THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
Case No: J1000/2023
In the matter between:
RECKSON BALOYI First Applicant
JACKSON TISO Second Applicant
JIMMY RAMAANO Third Applicant
MEMBERS OF THE NEC Fourth to Tenth Applicant s
PROGRESSIVE ALLIED AND TRAVEL UNION Eleventh Applicant
and
LIVHUWANI TSHIFHESI First Respondent
SIMON NKOMO Second Respondent
THEMBANI WALUWALU Third Respondent
MILDRED MOLELE Fourth Respondent
REGISTRAR, DEPT OF EMPLOYMENT AND LABOUR Fifth Respondent
2
Heard: 16 April 2025
Delivered: 4 June 2025
Summary : Application to declare the applicants as the office bearers of the
union, and declare the National Congress held to be lawful. Application
dismissed.
JUDGMENT
DANIELS J
Introduction
[1] The applicants bring this application seeking final relief. They seek an
order confirming that their election, or appointment, as the national office
bearers was lawful, and that the National Congress held from 28 to 30 October
2022 was lawful. The application is opposed by the second to fourth
respondents.
[2] The Union has been stricken by internal conflict since at least the middle
of 2021, when the first respondent, the President , sought to dismiss the General
Secretary and the Vice General Secretary, the first and second applicants. The
General Secretary ignored the President’s efforts to dismiss him and instead
began convening meetings with members of the National Executive Council
(hereafter “the NEC”) who supported him - to the exclusion of the President , the
Vice President, and their supporters . Effectively, this created two leadership
structures within the Union. [3] For several years, these two factions have operated side by side, both
purporting to represent the leadership of the Union. This lamentable situation cannot be permitted to continue and requires a robust approach from this court.
3
Material facts
[4] On 3 August 2021, the President wrote a letter to the Registrar of Labour
Relations advising him, among other things, that the General Secretary faced allegations of serious misconduct, including the alleged rape of a staff member.
[5] On 6 September, the President wrote a letter to the General Secretary
informing him that , because there were serious allegations against him , he was
required to provide reasons why he should not be suspended. This included an
allegation that the General Secretary had raped a staff member and a further
allegation that he had agreed to a R10, 00 deduction from the Union’s members
funds, without a proper mandate to do so. The President believed that these funds were being used, illicitly, to benefit the General Secretary.
[6] A disciplinary hearing was held for the General Secretary on 15
September, chaired by a CCMA Commissioner, Mr Sipho Dlamini. The General Secretary did not attend the hearing and, on 6 October, he was found guilty of the charges against him. The chairperson recommended to the NEC that he be
dismissed.
[7] In the ruling, the chairperson advised the General Secretary that he was
entitled to appeal to the President, or refer a dispute to the Commission for Conciliation, Mediation and Arbitration (the “CCMA”). The General Secretary did
not appeal to the President, nor did he refer any dispute to the CCMA.
1
[8] On 8 October, the President informed the General Secretary that he had
been dismissed by the Union. Interestingly, the President did not, in the letter, indicate that the NEC approved the chairperson’s recommendation that he be
dismiss ed. Thereafter, so it appears, the General Secretary did not make any
referral to the CCMA.
1 Answering Affidavit, para 3.11, p. 82
4
[9] During October 2021, the second applicant, the Vice General Secretary,
engaged the first respondent, the President, on a suitable date to hold the next
NEC meeting. [10] The Vice General Secretary proposed to meet on 13 November. The
President rejected this and replied that the meeting sh ould be held on 27
November.
[11] During their engagement, the President reminded the Vice General
Secretary that clause 9.7.2 of the constitution states that the “ GS will consult
with the President to decide on a dates and agenda for the meetings [of the NEC] ”. The President also referred to clause 9.8.3 which states “ The President
must decide on a time and place [for NEC meetings] provided that the meeting must be held between ten (10) and fifteen (15) days thereafter ”.
2
[12] The General Secretary and the Vice General Secretary are officials3 who
also serve in the Union’s constitutional structures. They are appointed by the
second highest constitutional structure of the Union, the NEC ,4 which structure
is chaired by the President.5
[13] As the so-called “chief executive officer” of the Union,
6 the President is
the highest office bearer of the Union. The President is the head of the NEC.7
[14] The constitution gives the General Secretary no express powers to
determine dates for NEC meetings . The General Secretary must issue notices
of NEC meetings ,
8 and he must consult with the President on the dates for
meetings. The President, by contrast, has powers to determine the dates of
2 This clause relates to meetings adjourned because there was no quorum.
3 See clause 9.5 of the constitution
4 See clause 9.3.4 of the constitution
5 See clause s 9.7.3, 10.1.1 and 10.1.3 of the constitution
6 See clause 10.1.2 of the constitution
7 See clause 9.1 of the constitution
8 See clause 13.2.1 of the constitution
5
NEC meetings , and dates for meetings of the Central Executive Committee (at
least those meetings which had to be adjourned because of a lack of quorum ).9
[15] As the chief executive officer of the Union, and the individual who chair s
the NEC meetings, one might expect that the President must agree to the dates
for such meetings.
