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[2020] ZALCJHB 54
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Zwane and Others v Moyo and Others (J2414/19; J34/20) [2020] ZALCJHB 54 (26 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: J 2414/19 and J 34/20
In
the matter between:
PHUMZILE
ZWANE
First Applicant
NOKUSA
VERONICA
LUTHULI
Second Applicant
ZIKHALI
ELPHAS
LUTHULI
Third Applicant
and
JULIUS
MOYO
First Respondent
MBHEKISENI
MVUBU
Second Respondent
WILSON
MUTWANAMBA
Third Respondent
INQUBELAPHAMBILI
TRADE UNION
Fourth Respondent
Heard:
29 January 2020
Delivered:
26 February 2020
JUDGMENT
MAHOSI.J
Introduction
[1]
This is an application brought by the applicants for an order in the
following terms:
‘
Part A
1.
Condoning the first and second applicants non-compliance with Rule 8
of the Rules
of this Honourable Court relating to the form and the
service of this application on the first to further respondents in
terms
of section 158(1)(a)(i);
2.
The dismissals of the first, second and third applicants in terms of
the letters
issued on 23 December 2019 being annexures “FA16”,
“FA17”, and “FA18” to the founding affidavit
are set aside and the applicants are to continue performing their
functions as employees of the fourth respondent;
3.
Any suspension of the first, second and third applicants is set
aside.
4.
Costs of the application had to be paid by the respondents, the one
paying the
other to be absolved on the scale as between attorney and
client;
5.
Further and/or alternative relief.
Part
B
1.
The First to Fourth Respondents are to show cause on a date to be
determined by the
Registrar of this honourable Court as to why they
should not be found guilty of contempt of Court, for failing to
comply with the
Order granted by Ms Justice Nkutha-Nkotwana on 17
December 2019.
2.
That the first to fourth respondents may explain their conduct by way
of affidavit
on the date of hearing or before that date (although
this will not excuse them from being present at Court).
3.
In the absence of providing an explanation to the satisfaction of the
Court or
failing to appear in Court despite being properly served,
that:
3.1
The first to fourth respondents be found guilty of contempt for
failing to comply
with the order of the Court.
3.2
the first to third respondents be incarcerated for a period which is
specified by this Honourable
Court, and
3.3
the first to fourth respondents be each fined in the amount of R50
000.00 (Fifty Thousand
Rands) or an amount the Court deems
appropriate.
4.
Costs of the application are to paid by the respondents, the one
paying the other
to be absolved on the scale as between attorney and
client,
5.
Further and/or alternative relief.’
[2]
This dispute first served before this Court on 17 December 2019. On
this occasion,
Judge Gush, made the following order:
‘
1.
The matter is postponed
sine die
to be set down with the
rescission application in case number J43/20;
2.
The rescission application to be enrolled as a matter of urgency’
[3]
Resultantly, before this Court are the consolidated disputes under
J2414/19 and J43/20
and I deal with them
infra
.
Background
[4]
At the heart of this dispute is the life and soul of the fourth
respondent, Inqubelaphambili
Trade Union (ITU), a registered trade
union with its head office in Johannesburg. The first
applicant Ms Phumzile Zwane
(Ms Zwane) is employed as an office
administrator, the second applicant, Ms Nokusa Veronica Luthuli (Ms
Luthuli) is employed as
a receptionist and the third respondent, Mr
Zikhali Elphas Luthuli (Mr Luthuli) is employed as a union official.
The first, second
and third appicants are collectively herein
referred to as “the applicants”. Ms Luthuli is married to
Mr Luthuli and
Ms Zwane is their daughter.
[5]
The first respondent is Mr Julius Moyo (Mr Moyo) who is the General
Secretary of the
ITU. The second respondent is Mr Mbhekiseni Mvubu
(Mr Mvubu) who is a member of the National Executive Committee (NEC)
of ITU.
The third respondent is Mr Wilson Mutwanamba (Mr Mutwanamba)
who is also a member of the ITU. The first, second and third
respondents
are collectively herein referred to as “the
respondents”. Although there are no qualms regarding the
positions of the
latter respondents, that of Mr Moyo is disputed by
the applicants.
[6]
The respondents accuse the applicants of controlling the ITU’s
finances and
running the affairs of the union for the benefit of
their family and question their authority to be signatories of ITU’s
bank account.
[7]
The leadership of ITU is vested in the National Executive Committee
(NEC) which consists
of the President, Vice President, General
Secretary, Treasurer and six Additional Members.
