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[2018] ZALCJHB 185
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South African Municipal Workers Union (SAMWU) v Qina and Others (J965/18) [2018] ZALCJHB 185; [2018] 9 BLLR 932 (LC) ; (2018) 39 ILJ 2740 (LC) (25 May 2018)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 965/18
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
(“SAMWU”)
Applicant
and
MXOLISI
QINA

First Respondent
MILTON
MYOLWA

Second Respondent
SIVIWE
MALI

Third Respondent
Heard:
10 May 2018
Delivered:
25 May 2018
JUDGMENT
TLHOTLHALEMAJE, J:
Introduction:
[1]
The applicant (SAMWU), seeks an order on an urgent basis, that the
operation and execution of the principal order of this Court
issued
on 11 April 2018 by Steenkamp J under the present case
number is not suspended pending the final determination
of the
application for leave to appeal and/or any subsequent appeal
proceedings that may follow.
[2]
SAMWU further seeks an order that pending the finalisation of any
such appeals, and or the finalisation of the unfair dismissal
dispute
launched by the second respondent in the Commission for Conciliation
Mediation and Arbitration (CCMA), the second respondent
be
interdicted and restrained from;
a)
Holding himself out as the provincial Secretary of SAMWU, office

bearer or its official;
b)
Dealing, communicating or addressing any members, official or

constitutional structure of SAMWU;
c)
Convening meetings, arranging protests, organising campaigns
and or
arranging gatherings, in the name of SAMWU with members of the
public, municipalities or SAMWU members; and
d)
Utilising SAMWU’s letterhead, logo and trademark for any

purpose whatsoever.
[3]
The application is premised on
the provisions of section 18(1) and (3) of the Superior Courts
Act.
[1]
The first, second and third respondents opposed the application on
various grounds including urgency, and they further contend
that the
Superior Courts Act does not find application in proceedings before
the Labour Court and thus, this Court lacks jurisdiction
to hear this
matter.
Background:
[4]
The applicant, the South
African Municipal Workers’ Union (“SAMWU”) is a
trade union registered in terms of Labour
Relations Act (LRA)
[2]
and it organises employees who are employed directly or indirectly in
municipalities and similar authorities, which may be in the
public or
private sector.
[3]
Its constitutional structures include
inter
alia
, provincial, regional
and local (shop steward) committees/councils.
[5]
The provincial arm(s) of the SAMWU are expected to hold provincial
elective conferences known as the Provincial Congress at
the expiry
of a three-year period after the previous Provincial Congress. The
delegates of the Provincial Congress are
inter alia
mandated
with the election of provincial office bearers, namely, the
Chairperson, Deputy Chairperson, Provincial Secretary and
Deputy
Provincial Secretary and the Treasurer.
[6]
The first respondent, Mr
Mxolisi Qina is the Provincial Chairperson of SAMWU: Eastern Cape.
The second respondent, Mr Milton Myolwa
is the (former)
[4]
Provincial Secretary of SAMWU: Eastern Cape. The Third respondent, Mr
Siviwe Mali is the Provincial Treasurer of SAMWU: Eastern
Cape.
[7]
SAMWU approached this Court for an interdict against the holding of a
Provincial Shop Steward Council. This Court on 23 March 2018,

issued a
rule
nisi
calling upon the respondents to show
cause why a final order should not be granted in the following terms:
“…
In
the event that the Provincial Shop Steward Council has already been
convened as at the time of hearing of this application, a
declaration
order is issued that the Provincial Shop Steward Council (PSSC) for
the Eastern Cape Province is convened contrary
to the provisions of
clause 7.9.3 of SAMWU’s constitution and is unlawful.
…”
[8]
The respondents anticipated the return date and the matter came
before Steenkamp J on 11 April 2018. An
ex tempore
judgment was handed down wherein the rule
nisi
was
confirmed. On or about 23 April 2018, the respondents filed
an application for leave to appeal against the judgment
of Steenkamp
J. On 5 May 2018, SAMWU filed this urgent application which
is opposed by the respondents.
[9]
In support of its application in terms of section 18 of the Superior
Courts Act, SAMWU made the following submissions:
9.1.
In February 2018, the National Executive Committee of SAMWU took

