NEC”), a national
office-bearers committee (referred to as “NOBC”)
and a
national congress (referred to as “NC”) which operate
nationally.
7.
Spheres of
authority within the union
(1)
Within the union,
authority is allocated as follows:
(a)
…
(b)
…
(c)
Within the regional
sphere of operation-
(i)
The management of the
affairs of the union between meetings of the RC, is exercised by the
REC and ROBC subject to the decisions
of the RC, NOBC, and the
policies of the NEC and NC; and
(d)
Within the national
sphere of operation:
(i)
The policy making
authority of the union is exercised by the NC and NEC.
(ii)
The management of the
affairs of the union between meetings of the NC is exercised by the
NEC and the NOBC, subject to the decisions
and policies of the NC;
(iii)
The executive authority
of the union is exercised by the NOBC, subject to the decisions of
the NEC and policies of the NC”
[11]
The establishment of the NOBC and its powers are contained in chapter
12 of the constitution. The relevant provisions are as
follows:
39.
Establishment and powers
The NOBC exercises the day to day
administrative functions of the union between NEC and meetings and
must carry out the functions
and duties assigned to it by the NEC. In
addition, the NOBC may-
(a)
Take decisions on
administrative and organisational matters of the union;
(b)
Set dates for and convene
national meetings; and
(c)
Recruit staff to assist
in the administration of the union after consultation with the
relevant structures;
(d)
NOB’s and ROB’s
will jointly shortlist; interview and recommend staff employment to
the NEC.
(e)
NOBC must be required to
submit copies of their deliberations to the NEC and consistency is
needed,
40.
Composition
The NOBC is composed of national
office-bearers.
41.
Meetings
(1)
The NOBC will meet at
least once a month and must determine its rules of procedure.
(2)
The General Secretary or
Deputy General Secretary in consultation with the President must
convene NOBC meetings. These meetings
must be presided on by the
President or in his absence by one of his Vice-Presidents.
(3)
The quorum to commence
meetings is two thirds of the members present.
[12]
To the extent that it may be necessary to deal in earnest with the
merits of this application, a few observations need to be
made which
according to the respondents and the Intervening parties, may render
the application before the Court academic.
Mootness:
[13]
The principles applicable to
whether a matter is moot are trite. In
Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
[2]
‘
A
case is moot and therefore not justiciable, if it no longer presents
an existing or live controversy which should exist if the
court is to
avoid giving advisory opinions on abstract propositions of law’
[14]
Further principles developed over time are that;
a)
Save in exceptional
circumstances, a court will only entertain a dispute as long as such
dispute remains live between the parties.
It is so because a court
does not need to make an order that will be incapable of execution by
virtue of the matter having become
academic
[3]
.
b)
Exceptional circumstances
should be present for a judgment to be given on the merits of a
matter when such a matter is patently
moot. It is the exercise of a
discretion in the service of the interests of justice whether to give
a judgment. Thus, the court
even in such circumstances may determine
the merits if it would be in the interests of justice to do so, and
if any order which
[it] may make will have some practical effect
either on the parties or on others
[4]
.
c)
The test to decide whether to
give a judgment is whether there is a discrete legal issue of public
importance arising, that would
affect matters in the future, and on
which the adjudication of the court was required. Thus, the question
to be posed is whether
it is necessary and prudent to give judgment
in order to address the risk of the point in dispute being the bone
of litigation
in future because the policy motivation to do so is to
avoid future litigation over the legal point
[5]
.
d)
Even if there may still be
existing disputes in the future, the matter may be moot if future
cases would present different factual
matrixes in the determination
of such disputes and thus no purpose would be served in resolving any
existing disputes
[6]
.