[1]
The constitution of the ITU provides
inter
alia
,
as follows:
‘
9. MEETINGS
(1)
National Congress
(a)
The supreme governing body of trade union shall be the National
Congress, which shall consist
of the National Executive Committee and
at least 66.7% of the union members entitled to vote.
(b)
The national congress shall be convened every calendar year. Provided
that the National
Executive Committee may decide to convene the
national congress for a particular year within a six-month period
after that year.
None of its convocation shall be communicated by the
general secretary to the members at least two months before it is
held.
(c)
Resolutions from members shall be sent to the general secretary and
shall reach his/her
office not later than 2 weeks prior to the
National Congress. Copies of the resolutions and of the National
agenda shall be distributed
to all members by General Secretary not
less than 2 days prior to the National Congress.
…’
(2)
National Executive Committee
(a)
The National Executive Committee shall ordinarily meet at least once
every 3 months on a
date to be fixed by the President. Special
meetings of the National Executive shall be called by the President
whenever he/she
deems it advisable or upon a requisition signed by
not less than five (5) members of the National Executive Committee,
in which
event the meeting shall be called within 14 days of receipt
of the requisition by the President.
…
(c)
The quorum for meetings of the National Executive Committee shall be
60% of members. If
within 60 minutes of the time fixed for any
meeting a quorum is not present, the meting shall stand adjourned to
the same day in
the week following (and if that day is a public
holiday then to the next succeeding working day) at the same time and
place, and
at such adjourned meeting the members present shall be
given to members who were absent from the first meeting.
…’
[8]
The tumultuous relationship between the parties came to a head on 15
November 2019,
when the respondents served the applicants with
letters of suspension and disciplinary charges were levelled against
them. They
were arraigned before a disciplinary enquiry which was set
to proceed on 17, 18 and 19 December 2019 after preliminary issues
which
they had raised were rejected by the chairperson of the
inquiry. Aggrieved by this, the applicants approached this Court on
an
urgent basis and the matter served before Nkutha-Nkontwana, J who
issued the following order on 17 December 2019:
‘
1.
The provisions of the rules relating to times and manner of service
referred to therein
are dispensed with and the matter is dealt with
as one of urgency in terms of Rule 8 of the rules of this Court.
2.
The disciplinary hearing set to commence as against the first, second
and third
respondent applicants on 17, 18 and 19 December 2019 is
stayed in before the respondent may only proceed with a disciplinary
hearing
if, after a duly constituted National Congress is held and a
new National Executive Committee of the fourth respondent is elected,
the decision to institute disciplinary proceedings as against any of
the applicants is ratified;
3.
Costs of the application had to be paid by the second and third
respondents,
no one paying the other to be absolved.’
[9]
It is not in dispute that in 2017, the then President of the ITU
passed away and the
Vice President and the General Secretary
resigned. As matters stand, there is no President and there is no
Vice President at the
ITU. Further it is not in dispute that Mr Moyo
has occupied the General Secretary position since 2017. However, the
applicants
challenge the legality of his assumption to this position.
[10]
Furthermore, although clause 9(2)(a) of the ITU constitution provides
that the NEC must meet every
three months, such has not taken place
since 2017 and no
National Congress has been
held since. In my view, the aforementioned background constitute the
lethal ingredients to the disputes
between the parties. The Court
will return to this
issue later on in the judgment.
The
dispute
[11]
As aforementioned, in essence, before this Court are three
applications. The first one is an application
brought by the
respondents in terms of which they seek an order to rescind the
orders granted by Nkutha-Nkontwana, J mentioned
above. The second one
is an application to declare the dismissal of the applicants unlawful
and to set same aside. The third is
the application to hold the
respondents in contempt of Court and issue fines against them or have
them committed to incarceration
for failure to comply with the order
of Nkutha-Nkontwana, J referred to above. All the applications are
dealt with
infra
.
Rescission
Application
[12]
This application is brought by the respondents seeking an order to
rescind the aforementioned order
of this Court granted by
Nkutha-Nkontwana, J.
[13]
The legislative framework for applications for rescission of court
orders is set out in section 165
of the Labour Relations Act
[2]
(LRA), which reads:
‘
165. Variation
and rescission of orders of Labour Court
The Labour Court, acting
of its own accord or on the application of any affected party may
vary or rescind a decision, judgment
or order –
(a)
erroneously sought or erroneously granted in the absence of any party
affected by that judgment
or order;
(b)
in which there is an ambiguity, or an obvious error or omission, but
only to the extent of that
ambiguity, error or omission; or
(c)
granted as a result of a mistake common to the parties to the
proceedings.’