a decision that the trade union shall conduct all its activities
through a national year plan and this included the PSSC and
Provincial
Executive Committee (PEC) meetings.
9.2.
As on 23 March 2018, the Central Executive Committee (CEC)
had not been convened to decide on the dates for the PSSC meetings in
the provincial structures. On 12 March 2018, Qina
in his
capacity as  Provincial Chairperson of SAMWU: Eastern Cape,
published a notice to municipalities within the Eastern
Cape
indicating that the PEC intended to convene its PSSC meeting on
22 March 2018.
9.3.
On 15 March 2018, the General Secretary of SAMWU addressed
a letter to Qina advising him that the contemplated PSSC meeting was
not convened in terms of the constitution of SAMWU, and he
was
requested to withdraw the notice calling for that meeting.
9.4.
On 20 March 2018, it became apparent to SAMWU National
Office
Bearers that the SAMWU: Eastern Cape was proceeding with the
intended PSSC meeting. As a result of that eventuality, the General

Secretary instituted urgent proceedings before this Court to
interdict the holding of the PSSC meeting.
9.5.
The respondents in opposing the interdict contended that the PSSC
meeting
was convened on instruction of the PEC and further that the
PSSC was funded through the provincial fund raising mechanisms. They

further contended that the PSSC was not convened to finalise any
resolutions, but the purpose of the PSSC meeting was to plan for
the
May Day campaigns and activities.
9.6.
SAMWU on the other hand contended that the PSSC meeting in fact made
resolutions that were aimed at extending the constitutionally
mandated term of office of shop stewards. Furthermore, to change the

manner in which monthly membership fees were collected and paid to
the trade union. SAMWU contends that the resolutions sought
to divert
the membership subscriptions to the respondents/provincial structure
in contravention of the South African Local Bargaining
Council: Main
Collective Agreement.
9.7.
SAMWU avers that the impugned PSSC meeting further precipitated in a
resolution, which had the effect of reinstating Myolwa who had been
dismissed by SAMWU on allegations of misconduct on 10 November 2017,

and who had since referred a dispute to the CCMA.
9.8.
The issue that SAMWU takes with the reinstatement of Myolwa was

that the PSSC is a “campaigning” structure, which is not
constitutionally mandated to reinstate any union official.
SAMWU
further contended that the employment relations within the trade
union fell within the domain of the General Secretary. As
a
consequence of his “reinstatement”, Myolwa continued to
hold himself out as a union official and continued to meet
with local
municipal authorities under the banner of SAMWU.
9.9.
On 23 April 2018, SAMWU wrote to Myolwa seeking an
undertaking
from him that he would cease to hold himself as an
authorised representative of SAMWU. In a letter dated 26 April 2018,

Myolwa’s attorneys of record failed to make the undertakings as
requested by SAMWU.
Urgency:
[10]
As mentioned above, the respondents opposed this application on
various grounds amongst others that was that the application
was not
urgent. The respondents contend that the application lacks the
necessary urgency on the following grounds:
10.1.
The National Office Bearers were informed in a letter dated
15 November 2017,
that the Eastern Cape Province would be
withholding monthly membership subscriptions. That decision was taken
in a PEC meeting
held between 24 and 26 October 2018. The
decision was motivated by the PEC’s demand that the National
Office Bearers
must call for and schedule a Special Congress within
three months. The PEC further resolved that it would not be
interacting with
the National Office whether on an organisational
and/or administrative level until such time that, the Special
Congress was convened.
10.2.
The National Office Bearers were further advised in a letter dated
15 November 2018,
that the decision to terminate the
employment relationship between the trade union and Myolwa was
unprocedural and unconstitutional,
and it was noted that the PEC had
rejected the decision by the National Office Bearers to dismiss
Myolwa.
10.3.
The National Office Bearers were aware as of 16 November 2017
that Myolwa was
conducting himself as a Provincial Office Bearer, and
therefore in the circumstances, the urgency claimed was self-created.
[11]
In contending that the application is indeed urgent, SAMWU avers as
follows:
11.1.
The application for leave to appeal was filed on 23 April 2018.
The consultation
between those representing SAMWU and their attorneys
of record took place on 26 April 2018. This application was
eventually
filed on 2 May 2018.
11.2.
In respect of Myolwa, it was contended that he was warned and
requested to make an undertaking
on or before 23 April 2018,
that he would not conduct himself as if he was an official of the
trade union. In his response
on 26 April 2018 through his
attorneys of record, Myolwa had failed to make such an undertaking.
In that regard, SAMWU
contends that this application was filed within
reasonable time.
11.3.
Furthermore, SAMWU contends that the application for leave to appeal
against the
ex tempore
judgment of Steenkamp J has the effect
of suspending the operation of the order thereof. In the result, the
PSSC meeting and the
resolutions thereof would remain binding and
operational pending the leave to appeal and/or appeal proceedings.
SAMWU avers that
it should be borne in mind that one of the
resolutions of the PSSC meeting was the reinstatement of Myolwa, and
if such resolutions
remained not interdicted and restrained, he might
continue to act on behalf of the trade union when in fact he has no
such authority.
[12]
I have difficulty in appreciating the respondents’ contentions
that the matter is not urgent. For the purposes of determining

