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[2018] ZALCJHB 206
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Mahoa and Others v National Union of Mineworkers and Others (J1844/18) [2018] ZALCJHB 206 (18 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: J 1844/18
Not
Reportable
In
the matter between:
RICHARD
MAHOA First
Applicant
ROBERT
MADONSELA Second
Applicant
LUXOLO
MPAFA Third
Applicant
DIKELEDI
MOKGAUTSI Fourth
Applicant
WILLIAM
MATABOGE Fifth
Applicant
THAPELO
QABATHI Sixth
Applicant
SETSOGE
MPHAHLELE Seventh
Applicant
GEOFFREY
MOATSHE Eighth
Applicant
NONHLANHLA
MBATANI Ninth
Applicant
and
NATIONAL
UNION OF
MINEWORKERS First
Respondent
NATIONAL
EXECUTIVE COMMITTEE OF THE
NATIONAL
UNION OF
MINEWORKERS Second
Respondent
KOLEKILE
DAVID SIPUNZI
(N.0)
Third
Respondent
Heard:
5 June 2018
Delivered:
18 June 2018
JUDGMENT
WHITCHER.
J
[1]
The applicants have instituted a two part application. Part A, which
is before me, seeks interim relief pending the finalisation
of Part B
of the application.
[2]
In Part A, the applicants seek to have the legal force and effect of
the following decisions taken by the NEC at a Special National
Executive Committee meeting (held on 21 May 2018) suspended and
interdicted: (a) the decision in terms of which the 2017 Rustenburg
Regional elections were nullified (and which had the effect of
nullifying the election of the applicants as regional office bearers
of the Rustenburg Region); (b) the decision to establish a Task Team
to assist the Rustenburg Region to prepare for a regional
conference
to take place within six (6) months; and (c) the decision to suspend
the first applicant.
[3]
Consequent to the above, the applicants want this Court to order NUM
to reinstate them into their elected positions with immediate
effect
and to refrain from preventing them from carrying out their
duties
as elected regional office bearers,
[1]
pending
the final determination of Part B.
[4]
Part B in essence alleges that the decisions taken by the NEC at the
Special National Executive Committee meeting on 21 May
2018 are in
breach of the Constitution of NUM and the Constitution of South
Africa. The attack essentially relies on alleged procedural
defects.
[5]
The applicants contend that, in acting as it did, the NEC “trampled”
their rights set out in s 4(2)(a) of the LRA:
the right to
participate in the lawful activities of their trade union and to
participate in the election of its office bearers.
[6]
The respondents oppose the application on various grounds.
Jurisdiction
[7]
The applicants base all relief sought on the provisions of s 4(2)(a)
of the LRA. Section 4 deals with
employees
’
right
to freedom of association
[2]
and
is contained in Chapter 2 of the LRA. Section 9 which also falls
within Chapter 2 provides that that disputes about the interpretation
and application of Chapter 2 requires referral to the CCMA or a
Bargaining Council for conciliation, and then to the Labour Court
for
adjudication.
[8]
In light of this, the respondents submit that the Court has no
jurisdiction to consider Part B. As the relief sought in Part
A is
premised on this Court eventually ruling on Part B it follows that
the Court has no jurisdiction to deal with Part A either.
[9]
This point is dismissed. In
Taho
v Public Services Sector Education and Training,
the
Court held thus:
‘…
I
hold the view that argument around the issue of jurisdiction during
an interim relief application is somewhat premature and ought
not to
arise at all. That argument, which is purely procedural, could best
be left to the court hearing the merits in due course’.
[3]
[10]
At this stage, and under Part A of the application, the applicants
seek urgent interim relief and other ancillary relief. This
Court’s
power to grant urgent interim relief is authorised by s 158(1)(a)(i)
of the LRA.
The
first applicant’s authority
[11]
The respondents challenge, on the basis that there are no
confirmatory affidavits, the first applicant’s averment that
he
is
“duly
authorized to depose to the [founding] affidavit and to launch this
application”. I am not inclined to uphold
this point.
[12]
In
Ganes
and Another v Telecom Namibia Ltd
[4]
Streicher
JA stated that:
‘
In
my view, it is irrelevant whether Hanke had been authorised to depose
to the founding affidavit. The deponent to an affidavit
in motion
proceedings need not be authorised by the party concerned to depose
to the affidavit. It is the institution of the proceedings
and the
prosecution thereof which must be authorised. In the present case the
proceedings were instituted and prosecuted by a firm
of attorneys
purporting to act on behalf of the respondent. In an affidavit filed
together with the notice of motion a Mr Kurz
stated that he was a
director in the firm of attorneys acting on behalf of the respondent
and that such firm of attorneys was duly
appointed to represent the
respondent. That statement has not been challenged... It must,
therefore be accepted that the institution
of proceedings was duly
authorised. In any event, Rule 7 provides a procedure to be followed
by a respondent who wishes to challenge
the authority of an attorney
who instituted motion proceedings on behalf of an applicant. The
appellants did not avail themselves
of the procedure so provided.’
