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[2020] ZALCJHB 61
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Democratic Municipal and Allied Workers Union of South Africa (DEMAWUSA) v Registrar of Labour Relations (J119/2020) [2020] ZALCJHB 61; [2020] 7 BLLR 681 (LC); 2020) 41 (ILJ) 1968 (LC) (10 March 2020)
The Labour Court of
South Africa,
(held at JOHANNESBURG)
Of interest to other
judges
case
No: J119/2020
In
the matter between:
Democratic
Municipal And Allied Workers Union of South Africa (DEMAWUSA)
Applicant
and
Registrar
of Labour Relations
Respondent
Heard
:
28 February 2020
Delivered
:
10 March 2020
Summary:
(Urgent – interim relief - application to
suspend de-registration of union pending outcome of appeal against
de-registration)
judgment
LAGRANGE
J
Introduction
[1]
This is an urgent application for interim
relief to reinstate the registration of the applicant union
(‘DEMAWUSA’) or
to suspend the cancellation of its
registration as published in a notice of 31 January 2020, pending the
determination of the union’s
appeal against its
de-registration. The registrar of Labour Relations (‘the
registrar’) opposes the application.
Background
[2]
On 22 January 2016, DEMAWUSA acquired the
status of a registered trade union in terms of
s 96
of the
Labour
Relations Act 66 of 1995
. It is an affiliate of the South African
Federation of Trade Unions (‘SAFTU’). DEMAWUSA claims to
currently have 12000
signed up members, many of whom are temporary
workers awaiting the determination of their status as permanent
employees. It is
not disputed that at the time of DEMAWUSA’s
de-registration about 3000 members were paying their union
subscriptions via
deductions from their salaries.
[3]
On
30 August 2019, DEMAWUSA was interdicted from embarking on a strike
against Johannesburg Metropolitan Bus Services (‘Metrobus’),
in respect of certain demands unless it conducted a secret ballot of
members in terms of section 19 of the Labour Relations Amendment
Act,
8 of 2018 19(2).
[1]
Section 19
of the Amendment Act states:
“
19.
(1) The
registrar
must, within 180 days of the
commencement of
this Act,
in
respect of registered
trade unions
and
employers’ organisations
that
do not provide for a recorded and secret ballot in their
constitutions—
(a)
consult with the national office
bearers of those unions or
employers’
organisations
on the most appropriate means to amend
the constitution to
comply with section 95;
and
(b)
issue a directive to those unions and
employers’ organisations
as
to the period within which the amendment to their constitution is to
be effected, in
compliance with the
procedures set out in the amended constitution.
(2)
Until
a
registered
trade union
or
employers’ organisation complies with the directive made in
terms of subsection (1)
(b)
and
the requirements of section 95(5)
(p)
and
(q)
of the
Act, the
trade union
or
employer organisation,
before engaging
in a
strike in
or
lockout
,
must conduct
a secret ballot of members.”
[4]
The
union claims to have conducted the secret ballot on 4 September 2019
pursuant to the Court order and Metrobus raised no objections
to the
conduct of the ballot, though it did apply for leave to appeal
against the judgment handed down on 30 August on other grounds
relating to the legitimacy of certain strike demands. Leave to appeal
was granted on 20 September 2019.
[2]
The Court also declined to stay the effect of its order pending the
outcome of the appeal. The appeal appears not to have been
pursued by
Metrobus.
[5]
The strike ultimately began on 16 September
2019 and by 23 September, the strikers had returned to work.
The path to
de-registration
On
17 September 2019, the day after a strike began, the registrar
promptly began inquiring about the authenticity of the ballot
in very
detailed terms, going so far as to request proof of the secret
ballot. The registrar sent a letter via email to the union,
asking it
to confirm within 4 days if the LRA had been complied with by holding
a secret ballot before embarking on the strike
action. Counsel for
the registrar could not say if such an inquiry is now standard
practice of the office of the registrar.
[6]
On 26 November 2019, the registrar sent the
general secretary a letter notifying the union that he was intending
to cancel the registration
after issuing a notice in terms of section
106 [2B]. The reason for the proposed cancellation was that the
registrar:
“…
was
of the opinion that that the union is not operating as envisaged by
the Act, and base it on the following:
·
the union had failed to comply with the
provisions of section 99 and 100 of the LRA and
·
the union had failed to comply with
guidelines for balloting regarding members having a secret ballot
before embarking on strike
action.”