urgency, what is of importance in this case is to have regard to the
events after the Steenkamp J’s order was issued on
11 April 2018. Until the filing of the respondents’
application for leave to appeal, there is nothing that suggested
that
the respondents would not consider themselves bound by that order. It
therefore implies that the urgency of the matter could
only have
arisen when the application for leave to appeal was launched and not
any period earlier.
[13]
The application for leave to appeal was launched on 23 April 2018,
whilst this urgent application was launched on
2 May 2018
and filed on 5 May 2018, some eight court days later. The
respondents’ reference to matters
that took place prior to the
Steenkamp J’s order is merely an attempt at revisiting issues
that were dealt with leading to
the granting of that order, and are
not relevant for the purposes of determining whether this particular
application is urgent
or not.
[14]
The Deputy General Secretary of SAMWU and deponent to the founding
affidavit has fully explained the steps taken by him upon
becoming
aware of the application for leave to appeal, including that the
application could only be served on the respondents on
2 May 2018
due to public holidays in between the consultations with attorneys of
record and its final drafting. Myolwa
was further granted an
opportunity to give undertakings by 23 April 2018 in
correspondence addressed to him, and he had
only responded on
26 April 2018.
[15]
The application may have been heard some 18 days since the
application for leave to appeal was. However, I am satisfied that

SAMWU acted with the necessary haste upon becoming aware of the
application for leave to appeal and there is therefore no merit
in
the submissions that the urgency in this matter is self-created.
Issue
of jurisdiction:
[16]
The respondents take issue with
the jurisdiction of this Court to grant the relief sought. It was
submitted on their behalf that
section 18 of the Superior Courts
Act
[5]
was not applicable in proceedings before this Court, and that to the
extent that this Court did not have a similar provision, it
therefore
lacked jurisdiction to consider the matter before it.
[17]
The respondents’ contentions that this court lacks jurisdiction
to determine the application before it in terms of the
provisions of
section 18 obviously lacks merit. The starting point is that it is
correct that the Rules of this Court, together
with the provisions of
the LRA are silent in regard to the status of the final orders issued
by the Court in circumstances where
an application for leave to
appeal has been lodged. The provisions of Rule 11(3) and 11(4) of the
Rules of this Court, however
address this conundrum and provide that
the Court may adopt any procedure that it deems appropriate in the
circumstances.
[18]
Flowing from several decisions
in this Court
[6]
,
there can be
no doubt that by virtue of the Labour Court being a Superior Court in
terms of section 151(2) of the LRA, and thus
subject to the Superior
Courts Act, section 18 of that Act finds application in this court.
This is so to the extent that there
is no conflict between the
provisions of that Act and those of the LRA in terms of which this
Court was established, within the
contemplation of section 2(3) of
that Superior Courts Act
[7]
.
[19]
Further to the extent that the LRA or the Rules of
this Court are silent on the status of final orders pending appeal
proceedings,
it cannot be said that there is conflict within the
meaning of section 2(3) of the Superior Courts Act. Furthermore, and
as correctly
pointed out on behalf of SAMWU, this court under the
provisions of section 158(1)(a)(i) and (iii) of the LRA is empowered
to grant
any appropriate relief.
[20]
I
n
line with a further exposition of the provisions of section 18 by Van
Niekerk J in
Fidelity
Security Services (Pty) Ltd v Naidoo and Another,
the
applicant in such instances is required to demonstrate that the facts
and circumstances of the particular application are exceptional
and
warrant a deviation from the normal rule
[8]
.
This required the applicant to show that the facts and circumstances
of its particular case are uncommon, unusual and\or out of
the
ordinary to the extent that a departure from the ordinary rule that
an appeal suspends the operation of the judgment and order
appealed
against should not apply. Furthermore, the applicant is required to
prove on a balance of probabilities that it will suffer
irreparable
harm should the order for leave to execute not be granted pending the
appeal. Finally, the applicant must prove on
a balance of
probabilities that the respondent in the application for leave to
execute will not suffer irreparable harm if leave
to execute is
granted pending appeal
[9]
.
Have
the requirements of the relief sought been met?
[21]
SAMWU contends that it has a
prima facie
right to the relief
sought on the grounds that it had secured an order in its favour,
which declared
inter alia
, that the PSSC was convened by the
respondents unlawfully. It further contended that it needed to
protect the terms of the Court
order until such time that the
application for leave to appeal is finally determined, failing which
the appeal proceedings would
be moot. In this regard, it was further
contended that if the terms of the order were not protected, the
impugned resolutions of
the unlawfully constituted PSSC would become
operational and enforced, and the purported reinstatement of Myolwa
would continue.
SAMWU further contends that it has a
prima facie
right to interdict Myolwa from holding himself out as the Provincial
Secretary pending the finalisation of the application for
leave to
appeal or a determination of his dismissal dispute before the CCMA.
[22]
In the answering affidavit, the respondents simply denied that SAMWU
had established a
prima facie
right to the relief sought, and
made reference to annexure ‘MA5’ , which is essentially
correspondence from SAMWU’s
attorneys of record in respect of
another matter pending before the Labour Appeal Court.
[23]
It is however not sufficient for the purposes of this application to
simply argue that SAMWU has not established a
prima facie
right on the grounds that there are questions of legitimacy
surrounding its national leadership as annexure ‘MA5’
states. The fact of the matter is that the legitimacy or otherwise of
the SAMWU’s national leadership is an issue that is
pending
before the Labour Appeal Court, and until such time that the issue is
finally determined, it is not for
this
court to pronounce upon
it.
[24]
What is relevant for the purposes of this application, and
notwithstanding the clear internal strife within SAMWU and questions