The
third applicant’s suspension
[13]
I agree with the respondents that there is no basis for any relief to
be afforded specifically to the third applicant in this
application.
He was suspended in February 2018 (that is, long before the special
NEC meeting) for reasons entirely unconnected
with the current
application, and his suspension has not been canvassed in the papers
before me.
Urgency
[14]
I accept that this matter is urgent and that the Respondents were not
denied a reasonable time to respond to this application.
The period
from the date of the NEC decision to the date of launching the
present application is five (5) court days. There was
therefore no
delay in bringing these proceedings before this court. The present
application is no different to that which was launched
in the High
Court and accordingly the Respondents had six (6) days within which
to respond to this application.
[15]
Further, NUM is going to the National Congress on 20 to 22 June 2018.
The applicants contend that they need to attend the National
Congress
in their capacities as regional office bearers.
Chronology
of events
[16]
The applicants were elected as regional office bearers for the
Rustenburg Region of NUM at Regional Conference held from 18
to 20
August 2017: regional chairperson (1
st
applicant), deputy regional chairperson (2
nd
applicant), regional secretary (3
rd
applicant), deputy regional secretary (4
th
applicant), regional treasurer (5
th
applicant), deputy-chairperson for education (6
th
applicant), deputy-chairperson for health and safety (7
th
applicant), deputy-secretary for education (8
th
applicant), deputy-secretary for health and safety (9
th
applicant).
[17]
Regional Committees consist of the positions to which the applicants
were appointed
and
a chairperson and secretary for women, a chairperson and secretary
for the Youth structure and a chairperson and secretary of
each
branch of the region in question. The applicants were therefore not
the only ROBs in the Rustenburg region.
[18]
In terms of NUM’s Constitution, the general
function
of a Regional Committee is to supervise the affairs of the region.
[19]
A key
function
of a Regional Committee is to prepare the regional delegation to a
National Congresses (clause 8.4.3). There is an upcoming National
Congress on 20 to 22 June 2018.
[20]
In terms of clause 11.3.3, regions
must
send their nominations for the 9 (NEC) office bearers to an
independent electoral commission decided by the NEC at least one
month
before the National Congress; and send their resolutions to the
General Secretary to reach his office or her office at least
twenty-one
(21) days before the National Congress.
[21]
In relation to the upcoming National Congress, nominations were open
from 8 May to 6 June 2018.
[22]
In terms of clause 11.6,
delegates
must,
inter
alia
,
elect (NEC) office bearers at the National Congress.
[23]
In terms of clause 11.8.2 (in relation to electing NEC office bearers
and officials at the National Congress) regions with
voting rights
may nominate and second candidates from the floor for positions of
office bearers and officials of the NEC, except
for the positions of
Regional Chairperson and Regional Secretary who hold positions on the
NEC by virtue of their positions. A
candidate nominated in terms of
clause 11.8.2 who was nominated as contemplated in sub-clause
11.3.3.1 must be seconded by a majority
of regions.
[24]
Resolutions at a National Congress must be adopted by a majority vote
of voting
delegates.
[25]
On 14 September 201, the national office bearers (“NOBs”)
received a letter of complaint about the way the elections
at the
2017 Rustenburg Regional Conference had been conducted. This is the
Regional Conference at which the applicants were elected
regional
office bearers.
[26]
On 25 November 2017 the NEC resolved to establish an independent Task
Team to investigate the complaint and that the Task Team
should be
endorsed by the NOBs before doing its work.
[27]
According to the respondents’ answering affidavit, the NOBs,
acting on this resolution secured quotes from law firms
and decided
to appoint Nomaswazi Maseko Inc Attorneys (NM Inc) to undertake the
investigation. Save for a bald denial, this claim
was not disputed in
any meaningful manner in the founding or replying affidavit. The
claim that NM Inc constituted an “independent”
Task Team
was similarly not disputed.
[28]
At a Special NEC meeting held on 21 May 2018,
attended
by the first and fourth applicants
,
a “Final Report – Rustenburg Regional Conference
Investigation” compiled by NM Inc was tabled. The respondents
provided full, undisputed details as to why the report was tabled
only on 21 May 2018.
[29]
The final report, in essence, determined that there were a host of
irregularities, including financial misconduct in relation
to the
Rustenburg election.
[30]
At the meeting, the NEC resolved to nullify the outcome of the 2017
Rustenburg Regional Conference election with immediate
effect. The
nullification meant that the applicants were no longer officer
bearers.
