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[2019] ZALCJHB 222
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Msi and Others v National Union of Mineworkers National Executive Committee (J1714/19) [2019] ZALCJHB 222 (16 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Of
interest to other Judges
CASE
NO: J1714/19
In the matter between:
VUYOLWETHU
MSI AND 8 OTHERS
Applicant
and
NATIONAL UNION OF
MINEWORKERS
NATIONAL
EXECUTIVE COMMITTEE
Respondent
Heard:
14 August 2019
Delivered:
16 August 2019
JUDGMENT
VAN NIEKERK J
[1]
The applicants are office bearers of the respondent (the union). On
11 July 2019, the union
suspended the applicants. They seek an
interim order reinstating them to their previous positions pending
‘the finalization
of Part B of this application…’.
There is no Part B to the notice of motion, but for the heading. The
founding affidavit
discloses that the nature of the final relief to
be sought is that of a review ‘in respect of the unlawful
disciplinary procedure’.
The basis of that application is said
to be that the disciplinary process was unlawful on account of a
failure to comply with the
union’s constitution, that the
applicants were not afforded an opportunity to properly conduct their
defence, and that they
were not afforded an opportunity to make
representations.
[2]
The application is brought in terms of s 158 (1) (e) of the Labour
Relations Act (LRA),
in terms of which this court is empowered to
determine a dispute between a registered trade union and any one or
more of its members
about any alleged non-compliance with the
constitution of that trade union. I accept that the applicants are
not guilty of any
undue delay in filing the present application, and
that the application is urgent.
[3]
The nature of the application is such that the applicants’ case
must necessarily
be founded on the union’s constitution. The
union is a voluntary association and its constitution is definitive
of the rights
and obligations of its members and office bearers.
Annexure 3 to the Constitution provides in item 64 precautionary
suspension.
That provision reads as follows:
6.
Precautionary Suspension
6.1
The President or General Secretary, after consulting with other
national office bearers
and elected officials, may suspend a member,
elected official or office-bearer as a precautionary measure if this
is in the interests
of the union and the investigation of the matter
with the prosecution of the disciplinary proceedings.
6.2
The President or General Secretary may determine the terms and
conditions of the suspension
except that where applicable such a
suspension must be on full pay.
[4]
Clause 24 of the constitution establishes the office of the deputy
general secretary.
In terms of clause 12.4.2.2, the deputy general
secretary must exercise the power and perform the duties of the
general secretary
in the latter’s absence.
[5]
The applicants were suspended, as I have indicated, on 11 July 2019
in terms of a
letter addressed to each of them by the deputy general
secretary. The letter reads as follows:
Your attention is drawn
to the NEC decision of the 27
th
and 28
th
of
June 2019 and further consultation with national office bearers on
Monday, 8 July 2019 a decision was taken that you are suspended
to
participate in all union activities pending further investigation of
the matter and possible charges on your behaviour and conduct
in the
union.
You are immediately
suspended from 11 July 2019 but you will remain a union member until
the prosecution of the disciplinary proceedings
all suspension is
lifted.
[6]
The requirements for interim relief are well-established. The purpose
of interim relief
is to preserve or restore the status quo pending
the final determination of the rights of the parties. Although it is
not clear
to me, as I have indicated, precisely what final relief the
applicants seek, I would assume in their favour that they intend to
have their dispute determined in terms of s 158(1)(e), and that the
final relief they seek is an order to the effect that they
were
suspended in breach of the union’s constitution. Whether the
proceedings ought appropriately to assume the form of a
review is not
a matter that need be decided at this point.
[7]
The requirements for interim relief are well-established. For an
applicant to succeed,
he or she must establish a prima facie right,
though open to some doubt, a well-grounded apprehension of
irreparable injury in
the absence of an ordinary remedy. Further, in
the exercise of its discretion, the court must weigh the prejudice to
the applicant
if the interdict is withheld, against the prejudice to
the respondent if it is granted, sometimes referred to as the balance
of
convenience.
[8]
In the present instance, I am not persuaded that the applicants have
cleared the first
hurdle, i.e. a prima facie right though open to
some doubt. The high watermark in the application is the assertion
that the letter
of suspension was signed by the deputy general
secretary and not the general secretary. As the constitution makes
clear, the deputy
general secretary is authorised to act on behalf of
the general secretary in his or her absence. In the present instance,
the general
secretary has annexed a copy of a letter addressed to the
deputy general secretary in which he records that he would be out of
the country and it had slipped his mind to forward letters of
suspension to the applicants consequent on the union’s NEC
endorsing the recommendation that they be suspended.
[9]
In so far as the applicants appear to submit that in substance, their
suspension constitutes
a disciplinary penalty, this is simply not the
case. The constitution draws a distinction between disciplinary
proceedings and
sanctions, and precautionary suspensions. The
applicants’ suspensions have been effected in terms of item 6
of schedule 3
referred to above, which contemplates suspension other
than as a disciplinary sanction. Further, the applicant’s
reliance
on an alleged internal appeal of the decision to suspend
them is misplaced. There is nothing in the union’s constitution
that affords suspended office bearers or members the right to appeal
a precautionary suspension and the applicants ought reasonably
to
have been aware of that fact. The appeal procedure applies only to
those persons found guilty of disciplinary offences and entitles
such
persons to submit an appeal within seven days of the notice of the
decision sought to be appealed. The terms of the letters
of
suspension make clear that the applicants have been suspended pending
further investigation into possible charges. It is manifestly
clear
that they have not been found guilty of any offence.
[10]
In so far as the applicants contend that they were denied the right
to be heard prior to the
suspension or otherwise denied the
opportunity to make representations, it should be recalled that the
applicants are not before
the court in their capacity as employees,
nor is the dispute one that concerned an alleged unfair labour
practice. None of the
rules developed under the rubric of the
definition of unfair labour practice in the LRA as they relate to
precautionary suspension
apply in the present instance. The right to
suspend in terms of the union’s constitution is broadly
expressed and confers
broad powers on the president and general
secretary. The applicants have been unable to demonstrate that these
powers were exceeded
or that their suspensions were effected other
than in accordance with the terms of the constitution.
[11]
Having failed to establish a prima facie right to the relief they
seek, it is not necessary for
me to consider the remaining
requirements as they pertain to interim relief. The application
stands to be dismissed.
[12]
Finally, the court has a broad discretion in terms of s 162 to make
orders for costs according
to the requirements of the law and
fairness. The respondent has succeeded in its opposition to the
application and there is no
reason why costs ought not to follow the
result.
I make the following
order:
1.
The application is dismissed, with costs.
André van Niekerk
Judge
APPEARANCES
For
the applicant: Adv N.D Sekwakweng, instructed by MNM & Associates
For the respondent: Adv C
Orr SC, instructed by CTH Inc