The letter further stated
“As indicated in the notice, you are invited to make
representations within 60 days of the date
of the notice as to why
the registration of the organisation should not be cancelled, failing
which the name of the organisation
will be removed from the Register
of Trade Unions.”
[7]
S 106(2A) and (2B) provides that:
(2A)
The registrar may cancel the registration of a trade union or
employers’
organisation by removing its name from the
appropriate register if the registrar –
(a) is satisfied that the
trade union or employers’ organisation is not, or has ceased to
function as, a genuine trade union
or employers’ organisation,
as the case may be; or
(b)
has issued a written notice requiring the trade union or employers’
organisation to comply with sections 98, 99 and 100
within a period
of 60 days of the notice and the trade union or employers’
organisation has, despite the notice, not complied
with those
sections
.
(2B)
The registrar may not act in terms of subsection (2A) unless the
registrar
has published a notice in the Government Gazette at least
60 days prior to such action –
(a) giving notice of the
registrar’s intention to cancel the registration of the trade
union or employers’ organisation;
and
(b) inviting the trade
union or employers’ organisation or any other interested
parties to make written representations as
to why the registration
should not be cancelled.
(emphasis
added)
[8]
The registrar maintained that the union had
been obliged to provide the registrar with proof of the ballots in
terms of section
99 [c] and 100 [f] of the LRA and had failed to do
so despite explicit request to provide them and after drawing the
union’s
attention to these provisions. Sections 99 and 100
state:
99. Duty to keep
records.
In addition to the
records required by section 98, every registered trade union and
every registered employers' organisation must
keep-
(a)
a list of its members;
(b)
the attendance register, minutes or any other prescribed record
of
its meetings, in an original or reproduced form, for a period of
three years from the end of the financial year to which they
relate;
and
(c)
the ballot papers or any documentary or electronic record
of the
ballot for a period of three years from the date of every ballot.
100. Duty to provide
information to registrar. Every registered trade union and
every registered employers' organisation must
provide to the
registrar-
(a)
by 31 March each year, a statement, certified by the secretary
that
it accords with its records, showing the number of members as at 31
December of the previous year and any other related details
that may
be required by the registrar;
(b)
within 30 days of receipt of its auditor's report, a certified
copy
of that report and of the financial statements;
(c)
within 30 days of receipt of a written request by the registrar,
an
explanation of anything relating to the statement of membership, the
auditor's report or the financial statements;
(d)
within 30 days of any appointment or election of its national
office-bearers, the names and work addresses of those office-bearers,
even if their appointment or election did not result in any
changes
to its office-bearers; and
(e)
30 days before a new address for service of documents will
take
effect, notice of that change of address, and
(f)
the records referred to in section 99
.
(emphasis added)
[9]
The notice issued under section 106(2)(b)
was published the following day on 27 November 2019 and the union had
60 days to make
representations why its registration should not be
cancelled. The union failed to make representations in terms of the
notice.
The union claims it never received a copy of the gazetted
notice. Prior to this notice being issued the deputy general
secretary
of the union, Mr Aaron Sekulane, wrote to the registrar on
3 October 2019 confirming that the secret balloting requirements had
been complied with. On 8 October the registrar demanded the union
provide proof of this. On 31 October the union queried why it
was
necessary to provide proof of the ballot and what proof was required.
The registrar referred the union to section 100 (f) and
99(c) of the
LRA by way of clarification.
[10]
However, by 15 November 2019 Sekulane had
resigned and had not been in the union office from 15 November to 1
December 1019. There
appears to have been an administrative gap
between then and 17 January 2020 when a former unionist was able to
take up appointment
and to assist with head office administration.
[11]
The president of the union claims that he
became aware of the deregistration notice which was published on 31
January 2020 on account
of it being circulated on social media in
early February. The union convened a with the registrar on 10
February 2020, which the
union claims was cordial and at which it was
agreed with the registrar that the union would provide information
concerning the
ballot, while the union would seek urgent relief in
the Labour Court and the parties would commit themselves to a healthy
relationship.