[16] Indeed, the President assumed that his agreement was required, and
informed the Vice General Secretary that the NEC meeting proposed for 13
November would not continue, and the meeting would instead be held on 27
November. The Vice General Secretary did not inform the President that the
meeting would proceed despite his wishes. In the circumstances, it cannot be
contended that the President was given notice of the meeting.10 There is no
indication that the Vice President was given notice either.
[17] Despite this, a NEC meeting was held on 13 November. The President
and the Vice President were both absent. The constitution required the
President to chair all meetings of the NEC, and in his absence such meetings
must be chaired by the Vice President.11 The meeting was chaired by an
additional NEC member nominated by the meeting. The meeting was attended
by General Secretary, whom the President had informed of his dismissal on 8
October.
[18] At the meeting, on 13 November, judging from the minutes at least ,
12 the
participants resolved to suspend the President and Vice President, pending an investigation.
9 See clauses 9.8.3 and 12.9.3 of the constitution
10 Clause 9.7.5 of the constitution states that no meeting of the NEC will be invalidated only
because a member of the NEC did not receive notice of the meeting. However, this does not
mean that notice of the meeting must not be given. Clause 9.7.4 states that the General
Secretary must notify the NEC members of the meeting not less than two weeks before the
meeting.
11 See clause 10.2.1 of the constitution
12 Note however that the minutes were not signed by the President (or the Vice President) as
required by clause 10.1.1 read with clause 10.2.1 of the constitution.
6
[19] In the days which followed the meeting of 13 November, the President
and Vice President issued notices of suspension to several additional members
of the NEC including Mr Jackson Tiso (the Vice General Secretary) and several
additional members of the NEC ; namely Mr Simon Sekhoacha, Mr Themba
Mbhele, Mr Elvis Zitha, Mr Sello Thulatshipi, Ms Cherrols George, and Mr
Vusumuzi Mpondo.
[20] Mr Tiso, the Vice General Secretary, was summoned to a disciplinary
hearing on 18 February 2022, which led to his dismissal on 8 March 2022. It
does not appear that the NEC approved the outcome.
[21] Despite the decision to suspend the President, it appears that he was not
charged in accordance with clause 10.5.1 of the constitution. Nor, it appears,
was any disciplinary hearing held in terms of clause 10.5.1.5 of the constitution.
[22] The constitution is silent on how the dates for the National Congress are
determined, however clause 9.6.2.13 of the constitution states that the NEC
shall decide all matters of procedure on which the constitution is silent .
[23] The applicants, state that during April 2022 the NEC decided to hold a
National Congress. No resolution or minutes of the NEC are attached to that effect.
[24] During April 2022, the Registrar of Labour Relations gave notice to the
Union of its intention to deregister it because of the leadership impasse .
Apparently
13 the first to fourth respondents approached this court and sought an
interdict in two parts. The first part sought an order preventing the Registrar
from deregistering the Union and the second part sought an order preventing
the first and second applicants from discharging their duties. This court,
apparently, granted the first part and required the respondents to enrol the second part but they have not done so.
13 The court was not provided with the court papers, the court order, or the case number.
7
[25] The first to fourth respondents also approached the High Court seeking
to interdict the National Congress. That application was struck from the roll for
lack of urgency.
[26] The NEC, at least the faction led by the General Secretary, convened a
meeting of the NEC on 19 August 2022
14 in which it was decided that the
National Congress would be convened on 28 – 30 October 2022.
[27] The National Congress proceeded from 28 – 30 October 2022. It
appears that the President and the Vice President did not attend despite the fact that they were entitled to do so (assuming that they were not lawfully
suspended, or dismissed) .
15 It is unclear if they were invited to attend, or
prevented from attending.
[28] The first to fourth respondents, in their answering affidavit, claim that the
National Congress was not lawfully convened. Among other things, they contend that:
28.1 The Congress agenda was not circulated to the regions as
required by clause 8.3.5.
16 This allegation is confirmed under oath by the
chairperson and secretary of the Cape Town region. In reply17 the
applicants state that all regions were informed of the dates for the Congress. However, i n relation to the allegation that the agenda was not
circulated, the applicants provide only a bald denial. T he applicants state
that the Union has six established regions but they concede that three
regions, though not formally established, were permitted to attend and
participate in the National Congress.
28.2 The respondents allege that the National Congress is entitled to
request, from the regions, reasonable proof of the size of the
14 Annexure RA1, letter from General Secretary to the Regions dated 26 August 2022, p 284
15 See clause 8.3.3 of the constitution
16 Answering Affidavit para 4.9.2, p 89
17 Replying Affidavit paras 54 – 60 pp 275 – 277
8
membership upon which the delegation is based. They suggest, but do
not expressly state, that the request was made and not complied with. In the circumstances, t his required no response from the applicants. In any
event, the applicants have provided a satisfactory response - that the
National Congress did not require such proof.
