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[2019] ZALCJHB 319
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Pule obo Public Servants Association of SA Department of Home Affairs Branch and Others v Public Servants Association and Others (J2065/2019) [2019] ZALCJHB 319; (2020) 41 ILJ 488 (LC) (24 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE NO: J 2065/2019
In the matter between:
JOSEPH PULE obo PUBLIC
SERVANTS
ASSOCIATION OF SA
DEPARTMENT OF
HOME
AFFAIRS BRANCH
First Applicant
DONALD MALEBYE obo
PUBLIC SERVANTS
ASSOCIATION OF SA
DEPARTMENT OF
BASIC
EDUCATION BRANCH
Second Applicant
DONALD MALEBYE obo
PUBLIC SERVANTS
ASSOCIATION OF SA
DEPARTMENT OF
SCIENCE
AND TECHNOLOGY BRANCH
Third Applicant
And
PUBLIC
SERVANTS ASSOCIATION
First Respondent
GENERAL
MANAGER FOR PSA
N.O
Second Respondent
CHAIRPERSON OF THE PSA
BOARD
OF
DIRECTORS
Third Respondent
CEBO
MNTWINI
Fourth Respondent
MARCUS
RAMAKGALE
Fifth Respondent
JUSTICE
SHIBURI
Sixth Respondent
NOMABANDLA
SILIYANE
Seventh Respondent
MOSALA
SEELAMO
Eighth Respondent
Heard:
22 October 20
Judgment:
24 October 2019
JUDGMENT
VAN
NIEKERK J
[1]
On 19 September 2019, the first respondent (the PSA), held its annual
general meeting.
At the meeting, and election was held to fill five
vacancies on the PSA’s board. The applicants, being three
branches of
the PSA, contest the election. In particular, they
challenge the number of spoilt votes recorded and have demanded
access to the
ballot papers. This has been refused, and a special
board meeting was called for 9 October 2019.In these proceedings, the
applicants
seek interim relief, being an interdict restraining the
first, second and third respondents from convening any further board
meeting
and filling the five vacancies on the board, pending the
finalisation of an application to review and set aside the election
of
the board of directors at the annual general meeting.
[2]
At the hearing of the application, the court raised (as it is obliged
to do) a jurisdictional
point. The point related to the document on
which the applicant relies for their contention that the respondents
have acted unlawfully
– a document referred to as the PSA’s
‘statute’ – which is described in the papers as the
PSA’s
memorandum of incorporation. The PSA lives a dual life –
it is a registered trade union under the LAbour Relations Act (LRA),
but it is also an entity incorporated under the Companies Act. The
definition of ‘statute’ provides that the statute
is also
the constitution of the PSA. It would appear therefore for present
purposes, the applicant seek relief in terms of s 158(1)(e)
of the
LRA. That section provides that this court is empowered to -
…
determine
a dispute between a registered trade union... and
any
one of the members
or applicants for
membership thereof, about any non-compliance with-
(i)
the constitution of that trade union… (own emphasis).
[3]
The question that arises then is whether the applicants are members
of the PSA, since
it is only disputes between one or more members of
a union and the union over which this court has jurisdiction. (I
accept for
present purposes that although s 158 is headed ‘Powers
of the Labour Court’ that s 158 (1) has jurisdictional
consequences.)
[4]
The persons who hold themselves out as representatives of the
applicant branches do
not approach the court as individual members of
the PSA, but rather in their positions as national chairpersons of
branches of
the PSA. In the founding affidavit, they describe
themselves as representing the branch concerned, and ‘acting in
the interest
of its members’. They further describe themselves
as instituting these proceedings ‘as a collective in pursuit of
furthering
the objectives of PSA to protect the rights and interest
of its members’. The rights that they assert in support of the
relief
sought in the present application are asserted in the same
capacity. This much is confirmed by the deponent to the replying
affidavit,
where at paragraph 15 and in response to a challenge to
the locus
standi
of the branches to initiate these
proceedings, he avers the following:
13.3
The deponent is to be reminded that none of the Chairpersons acting
herein in their representative
capacities have personal interests in
the outcome of the matters complained but do so in the collective
interest of the branches
they represent…
15.1
A member who has a personal grievance with the PSA can correctly so
if they are disgruntled with the
PSA personally challenge the PSA in
their individual capacities, in this case the Chairpersons who
brought the application on behalf
of their members are not personally
or individually disgruntled towards the PSA.
15.2
They are not disputing the outcome of the elective congress in their
individual capacities, but are
raising the issues as they were
delegates mandated by a collective.
15.3
I and the other chairpersons could therefore not risk employing our
personal resources and/or getting
costs orders against us when we
have no individual and/or personal interest in the disputes raised
with the First Respondent. …
[5]
The capacity in which the applicant branches’ representatives
have filed these
proceedings could not be more clearly stated. In
their individual capacities, they are union members, but they do not
approach
the court in that capacity. On the contrary, they disavow
that status and act in a representative capacity, on behalf of the
three
branches that are respectively applicants in these proceedings.
It follows that in the absence of any claim by one or more
members
of the PSA (as opposed to one or more of its branches) concerning
non-compliance with the PSA’s constitution, the claim is
not
one that falls within the ambit of s 158 (1)(e). This court thus has
no jurisdiction to entertain the application.
[6]
Even if I am wrong in coming to this conclusion, there is a second
and related basis
on which the application stands to fail. This is
the respondents’ point related to
locus standi
. The
applicants approach this court, as I have indicated, as branches of
the PSA, aggrieved at the outcome of the election held
at the annual
general meeting and seeking remedial relief.