[14]
This section should be read together with Rule 16A of the Labour
Court Rules,
which reads as follows:
‘
16A
(1)
The court may, in addition to any other powers it may have-
(a)
…
(b)
on application of any party affected, rescind any order or judgment
granted in the absence
of that party.
(2)
Any party desiring any relief under-
(a)
…
(b)
may within 15 days after acquiring knowledge of an order or judgment
granted in the absence of
that party apply on notice to all
interested parties to set aside the order or judgment and the court
may, upon good cause shown,
set aside the order or judgment on such
terms as it deems fit.’
[15]
In the current matter, the respondents aver that they are bringing
this application in terms of section
144 of the LRA. This is a
misguided approach as section 144 provides for the variation and
rescission of arbitration awards and
rulings. This is the first
hurdle that the respondents fail to clear. Even if the Court were
inclined to consider the application
on the application of common law
sufficient cause must be shown. This means that firstly, there must
be a reasonable explanation
for the default, prove that the
application is
bona fide
defence and that the prospects of
success are reasonable.
[16]
Whilst this is not an end in itself, the respondents argue that they
were not in wilful default when
the matter was heard for reason that
they were not properly served with the urgent application as the
papers they were served with
bore no case number.
[17]
Furthermore, the respondents submitted that they attended court
despite the defective service of the
application. However, they
allege that an official of this Court directed them to a courtroom
that was not hearing urgent matters
and further that an official of
this Court advised them that they should wait for the outcome of the
order although their matter
was not on the roll.
[18]
On the prospect of success, the respondents contend that they had on
all material times indicated their
intention to defend the matter and
that they participated fully in the disciplinary hearings and
indicated their desire to have
the matter resolved, save for the
cancellation of fourth respondent’s registration.
[19]
In opposing this application, the applicants submit that the
respondents have no
locus standi
to bring this application on
their personal capacity as they failed to attach the resolution
authorising them to do so. Further
that to the extent that they may
be able to act on behalf of the fourth respondent, no resolution has
been passed by the fourth
respondent to authorize them to do so.
[20]
It is the applicant’s further submission that the respondents’
reliance on defective service
is misplaced because on their own
version, they were aware that the matter was proceeding on 17
December 2019 and they were present
in court on that day.
Furthermore, the applicants submitted that despite being aware of the
court date, the respondents failed
to file a notice of intention to
oppose the application. This conduct, according to the applicants
evinces the respondent’s
disinterest in the matter and makes
their suggestion that they were in court even more implausible.
[21]
The courts have held that a judgment will be considered to be granted
erroneously if, at the time of
granting it, there existed facts which
the court had not been aware of and, had it been aware thereof, would
not have granted the
judgment.
[3]
[22]
In the current matter, the respondents have not made out a case for
the rescission of Nkutha-Nkontwana,
J for the following reasons.
Firstly, the respondents failed to show that they have authority to
bring this application in their
personal capacity or to act on behalf
of the fourth respondent. Secondly, even if they had authority to
bring this application,
the reliance on improper service is without
merit in that on their own version, they were aware of the
proceedings of 17 December
2019, hence they attended court. Further,
on the basis of the undisputed evidence that there was only one court
which sat on 17
December 2019 and the respondent’s failure to
provide the name of the official(s) of the court they interacted with
on 17
December 2019, the respondents’ submission that they were
directed to an incorrect court is improbable and stands to be
rejected.
[23]
Besides, there is no evidence that the respondents had an intention
to oppose the application of 17
December 2019 because as of that
date, they had not filed a notice to oppose and neither had they
filed their answering affidavits.
It follows then that the
respondents have no prospects of success in this application and the
application of 17 December 2019.
[24]
Thirdly and more importantly, the respondents failed to disclose any
facts which should Nkutha-Nkontwa,
J had been aware of, would have
been persuaded not to grant the order they seek to rescind.
[25]
In my view, the respondents have not shown that, had
Nkutha-Nkontwana, J been made aware of their defence
or presence in
court, it would have changed or persuaded her not to grant the order
that she did. Further, even if it were to be
accepted that she would
have, there was, in fact, no such defence because at the time, the
respondents had not opposed the application.
Additionally, in this
application, the respondents failed to set out facts to support their
assertion that they have reasonable
prospects of success.
[26]
There is nothing before this Court, in the papers and in argument,
which logically demonstrate existence
of events or situation, which
Nkutha-Nkontwana, J had been aware of, would have not granted the
order as she did. For these reasons,
this application falls to be
dismissed.