[31]
The NEC also resolved to establish a Task Team to assist the
Rustenburg Region to prepare for a Regional Conference to take
place
within six (6) months.
[32]
The first applicant was implicated in the financial irregularities in
the report of NM Inc, and the NEC, purporting to act
in line with
Clause 6 of annexure 3 to the union’s Constitution, suspended
him at the meeting of 21 May 2018.
The
applicants’ submissions
[33]
I have summarised their submissions as follows.
[34]
The NEC is not empowered by the union’s Constitution to set
aside Regional Conferences and thereby automatically “remove”
regional office bearers without following the provisions of clause 14
of the Constitution.
[35]
The NEC flouted the provision of clause 14 in that the applicants
were not afforded an opportunity of being heard before their
“removal”, and in the case of the first applicant, his
further suspension.
[36]
Clause 14, which deals with
Discipline
and removal from office of office bearers and elected officials and
disciplining of members,
provides that:
‘
If
in the opinion of the NEC, an office bearer who serves on the NEC or
a Regional Committee has behaved in a manner which is detrimental
to
the interests of the union and its members, it may resolve to remove
him or her from office or to impose such penalty as it
sees fit. When
disciplining
an office bearer, the NEC must follow the [Constitution’s]
disciplinary code and procedure. The individual may appeal against
such decision (which must remain in force until the appeal is
determined).’
[37]
As a result of the unconstitutional conduct of the NEC, their
“rights”, as an integral part of the Rustenburg Regional
Committee, to
inter
alia,
participate in the activities of the union, perform the
constitutional functions of a Regional Committee and, at this
critical
moment, to prepare the regional delegation to the National
Congress has been infringed. As the Rustenburg Regional Committee,
they
would have been responsible for preparing the second largest
delegation of NUM to the upcoming National Congress and to influence
the elections of the NOBs and the NEC. At this congress, delegates
from the various regions of NUM will,
inter
alia,
elect office bearers and officials who will occupy their positions
for the next three years.
[38]
It is evidence from the founding affidavit that the applicants have a
substantial interest in having the third respondent removed
as the
General Secretary at the upcoming National Congress.
[39]
The applicants further contend that their “removal” has
left the Rustenburg Region leaderless. The remaining regional
officer
bearers do not constitute the Regional Committee or a quorum for a
meeting of the Regional Committee. There is effectively
no Regional
Committee that can fulfil the functions and powers of a Regional
Committee.
The
respondents’ submissions
[40]
Significantly the applicants do not attack a single factual and
substantive finding made in the report.
[41]
The purpose of the NEC is set out in Clause 9 of the Constitution.
Clause 9.1.3 provides that:
‘
The
NEC manages the affairs of the union by doing such lawful things
which in its own opinion furthers the interest of the union
and its
members and are consistent with this Constitution.’
[42]
There is no provision of the Constitution which deals specifically
with an irregular election in a region. However, it is impossible
to
argue that the setting aside of an irregular election is not
something which furthers the interests of the union and its members.
[43]
Given the serious irregularities found by NM Inc it is impossible to
sustain the contention that the decision made by the NEC
to nullify
the election was one “
no
proper trade union structure”
could have reached. It was necessary for the special NEC to act
swiftly to protect the interests and image of the union.
[44]
The provision of clause 14 of NUM’s Constitution dealing with
the removal of office bearers was not applicable as the
applicants’
removal flowed from the nullification of the Rustenburg Regional
election.
[45]
The Rustenburg Region is not leaderless prior to the National
Congress and a Regional re-election in 6 months’ time.
There
are four regional office bearers who have not been removed from their
office (they had been elected prior to the Regional
Conference and
their term of office has not yet expired). The Regional Committee is
composed of the 9 office bearer positions formerly
held by the
applicants
and
the chairpersons and secretaries of
each
and every branch
in the region, a chairperson and secretary for women and chairperson
and secretary for the Youth structure.
[46]
The submission of nominations for the National Congress is not the
function of regional office bearers. It is the function
of the
Regional Committee which includes many individuals who are not
regional office bearers.
[47]
Nominations from Regional Committees for national office bearers and
officials were open from 8 May 2018 to 6 June 2018. Thus
the setting
aside of the Regional elections could not have impacted on this.
[48]
The Constitution does not require the regional office bearers to
prepare the Rustenburg delegation to the National Congress.
This is
prepared by the Regional Committee which is far broader than the
regional office bearers positions formerly held by the
applicants.
[49]
Apart from the first and third applicants, who are suspended, nothing
prevents any of the other applicants attending and participating
in
the National Congress if they are chosen as delegates by the
Rustenburg Region. If so chosen nothing prevents them from lobbying
for the removal of the General Secretary.