The registrar admits the meeting taking place but
denies any agreement was reached and the meeting does not form part
of the recorded
deliberations of the registrar’s office. On 18
February, DEMAWUSA confirmed it was going to launch this application.
On 19
February the union submitted a report on the ballots and
advised the registrar that it had lodged the sealed ballot box at the
offices of the union’s attorney who would make them available
for inspection or arrange for them to be inspected at the registrar’s
office. The registrar’s attitude was that the report did not
comply with the original request for proof of the ballot and,
in any
event, a decision had been taken.
[12]
This application was filed on 21 February
2020. On 27 February, the union filed its application for leave
to appeal against
the deregistration at this court.
Evaluation
[13]
DEMAWUSA contends the application is
urgent, that it will suffer irreparable harm if interim relief is not
granted, it has no suitable
alternative remedy and the balance of
convenience favours it. It claims it has a
prima
facie
right to relief and a reasonable
prospect of success on appeal.
[14]
The registrar argues that; the LRA
prohibits interim relief being granted pending an appeal against a
decision to deregister a union,
the urgency is self-created, and that
the balance of convenience does not favour it. As to the harm the
union will suffer, financial
harm is insufficient and it can obtain
suitable alternative relief if it is successful on appeal.
Existence of a prima
facie right
[15]
The union argues that it has good prospects
of success on appeal and that having filed an application for leave
to appeal, it has
a
prima facie
right to have the decision suspended pending the outcome of the
appeal. Its contention that it has a good prospect of success on
appeal is based
inter alia
on an argument that the de-registration of the union as a remedial
measure is not commensurate with the alleged infringement of
sections
99(c) and 100(f) in respect of a single strike ballot and that the
registrar incorrectly interpreted the ‘guidelines’
on
balloting as statutory prescripts and, in principle, was not entitled
to rely on alleged non-compliance with those as a reason
for
de-registering the union.
[16]
The registrar argues firstly that since the
amendment of s111 of the LRA by s 17 of Act 6 of 2014, the
legislature made it clear
that the effect of de-registration could
not be suspended by virtue of an appeal being lodged. Moreover, the
union was plainly
in breach of the requirements of s 99(c) and 100(f)
of the LRA and the registrar was clearly entitled to de-register the
union
after due notice was given and the union had failed to comply
with the provision of the information requested despite being plainly
instructed to do so. The registrar further argues that “the
guidelines are an expression of the statutory requirement regarding
secret ballots” and DEMAWUSA ought to have complied with them.
[17]
In 2014, the following subsection was added
to s 111 of the LRA:
(5) An appeal in terms of
this section against a decision by the registrar in terms of section
106 does not suspend the operation
of the registrar’s decision.
[18]
The
registrar argued that this amendment indicated the clear intention of
the legislature that the de-registration of a union or
employers’
organisation could not be suspended by the lodging of an appeal
against the decision. Prior to this there had
been number of matters
before the Court where it had been argued by de-registered bodies
that their de-registered status had been
suspended because they had
lodged appeals against de-registration and the ordinary consequences
of filing an application for leave
to appeal or of a pending appeal
against a court judgment applied equally when appeals were lodged
against a de-registration decision.
[3]
The alternative interpretation of the amendment is preferable
in my view; that the amendment merely confirmed what
judgments of
this Court had already said. However, s 111(5) is not a bar for a
party to approach the Court for interim relief to
suspend the
operation of a de-registration decision. The section means that it is
now clear, the suspension must be justified and
it does not apply
automatically. On the face of it, the de-registration of the union on
account of an alleged failure to comply
with balloting provisions on
one occasion and non-provision of information connected therewith
despite express requests from the
registrar to furnish it, does seem
a somewhat drastic step to have taken and it is arguable that the
guidelines on balloting were
not intended to be binding
pre-requisites for the acceptable conduct of a secret ballot, failing
compliance with which it would
not qualify as such. It also appears
that even if the union had not complied timeously with the request to
provide proof of the
ballot, there is good reason to believe it is
able to rectify such defect based on the belated representations
made.
[19]
Accordingly, I am satisfied that the union
is not barred by s 111(5) from applying for interim relief pending an
appeal against
its de-registration and has an arguable case on
appeal.
Irreparable harm and
balance of convenience.