[7]
In
Luvela and others v The African National Congress and others
[2011] JOL 26964
(ECM), Nhlangulela J said the following in
respect of the locus
standi
of branches of a political party:
The branches are not
legal
personae
. They also do not have a life which is separate
from that of the ANC. They have no constitution of their own which is
separate
from that of the ANC. There is no evidence available to show
that the ANC has permitted its branches to institute these legal
proceedings.
Instead the ANC has been sued. I therefore held that the
applicants have no right to sue for and on behalf of the branches of
the
ANC.
[8]
This judgment was referred to with approval by Pickering J in
Bolman
and another v The African National Congress and others
(813/2011,
31 March 2011) where the court upheld a challenge to the authority of
the applicants, respectively the chairperson and
secretary of a
branch of a political party, to institute the proceedings in their
representative capacities. The court referred
to
Nasionale Party
in die Oos Kaap en ‘n ander v Port Elizabeth Oorgangsraad en
andere
1998 (2) BCLR 141
(SE), a challenge to the locus
standi
of the second applicant, a caucus of the first applicant, a political
party, was similarly upheld on the basis that the second
applicant
was not a legal persona. The court pointed out that the power of a
voluntary association to sue or be sued could be implied
in certain
circumstances even though the constitution concerned lacked any
express provision empowering the association to sue,
and that a power
to sue could be implied where it was incidental to other express
powers. On this basis, the court dismissed the
challenge to the locus
standi
of the first applicant (the political party), but
upheld the challenge in respect of the second applicant (the party
caucus) on
the basis that it had no constitution of its own, and was
purely a structure within the first applicant to ensure internal
discipline.
[9]
In the present instance, the PSA’s statute provides for the
structures within
which the PSA functions. A branch is one of those
internal structures. The board is empowered to approve the
establishment of branches,
on the basis of one branch per national
department or functional component as applies in the national public
service. In terms
of s 29, no branch or any of its committees shall
act autonomously against the employer, a term that is not defined but
which presumably
constitutes the state and any organ of state.
Section 2 of the statute establishes the PSA as a legal persona and a
body corporate
with perpetual succession, capable of suing and being
sued in its own name. There is nothing in the statute to suggest that
any
branch established by the board enjoys the same status, or has
the same legal capacity.
[10]
It is not in dispute that the applicant branches have not been
authorised by the PSA to initiate
these proceedings. To the extent
that the applicants rely for that authority on s 30 (1) of the
statute, which invests the management
of the affairs of the branch in
the management of the branch, this falls short of conferring legal
personality on a branch. Counsel
for the applicants further relied on
s 38 of the constitution in support of the contention that the
applicant branches enjoyed
locus stand out. That section, part of the
Bill of Rights, provides that persons listed in the section have the
right to approach
a competent court alleging that they write in the
Bill of Rights has been infringed or threatened. The list includes
anyone acting
in their own interest, anyone acting on behalf of
another person who cannot act in the own name, and anyone acting as a
member
of, or in the interest of, a group or class of persons. This
section does not assist the applicants firstly because as the courts
have held on a number of occasions, the principle of subsidiarity
precludes a party from relying directly on the constitution to
enforce a right where there is legislation giving effect to the
right. Alternatively, the relevant legislation may be challenged
on
the basis that it is not constitutional. Secondly, this is not the
case made out in the papers. The applicants do not contend
that the
PSA’s conduct has infringed any fundamental right protected by
the Bill of Rights. Insofar as counsel alluded during
argument to an
infringement of the right to freedom of association established and
protected both by s 23 of the Constitution and
s 4 of the LRA, that
right is not unqualified and as s 4 (2) of the LRA stipulates, the
right is one that is subject to the constitution
of the trade union
concerned.
[11]
In summary: the PSA is a legal entity which is capable of suing and
being sued. The branches
of the PSA are not in and of themselves
self-standing and discreet legal entities and they have no locus
standi
before the court. Of course, there is nothing to
prevent any one or more member of the PSA from approaching this court
in their
personal capacities under s 158 (1)(e) to pursue any
grievance related to any alleged non-compliance with the PSA’s
constitution.
But that is not the basis on which the present
application has been brought. Individual union members may not
hide behind
the structure of a union branch either to avoid the
prospect of an adverse order for costs, or for the purpose of giving
voice
to a ‘collective’, as the individual
representatives seek to do. The application stands to be dismissed.
[12]
Finally, in relation to costs, the court has a broad discretion in
terms of s 162 to make orders
for costs in accordance with the law
and fairness. I must necessarily take into account that the applicant
branches were forewarned
through correspondence addressed by its
attorneys that the PSA disputed their locus
standi
, and the
authority of those who held themselves out as their representatives
to institute these proceedings, and to incur legal
costs in doing so.
This warning was simply ignored. The same concerns were raised in the
answering affidavit, yet the applicant
branches persisted with the
application. In these circumstances it appears to me that the
requirements of the law and fairness
are best satisfied by an order
for costs, on the ordinary scale.
I make the following
order:
1.
The application is dismissed.
2.
The representatives of the applicant
branches, Messers Pule, Malebye and Madikane, are ordered to pay the
costs of the application
in their personal capacities, jointly and
severally, the one paying the other to be absolved.
André van Niekerk
Judge
APPEARANCES
For the applicants: Adv
MJ Molapo, instructed by Mafa Attorneys
For the first, second and
third respondents: Adv Z Ngwenya, instructed by Cliffe Dekker
Hofmeyr.