[50]
The first applicant was implicated in financial irregularities in the
report of NM Inc. As a result, he had been suspended
in line with
Clause 6 of annexure 3 to the union’s Constitution. If found
guilty of misconduct after the requisite hearing
has taken place, he
may have his membership terminated. Insofar as his complaint that he
was not heard prior to his suspension
is concerned, on his own
version that decision was taken following the special NEC meeting of
21 May which he attended.
Analysis
Prospects
of success
[51]
It is my view that the submissions by the respondents have placed
serious doubt on the applicants’ prospects of success
in the
main application. The applicants have set out no concrete evidence
that the NEC did not abide by the resolution that it
secure the
services of an
independent
task team to investigate the Rustenburg regional election and that
the act of nullification was not reasonable in the circumstances.
[52]
Moreover, the applicants have not demonstrated that they, as
individuals,
had the right to be heard prior to a nullification of an election.
[53]
I have taken note that NM Inc interviewed the first applicant and
several of the other applicants prior to the report being
rendered.
Prima
facie right
[54]
One of the fundamental requirements for an interdict
pendent
lite
is
to assert a right which is the subject matter of the main application
and which the applicant seeks to protect by means of interim
relief.
[55]
In this application, the
rights
expressly relied on the applicants are the rights set out in
section
4(2)
of the
Labour Relations Act, 1995
, namely the right to
participate in the lawful activities of their trade union and the
right to participate in the election of
any of its office bearers.
[56]
The action of the NEC, right or wrong, has not deprived the
applicants of these rights. Like any other member, they still possess
the right to participate in the lawful activities of NUM and in the
election of its office bearers.
[57]
Apart from the first and third applicants, who are suspended, nothing
prevents any of the other applicants attending and participating
in
the National Congress (or any Regional Congress) if they are chosen
as delegates by the Rustenburg Region. If so chosen nothing
prevents
them from lobbying for the removal of the General Secretary.
[58]
The union’s constitution does not afford specific and special
rights
to office bearers. Rights are afforded to union members and
powers
and duties
are
assigned to
collectives,
that is, Branch, Regional and National
Committees.
Irreparable
harm
[59]
As indicated above, the applicants still possess the right to
participate in the lawful activities of NUM and in the election
of
its office bearers. Apart from the first and third applicants, who
are suspended, nothing prevents any of the other applicants
attending
and participating in the National Congress (or any other Congress) if
they are chosen as delegates by the Rustenburg
Region. If so chosen
nothing prevents them from lobbying for the removal of the General
Secretary.
[60]
The contention that their removal will result in the total collapse
of the Rustenburg Region is an
organisational
issue (which will probably and/or could probably be addressed at the
National Congress). The applicants cannot rely on
harm
to the union
to address the issue of potential
personal
irreparable
harm.
[61]
In any event, the NEC has made provision for a re-election within 6
months. The NEC resolved to establish a Task Team to assist
the
Rustenburg Region to prepare for a Regional Conference to take place
within six (6) months.
Balance
of convenience
[62]
The balance of convenience does not favour the applicants. In my
view, the union stands, potentially, to suffer more harm than
the
applicants if this urgent interim relief is granted. Essentially what
the applicants are asking this Court to do is to order
the union to
reinstate them as regional office bearers in circumstances where
their attack on the NEC’s decision is essentially
a
procedural
one
and the undisputed
factual
and
substantive
findings
of NM Inc demonstrate a seriously flawed election process.
Alternative
remedy
[63]
The applicants contend that they cannot turn to any structure of NUM
for assistance. However, if, as they contend, the act
of the NEC
amounted to disciplinary action, then they have the right to lodge
appeals against the decision of the NEC, as provided
for in clause
14.
[64]
Furthermore, as already stated above, the issue of
organisational
harm and the nullification of an election is surely an organisational
matter which can be addressed at structures such as the National
Congress.
Conclusion
[65]
All things considered, it is my view that the applicants have failed
to make out a case for the relief they seek under Part
A of the
application.
[66]
I do not consider it appropriate to grant an adverse cost order,
considering the relationship between the parties, particularly
at
this stage. And, although I have dismissed the matter, I did not
consider the application to be frivolous.
[67]
In the premises, I make the following order:
Order
1.
The application for interim relief is dismissed.
2.
There is no order as to costs.
________________________________
B.
Whitcher
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
D Z Kela,
Instructed
by:
Ndumiso Voyi Incorporated Attorneys
For
the Respondents: C
Orr
Instructed
by:
Cheadle Thompson & Haysom Inc
[1]
Emphasis added.
[2]
My
emphasis.
[3]
2014
JDR 0057 (GNP) at para 14.
[4]
2004
(3) SA 615
(SCA) at para 19.