surrounding the legitimacy of its national leadership, its current
national leadership is in possession of a favourable court order,

which in the absence of anything cogent coming from the respondents,
it is entitled to execute.
[25]
In regards to alternative remedies, in the absence of SAMWU utilising
the provisions of section 18 of the Supreme Court
Act, I fail
to appreciate how it can be said that it has any other remedy if it
seeks to execute its favourable order. No other
forum can assist
SAMWU in respect of the relief it seeks.
[26]
In regard to the requirements of irreparable harm, it further goes
without saying that the relief granted by Steenkamp J could
only have
been granted as SAMWU had demonstrated harm in the matter before him.
In the light of the order secured, it goes without
saying that if it
is not executed pending the determination of the application for
leave to appeal, the respondents would proceed
to implement the
impugned resolutions taken by the PSSC, and amongst other things,
begin a process of channelling SAMWU’s
members monthly
subscriptions into accounts of unknown persons as it is alleged, and
further ignore the decision to dismiss Myolwa.
[27]
Again not much came out of the answering affidavit to dispute that
SAMWU would suffer irreparable harm if it is unable to execute
its
order pending the final determination of the application for leave to
appeal that order. The respondents’ contention
that they will
suffer permanent harm consequent to the execution of the order on the
basis that the entire members of the Eastern
Cape demand that Myolwa
should be their leader despite him being dismissed by the national
office is a matter for the parties to
deal with in terms of their own
constitution, and it bears little relevance to a determination of
whether irreparable harm to SAMWU
had been demonstrated in this case
or not.
[28]
The balance of convenience in the light of the averments made in the
answering affidavit clearly favour the granting of the
relief sought.
The respondents’ averments in this regard merely relate to the
internal strife within SAMWU which is something
this Court should
stray away from.
Conclusions:
[29]
This Court can only adjudicate on matters of law and fact. The law is
such that SAMWU has in this case, asserted its rights
in terms of
section 18 of the Superior Courts Act, and has demonstrated
that
the facts and circumstances of this particular application are
exceptional and warrant a deviation from the normal rule. I
am
satisfied that on the facts, SAMWU has demonstrated that it would be
prudent to depart from the ordinary rule that an appeal
suspends the
operation of order of Steenkamp J. In the main, SAMWU has further
proven on a balance of probabilities that it will
suffer irreparable
harm should the order for leave to execute not be granted pending the
appeal. It has further demonstrated that
it has no other available
alternative remedy, and that there is nothing placed before the Court
by the respondents to demonstrate
that they would suffer irreparable
harm if leave to execute is granted pending appeal.
[30]
It is with great reluctance that it has to be
stated that the applications before the Court as is evident from the
pleadings, are
symptomatic of the deep fissures within SAMWU. This is
indeed a sad state of affairs for a large union with a rich history
in local
government circles, and an important partner in the Main
Collective Agreement entered into with all local municipalities. In
the
end, the old African proverb that; ‘
When
elephants fight, it is the grass that suffers’
is even more apposite in this case. The ‘elephants’ in
this case are SAMWU national office bearers in the one corner,
and
the Eastern Cape PEC/region of SAMWU in the other corner. The ‘grass’
is unfortunately the long-suffering membership
of SAMWU, who
diligently pay their monthly subscriptions, with an expectation that
their interests as workers will be dutifully
served, instead of being
casualties in an internal fight which they never bargained for. In a
nutshell, the internal squabbles
within SAMWU are not in anyone’s
interests, more specifically its members.
[31]
I have further had regard to the requirements of
law and fairness in regard to costs. The protagonist in this SAMWU
debacle need
to get their act together in the interests of their
members. It is therefore my view that a cost order will not
contribute in any
meaningful way in that regard.
[32]
In the
premises, the following order is made;
Order:
1.
The application is heard as one of urgency and the rules relating
to
forms and manner of service are dispensed with.
2.
The order of this Court (per Steenkamp J) issued on 11 April 2018