[15]
Subsequent to the judgment in the application to intervene, and
despite the specific orders in respect of the filing of further
submissions as directed by the court, the applicants nonetheless
failed to file any further submissions. On the further submissions
made by the Intervening Parties and the respondents, the following
important undisputed developments have since taken place;
a)
As already indicated, an interdict was obtained in the High
Court by
some of the applicants on 15 April 2016. Amongst the implications of
that interdictory order was that the Union could
not hold NEC
meetings. The matters under case numbers 06046/16 and 26960/16 which
came before Modiba J in the High Court (Gauteng
South) were settled
by the parties on 21 September 2017. The nub of the settlement
agreement was that;
·
The interim interdict granted on 16
April 2016 (in terms of which the
Union was interdicted from holding meetings) was discharged;
·
The dismissal of Seatlholo was set aside
·
The suspension of the sixth, seventh
and tenth respondents
(intervening parties) and their dismissal from the NEC was set aside
b)
On 21 September 2017, and after the interdict was discharged,
the NEC
held its meeting and took certain resolutions including;
·
Ratifying previous resolutions taken
by the NOBC over the period
23 May to 21 September 2017;
·
Resolving that the NOBC as currently
constituted was empowered to act
and to take decisions of the NOBC on behalf of the Union;
·
Resolving that the interpretation of
section 41 (3) of the
Constitution, which relates to the quorum of the NOBC should be read
and interpreted to mean;
“
The
quorum to commence a meeting is two thirds of the NOBs presently in
office
”
·
The NEC to intervene and take over the
full operation of the
Mpumalanga Region in accordance with the provisions of Section 42 (2)
of the Constitution
·
That the applicants (in this case) are
suspended
·
The Union’s Deputy General Secretary
is authorized and mandated
to effect the suspension of the applicants, and to prosecute the
disciplinary proceedings contemplated
in the suspension letters
[16]
The intervening applicants contended that the effect of ratifying
previous resolutions including the impugned resolution, and
the
setting aside of its decision to suspend the applicants effectively
rendered this application moot and ought therefore not
be granted.
The respondents in the main also agreed with the intervening
applicants that the resolutions of the NEC had rendered
the
application academic.
[17]
Whether the application is moot must be considered within the context
of the relief sought by the applicants. To recap, the
first prayer
sought was in a sense, to declare that the NOBC as it was prior to
21 September 2017, as being inquorate
in accordance with
the constitution of the Union. The second was that the remaining
members of the NOBC were to be interdicted
from taking any decisions
unless the NOBC was properly reconstituted and quorate. The third was
for the notices of intention to
suspend as issued in accordance with
a resolution taken by the NOBC to be declared null and void, and
fourth, for the members of
the NOBC to be interdicted from taking any
action purporting to suspend the applicants’ membership from
the Union from their
elected positions
[18]
The interdict obtained in the High Court having been discharged, and
the NEC consequently being able to convene meetings, it
had done so
for the purposes of the resolutions taken after 21 September 2017,
in accordance with the provisions of section
59 (4) of the Union’s
constitution.
[19]
Thus, once the NEC was able to convene meetings and had subsequently
taken resolutions insofar as they pertained to the functioning
of the
NOBC, more specifically in regard to what constituted a quorate NOBC,
the issue surrounding whether it was in fact quorate,
as at the time
that the resolution in terms of which the applicants were suspended,
becomes moot.
[20]
The above conclusion as correctly pointed out in the submissions made
on behalf of the respondents and the Intervening Parties
puts an end
to the issue of the status of the NOBC. Thus, once the NEC had
resolved to impute an interpretation of the quorum provisions
of the
Union’s constitution as meaning that all that was required was
for the NOBC to be quorate was the presence of two
thirds of the
members of the NOBC, the implications thereof were that the remaining
three members of the NOBC (taking into account
that Seatlholo’s
dismissal was set aside) were deemed to be quorate for the purposes
of taking authorised decisions on behalf
of the NEC and the Union.
[21]
Further implications of the resolutions taken on 21 September 2017
were that since all the resolutions taken by the
NOBC between
23 May 2017 and 21 September 2017 were ratified,
in accordance with the resolution taken on 14 July 2017,
the applicants’ suspension remained in effect. Furthermore, the
Deputy General Secretary was authorised and mandated to put
into
effect the applicants’ suspensions, and to also prosecute the
disciplinary proceedings in accordance with the now validated
letters
of suspension.