[20]
The
registrar rightly argues that financial harm is generally
insufficient ground for arguing irreparable harm. However, it is not
the financial harm as such which the union is seeking to prevent, but
to minimise the damage de-registration can do to its organisational
capacity to continue functioning as a union. The effect of
de-registration was recognised in
Commission
for Conciliation, Mediation & Arbitration v Registrar of Labour
Relations & others
[4]
:
“
It
cannot be denied that the decision of the registrar to de-register a
trade union has serious consequence on that union as an
entity and
its members. As an entity the decision of the registrar, is likely to
have a profound impact on its structures and its
operations including
the right to represent its members in various dispute resolution
processes.”
[5]
[21]
In other cases of applications for
suspending the effect of de-registration such as the one above, there
were weighty countervailing
considerations which affected the balance
of convenience, such as the need to protect union members from
maladministration of union
finances or from office bearers or
officials using the resources of the union for their own personal
interests. In this case, there
are no union members complaining of
ballot rigging or any evidence that it would not be in the interests
of DEMAWUSA members to
allow the union to continue to operate as
effectively as it might be able to pending the outcome of the appeal.
The basis for de-registration
in this instance does not rest on
general maladministration of union finances or chronically
dysfunctional organisational structures
arising from a failure to
elect office bearers or the like. The registrar’s own interest
in ensuring compliance with the
LRA will not be jeopardised if
interim relief is granted and the de-registration decision is
ultimately upheld. On the other hand,
given the union’s
dependence on a relatively small number or stop-orders to continue to
function in the interim, the value
of any ultimate success it might
obtain on appeal, will be worth little if it is not granted the
interim relief it seeks.
Urgency
[22]
The union argues that the matter is urgent
by virtue of its income from stop orders having been curtailed and
the loss of income
threatens its ability to conduct its activities.
The registrar retorts that financial need is insufficient ground for
urgent relief.
I have dealt above with the real significance of
financial constraint on organisational capacity.
[23]
The registrar also argues that the urgency
is self-induced because the union did nothing during the period that
was granted it in
terms of the notice to make representations why it
should not be de-registered. This argument carries more weight, but I
am also
mindful of the fact that an administrative vacuum developed
in the union during the crucial period when the letter of 26 November
2019 should have been addressed, and it does not appear to be for
lack of
bona fides
in
the DEMAWUSA’s dealings with the registrar that caused it not
to address the threat of de-registration timeously.
[24]
In the circumstances, I am satisfied
DEMAWUSA should be afforded the interim relief it seeks. There is no
reason not to make a cost
order either.
Order
[1]
The application is dealt with as one of
urgency and non-compliance with the Rules of the Labour Court dealing
with time periods
and service is condoned.
[2]
The decision of the Respondent, the
Registrar of Labour Relations, to cancel the registration of the
Applicant, the Democratic Municipal
and Allied Workers Union, with
effect from 30 January 2020 in terms of s 109(2) read with
s 106(2A)
of the
Labour Relations Act, 66 of 1995
, is suspended pending the
outcome of the applicant’s leave to appeal against the
decision.
[3]
The Respondent must pay the Applicants’
costs.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
A
Roskam of Haffegee Roskam Savage Attorneys
For
the Respondent:
O
Mooki, SC and M Rantho instructed by the State Attorney
[1]
Johannesburg
Metropolitan Bus Services (SOC) Ltd v Demawusa & others
(J 1799/19) dated 30 August 2019.
[2]
Johannesburg
Metropolitan Bus Services (SOC) Ltd v Demawusa & others
(J
1799/19) dated 20/09/2019.
[3]
E.g
See
Cape
Agri Employers' Organization v Registrar of Labour Relations
(2011)
32
ILJ
2952
(LC);
Lowveld
Allied & General Employers' Organization v Minister of Labour &
others
(2011) 32
ILJ
340
(LC);
General
Domestic & Professional Employers' Organisation v Registrar of
Labour Relations
(2011)
32
ILJ
316
(LC);
United
People's Union of SA v Registrar of Labour Relations
(2010)
31
ILJ
198
(LC), and
United
Peoples Union of South Africa ("UPUSA") v Commission for
Conciliation, Mediation and Arbitration and Others
(J984/10)
[2010] ZALC 150
(21 October 2010)
[4]
(2010)
31
ILJ
2886 (LC) at 2895
[5]
At
2895