under case number J 965/18 is declared operational, executable
and not suspended pending the final determination of the application

for leave to appeal and any subsequent appeal proceedings that may
follow.
3.
There is no order as to costs.
____________________
E Tlhotlhalemaje
Judge of the Labour Court of South
Africa
APPEARANCES:
For
the applicant:

Adv. Thato Manda
Instructed
by:

Maenetja
Attorneys
For
the Respondents:

Mr H.N
Mkhongozeli of H.N Mkhongozeli Attorneys
[1]
Act 10 of 2013
[2]
Act 66 of 1995, as amended
[3]
Page 41 of the paginated papers
[4]
The respondents in their answering affidavit disputes that the
second respondent is a former official.
[5]
18.
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and
unless the court under exceptional circumstances orders otherwise,
the operation and execution
of a decision which is the subject of an
application for leave to appeal or of an appeal, is suspended
pending the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the
court under exceptional circumstances orders otherwise, the
operation and execution of a
decision that is an interlocutory order
not having the effect of a final judgment, which is the subject of
an application for
leave to appeal or of an appeal, is not suspended
pending the decision of the application or appeal.
(3)
A court may only order otherwise as
contemplated in subsection (1) or (2), if the party who applied to
the court to order otherwise,
in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the
court does not so order and
that the other party will not suffer
irreparable harm if the court so orders.
(4)
If a court orders otherwise, as
contemplated in subsection (1)—
(i)
the court must immediately record its
reasons for doing so;
(ii)
the aggrieved party has an automatic right
of appeal to the next highest court;
(iii)
the court hearing such an appeal must deal
with it as a matter of extreme urgency; and
(iv)
such order will be automatically
suspended, pending the outcome of such appeal.
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or
of an appeal, as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the
rules.
[6]
Luxor
Paints (Pty) Ltd v Lloyd
(2017)
ILJ 1149 (LC);
Wenum
v Maquassi Hills Local Municipality
(J
1684/15, 22 July 2016)
;
Fidelity Security Services (Pty) Ltd v Naidoo and Another
(J1837/2015)
[2016] ZALCJHB 70 (3 February 2016
);
Tshepo Joseph Matseba v Liberty Group Limited
Case
no: J 2920/16 (Delivered on 14 December 2016
);
South
African Maritime Safety Authority (‘SAMSA’) v Muroro
Dziruni
Case
No: J 1818/17 (Delivered on 15 December 2017)
[7]
Which
provides that;
‘
The
provisions of this Act relating to Superior Courts other than the
Constitutional Court, the Supreme Court of Appeal or the
High Court
of South Africa, are complementary to any specific legislation
pertaining to such Courts, but in the event of a conflict
between
this Act and such legislation, such legislation must prevail.’
[8]
The
‘
threshold
factual test’ referred to in
Incubeta
Holdings (Pty) Ltd and another v Ellis and another
2014 (3) SA
189 (GJ)
[9]
At para 6