[27]
The Court will now deal with remaining applications brought by the
applicants.
Contempt
Application
[28]
Although this application is captured as Part B in the applicants’
papers, I propose to deal
with it here as it is integral to the order
sought in Part A, which is to set aside the dismissal of the
applicants. Herein the
applicants seek a
rule nisi,
calling
upon the respondents to show cause why they should not be held in
contempt of Court for failing to comply with the order
of
Nkutha-Nkontwana, J and committing them to imprisonment and or why a
fine of R50 000 should not be imposed on each of them.
The basis on
which the applicants seek this order is that the respondents have,
following the order of Nkutha-Nkontwana, J, proceeded
to issue the
applicants with letters of dismissal on 23 December 2019.
[29]
The requisites of contempt of court were reaffirmed by the Supreme
Court of Appeal (SCA) in
Compensation
Solutions (Pty) Ltd v Compensation Commissioner
[4]
as:
(a)
the existence of a court order; (b) service or notice thereof;
(c) non-compliance with the terms of the order; and (d) wilfulness
and
mala
fides
beyond
reasonable doubt.
[30]
In
Anglo
American Platinum Ltd and another v Association of Mineworkers and
Construction Union and Others
[5]
the
Court has held that:
‘
The
principles applicable in an application such as the present are
well- established. In
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)
,
the Supreme Court of Appeal observed that the civil process for a
contempt committal is a 'peculiar amalgam' since it is a civil
proceeding that invokes a criminal sanction or its threat. A litigant
seeking to enforce a court order has an obvious and manifest
interest
in securing compliance with the terms of that order but contempt
proceedings have at their heart the public interest in
the
enforcement of court orders (see para 8 of the judgment). The court
summarized the position as follows at para 42:
'To
sum up:
(a)
The civil contempt procedure is a
valuable and important mechanism for securing compliance with court
orders, and survives constitutional
scrutiny in the form of a motion
court application adapted to constitutional requirements.
(b)
The respondent in such proceedings is
not an "accused person", but is entitled to analogous
protections as are appropriate
to motion proceedings.
(c)
In particular, the applicant must
prove the requisites of contempt (the order; service or notice;
non-compliance; and willfulness
and
mala
fides
) beyond reasonable doubt.
(d)
But once the applicant has proved the
order, service or notice, and non-compliance, the respondent bears an
evidential burden in
relation to willfulness and
mala
fides
: Should the respondent fail to
advance evidence that establishes a reasonable doubt as to whether
non-compliance was willful and
mala
fide
, contempt will have been
established beyond reasonable doubt.
(e)
A
declarator
and other appropriate remedies remain available to a civil applicant
on proof on a balance of probabilities.'
[31]
In this matter, the existence of a court order is not in dispute. So
too is the fact that the respondents
are aware of that court order.
What is central for this Court to decide is whether the order granted
on 17 December 2019 interdicted
the respondents from dismissing the
applicants.
[32]
The applicants argue that the second and third respondents are not
the NEC of the ITU, and that in
fact, the NEC ceased to exist in 2017
as there has not been a National Congress and that there was no
quorum nor resolution authorising
the respondents to take
disciplinary steps against them. Further, they contend that the
respondents issued dismissal letters to
them in an effort to get rid
of them and to get their hands on the union’s finances.
[33]
I have to give effect to the order of Nkutha-Nkontwana, J read in
context with the order sought in
this instance and that is to declare
the respondents to be in contempt thereof. I have in the opening
paragraphs of this judgment,
set out the order of Nkutha-Nkontwana, J
and it is worth noting that the dismissal letters set out in great
detail the allegations
levelled against the applicants which led to
their summary dismissal. Chief amongst these are accusations of
defrauding the union,
bringing the union into disrepute and to near
deregistration.
[34]
It is correct that the order of Nkutha-Nkontwana, J interdicted the
impending disciplinary process
against the applicants. What is
important and cannot be ignored by this Court is the fact that
Nkutha-Nkontwana, J places a condition
on future conduct as follows:
‘
The disciplinary
hearing set to commence as against the first, second and third
respondent applicants on 17, 18 and 19 December
2019 is stayed in
before the respondent may only proceed with a disciplinary hearing
if, after a duly constituted National Congress
is held and a new
National Executive Committee of the fourth respondent is elected, the
decision to institute disciplinary proceedings
as against any of the
applicants is ratified;’
[35]
In deciding whether the respondents are in contempt of Court,
non-compliance with the terms of the
order and wilfulness and
mala
fides
on their part needs to be shown beyond reasonable doubt.