[22]
The net effect of the resolutions taken on 21 September 2017
is that the NOBC in its current form is recognised as
being in
compliant with the provisions of the section 41 (3) of the Union’s
constitution, and thus authorised to take any
action or decisions on
behalf of the NEC and the Union. There is therefore no basis from the
papers as they are currently before
the court, for the applicants to
challenge the NEC’s or NOBS’ authority to either take any
resolutions, suspend or
subject them to a disciplinary process.
[23]
The mootness of this application becomes plain in the light of the
events of 21 September 2017. All forms of relief
sought by
the applicants in their Notice of Motion have been overtaken by
events. The NOBC in its current form has been legitimised
and the
impugned resolution on the basis of which the applicants had
approached the Court has since been validated by its retrospective
ratification.
There is no longer any basis for
a dispute or
lis
between
the parties
, and the relief which the applicants sought is now
incapable of execution by virtue of the matter having become
academic.
[24]
What remains to be determined is whether there are exceptional
circumstances in this case requiring a judgment despite the
matter
being moot. As previously indicated, the applicants failed to make
any further submissions subsequent to the order in the
application to
intervene, and there is therefore no basis for a conclusion to be
reached that the interests of justice dictate
that a discretion be
accordingly exercised in favour of a judgment. It is not known
what practical effect any judgment would
have on the parties in this
application and the general membership of the Union.
[25]
In regard to whether there is a discrete legal issue of public
importance arising, that would affect matters in the future,
and on
which the adjudication of the court was required, must be determined
on the basis of the issues the Court was required to
determine.
[26]
In my view, even if there is a possibility of the applicants
approaching the court in future in respect of the same or similar
matter, the difficulty they will be faced with is that the factual
matrixes have changed after 21 September 2017. Any
further
disputes turning on the authority of the NOBC to take any
disciplinary measures against them or removing them from their
Union
positions clearly presents a different factual matrix which, in
itself is bound to give rise to a different set of arguments.
[27]
Thus, no purpose would be
served in resolving this dispute, as any attempt do so would merely
pronounce upon abstract questions,
or needlessly advise upon
differing contentions, which is not the function of this court
[7]
.
Costs:
[28]
In making an award of costs, the court is to take into account the
requirements of law and fairness. Until 21 September 2017,
the Union was in some form of state of paralysis as a result of the
High Court order issued on 15 April 2016. Irrespective
of
the different views on the motivation for bringing this application,
and in the light of the uncertainties surrounding the status
of the
NOBC, the applicants as
bona fide
members and officials of the
Union were entitled to approach the court to contest the authority of
that structure to take adverse
decisions against them. Given these
and other considerations, it is my view that any cost order in the
circumstances is not warranted.
Order:
[29]
In the premises, the following order is made;
1.
The interim directive issued by this Court on 18 August 2017
is discharged.
2.
The applicants’ application is dismissed.
3.
There is no order as to costs.
_____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
:
For
the Applicants:
Adv. P. Kennedy SC with Adv. H Viljoen
Instructed
by:
Stephen
Hardie Attorneys
For
the Respondents:
Adv. M Antonie SC with Adv. M Chauke
Instructed
by:
Mpoyana Ledwaba Inc. Attorneys
For
the Intervening Parties:
Adv. D Mpofu SC with Adv K Pillay
Instructed
by:
Sefalafala Inc. Attorneys
[1]
Act 66 of 1995
[2]
2000 (2) SA 1
(CC)
at 18, fn18
[3]
Potgietersrus Platinum
Limited (Makgalakwena Section) v Godfrey Ditsela & 2 Others
(case number JA 66/12)
at
para 9
[4]
Qoboshiyane N.O. v Avusa
Publishing Eastern Cape and Others
2013 (3) SA 315
(SCA)
at para 7; MEC for Education, KwaZulu-Natal and Others v Pillay
[2007] ZACC 21
;
(2008 (1) SA 474
(CC) at para 32
[5]
Qoboshiyane
at para 5
[6]
Independent Electoral
Commission v Langeberg Municipality
(2001)
(3) SA 925 (CC)
[7]
See
Geldenhuys
and Neethling v Beuthin
1918
AD 426
at 441