[36]
It is common cause that following the issuance of the Order, the
respondents proceeded to dismiss the
applicants. This is troubling
for a number of reasons. Firstly, the respondents were aware that
they are not a properly constituted
NEC, secondly, Nkutha-Nkontwana,
J directed that disciplinary proceedings against the applicants be
stayed pending the holding
of the National Congress where a new NEC
would be elected. It is common cause that currently the NEC is almost
non-existent; does
not even at least compose of the 60% quorum; There
is no President and no Vice President, no Treasurer and further, no
National
Congress has been held for a period of almost three years.
[37]
The disciplinary code and procedure of the ITU vests the NEC with the
authority ‘
to take appropriate disciplinary steps against
any worker’
. The power lies with the NEC which is not
properly constituted if not non-existent at the present moment. Then,
if the status of
the NEC is in such disarray, the question is, where
do the respondents assume power or authority to dismiss the
applicants?
[38]
In their defence, the respondents argue that the order of
Nkutha-Nkontwana, J is open ended and does
not have specifics as to
when the National Congress should be held. I find this argument
nonsensical and opportunistic. As members
of the ITU, logic would
demand that they be familiar with the prescripts of their union’s
constitution. In fact, this argument
evinces that the respondents are
well aware of what is required of them but elected to treat the order
of Nkutha-Nkontwana, J with
contemptuous disregard by proceeding to
issue the dismissal letters to the applicants.
[39]
The applicants sought a
rule nisi
, calling upon the
respondents to appear in Court and explain their actions. This is
common practice in this Court, however, sometimes
practical
considerations would require finality and in my view, it is desirable
to depart from the ordinary rule of practice to
issue a
rule nisi.
I take this view as the respondents, by their own admission, have
acted in contempt of Court. I find that the, first, second and
third
respondents to be in contempt of the Court Order of Nkutha-Nkontwana,
J.
[40]
What remains then is what the consequences will be for the
respondents’ actions and the Court
will deal with that in
summing up this judgment.
Application
to set aside the dismissal of the applicants
[41]
The applicants contend that the respondents had no
locus standi
to institute disciplinary proceedings against them based
inter
alia,
on the fact that the NEC is not properly constituted, that
should they follow the statutory procedures in dismissals, the
payment
of compensation would be from the accumulated financial
reserves of the union and that the conduct of the respondents is in
contravention
of the spirit and letter of the Court Order of
Nkutha-Nkontwana, J.
[42]
In the face of the undisputed fact that the power to take
disciplinary steps against employees lies
with the NEC, the paralysis
which the NEC is at present, dissipates the respondents from
dismissing the applicants. What remains
for the Court to decide is
whether, having found that there is no NEC, thus the absence of
authority to dismiss, what remains of
the dismissal of the
applicants.
[43]
The respondents are not the NEC. It follows that they do not have
authority to dismiss the applicants
and
in
doing so, they acted
ultra vires.
Therefore, their decision is invalid and thus a nullity. What remains
for determination now is what to make of the dismissal.
[44]
In
Steenkamp
and Others v Edcon Limited
[6]
the
Constitutional Court found that an order declaring the applicants’
dismissals invalid, will have the legal effect that
their dismissals
never took place.
‘
An
invalid dismissal is a nullity. In the eyes of the law an employee
whose dismissal is invalid has never been dismissed. If, in
the eyes
of the law, that employee has never been dismissed, that means the
employee remains in his or her position in the employ
of the
employer’.
[45]
This Court per Lagrange, J
Solidarity
and Others v South African Broadcasting Corporation
[7]
endorsed the principle that where the dismissal is found to be
unlawful, it has to be annulled.
It further held that ‘
‘
C
onsequently,
an order declaring the applicants’ dismissals invalid, will
have the legal effect that their dismissals never
took place and can
be accompanied by an order that the SABCC must allow them into their
workplaces for the purpose of performing
their duties. The
appropriate relief in this instance given that the claim rests on
unlawfulness is that the dismissals should
be nullified.’
[46]
A similar dispute played out in
Matatiele
Local Municipality v Shaik and Others
[8]
,
the applicant challenged her dismissal arguing that she was unfairly
subjected to a disciplinary hearing and that her dismissal
was void
as it was held outside the time limits prescribed in terms of clause
6.3 of the SALGBC disciplinary collective agreement.
The LAC accepted
the Labour Court’s finding that dismissal was invalid therefore
void. The Court opined:
‘
Should
an employee inform and persuade an arbitrator that his or her
dismissal is invalid and of no legal effect, it means that
the
employee has not been dismissed.’
Conclusion
[47]
This is how to best describe this matter. More so, its turbulent
history. The Court has noted that
in 2018, some members of the ITU
sent a complaint to the Registrar of Labour regarding the operations
of the ITU which included
inter alia, how the members of the
applicants’ family were running the union, how finances were
managed, infightings, acts
of intimidation and threats.
In a
reply the Registrar stated:
‘
There is a
disturbing situation where it seems that the NEC has been ‘captured’
by the Luthuli family. The above-mentioned
disturbing activities
taking place within the operation of the union are noted with great
concern by this office as they impact
negatively on the genuineness
of the trade union.’
[48]
It is not apparent why having had such strong views on the ITU’s
situation, has the Registrar
of Labour not taken steps to intervene
and exercise its constitutional powers in remedying the said
situation. The Court has taken
note that, apart from the three
applications which served before this Court and which were dealt with
supra
, there is another application which was to be heard by
the South Gauteng High Court on 21 January 2020, before this judgment
was
handed down. That also deals with the continued infighting within
the ITU involving the same parties, further is the case filed
with
SAPS, in which the respondents seek the arrest and detention of the
applicants for alleged acts of threats and intimidation.
[49]
There are also allegations that the applicants have dismissed and
suspended some employees of the union.
The Court was referred to CCMA
case referred by an employee of the ITU who was allegedly dismissed
by the applicants. This situation
should not be allowed to exist,
especially where the interests of the members who pay subscription
fees, face obvious threat. There
is no doubt that this union is run
in a manner far remote from the purpose and spirit of trade unions.
Furthermore, the fact that
the applicants are signatories of the ITU
bank account and that they are funding this litigation out of the ITU
funds is concerning.
[50]
The Court has left the sanction against the respondents for later in
the judgment the Court’s
decision is influenced by a holistic
consideration of the facts before Court. In the Court’s view,
all parties are not without
blame in this matter. However, the
respondents’ disregard of the Court Order of Nkutha-Nkotwana, J
cannot be ignored and
a fine in the amount of R 5000. 00 each,
against the respondents, wholly suspended for a period of 12 months
should serve as a
deterrent.
Costs
[51]
This Court has discretion in awarding costs, guided by the
requirements of law and fairness. There
is clear indication that it
is the union member’s monies that fund this litigation and
should the Court order costs, the
union members are the ones who
would suffer financially. For that reason, the requirements of law
and fairness dictate that there
should be no order as to costs.
[52]
In the circumstances, the following order is made.
Order
1.
The application to rescind the order granted by Nkutha-Nkontwana, J
on 17 December
2019 is dismissed.
2.
The first, second and third respondents are found to be in contempt
of the order
of by Nkutha-Nkontwana, J.
3.
The first, second and third respondents are fined an amount of R 5
000.00 each
for their failure to comply with the order of
Nkutha-Nkontwana J, which fines are wholly suspended for a period of
12 months.
4.
The dismissal of the applicants is declared invalid
.
5.
The applicants are barred from using the funds of the union ITU to
pay their
attorney’s costs.
6.
The applicants must within 15 days of this order, file an affidavit
confirming
that they have not used the union funds to pay for their
attorney’s costs.
7.
The Registrar of Labour is directed to investigate the affairs of the
ITU and
to report to this Court on affidavit what steps it intends
taking in dealing with the situation at the ITU, within 15 days of
the
date of this Order.
8.
The Registrar of the Labour Court is directed to furnish a copy of
this judgment
to the office of the Registrar of Labour.
9.
There is no order as to costs.
__________________
D.
Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate Lennox
Instructed
by: Cheadle
Thompson and Haysom Incorporated
For
Respondents: Mr Mvuyisi Mfebe- Union Official
[1]
Constitution of ITU, clause 10
[2]
Act
66 of 1995 as amended.
[3]
See:
Department
of Correctional Services v Baloyi
(2016) 37 ILJ 2852 (LC).
[4]
(2016) 37 ILJ 1625 (SCA) at para 15.
[5]
(2014) 35 ILJ 2832 (LC).
[6]
(2016)
ILJ 564 (CC) at para189
[7]
(2016) 37 ILJ 2888 (LC)
at
para 72.
[8]
(2017) 38 ILJ 2280 (LAC)
.