28.3 The respondents allege
18 that the nomination and election of the
third applicant and Mr Simon Sekhoacha was irregular because they should have been nominated by the respective region and there should
have been a branch resolution proposing their nomination. In reply,
19 the
applicants state that these individuals were nominated by their respective regions but they do not specifically deal with the allegation that a branch
resolution was required but not provided.
28.4 The respondents allege that the election of the first applicant as
General Secretary, at the National Congress, was irregular, because he must be appointed by the NEC, and not elected. The applicants replied
that the first applicant was not , in fact , elected at the National Congress.
28.5 The respondents allege that three individuals
20 were elected to the
NEC, at the National Congress, despite the fact that they did not qualify
to be elected, because they had not been in any Regional Executive
Committee for at least two years.21 In reply, the applicants concede that
these individuals were elected to the NEC and they did not meet the
requirements. It is therefore common cause that these three individuals
were elected to the NEC in contravention of the constitution.
28.6 The respondents allege that only one of the individuals who were
elected as additional member s of the NEC came from a region with at
18 Answering Affidavit para 4.14 p 91
19 Replying Affidavit para 61 – 63, p 277
20 Namely Mr James Nhlapo (Free State), Ms Doris Manganyi (Johannesburg), and Mr Muzi
Majola
21 See clause 8.3.8 of the constitution
9
least 500 members , as required by the constitution. The applicants deny
this, but concedes that three individuals22 came from regions which did
not have at l east 500 members. It is therefore common cause that these
individuals were elected in breach of the constitutional requirements.
[29] The faction headed by the President resolved to hold a separate National
Congress in February 2023. It is unclear whether this National Congress was
held or not. Legal principles
Importance of the constitution
[30] The Union, the fifth applicant, is a voluntary association, but it is also a
body with legal personality. The constitution sets out the Union's powers, as well as the powers of each of its structures and office bearers. It is trite that
where a trade union performs any act that deviates from , or is contrary to , its
constitution, that act is ultra vires (beyond its powers) and null and void.
23
Disputes of fact
[31] It is trite that, in applications for final relief, the court will grant such relief
only where the facts alleged, and admitted, by the respondent justify the order.24
[32] Where material disputes of fact arise in motion proceedings, and final
relief is sought , our courts have consistently appl ied the principles in Plascon -
22 Namely Ms. Cherrols George, Mr James Nhlapo and Mr Themba Mbele.
23 See AFGRI Animal Feeds v NUMSA and others 2024 (5) SA 576 (CC) at para 45
24 Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235
where the court held: “ It seems to me that where there is a dispute as to the facts a final
interdict should only be granted in notice of motion proceedings if the facts as stated by the
respondents together with the admitted facts in the applicant's affidavits justify such an order . I
cannot agree with the learned Judge's view that he was confined to such facts as
were substantially common cause. I shall accordingly only consider the facts alleged or
admitted by the respondent. Where it is clear that facts, though not formally admitted cannot be
denied, they must be regarded as admitted. ”
10
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd25 (hereafter the “ Plascon -
Evans rule”) as clarified in Wightman t/a JW Construction v Headfour (Pty) Ltd
and Another26 where Heher JA held:
“[12] Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who seeks final
relief on motion must, in the event of conflict, accept the version set up
by his opponent unless the latter's allegations are, in the opinion of
the court, not such as to raise a real, genuine or bona fide dispute of fact
or are so far -fetched or clearly untenable that the court is justified in
rejecting them merely on the papers : Plascon -Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C. See also
the analysis by Davis J in Ripoll- Dausa v Middleton NO and Others 2005
(3) SA 141 (C) at 151A - 153C * with which I respectfully agree. (I do
not overlook that a reference to evidence in circumstances discussed in
the authorities may be appropriate.)
[13] A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said
to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But
even that may not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis is laid for disputing the
veracity or accuracy of the averment. When the facts averred are such
that the disputing party must necessarily possess knowledge of them and
be able to provide an answer (or countervailing evidence) if they be not
true or accurate but, instead of doing so, rests his case on a bare or
ambiguous denial the court will generally have difficulty in finding that the
test is satisfied . I say 'generally' because factual averments seldom stand
apart from a broader matrix of circumstances all of which needs to be
25 1984 (3) SA 623 (A) at 634E - 635C
26 2008 (3) SA 371 (SCA)
11
borne in mind when arriving at a decision. A litigant may not necessarily
recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an
answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter .”
(own emphasis)
Interpretation of the constitution
[33] As previously mentioned, a trade union constitution is a contract between
the members of the union setting out the terms on which they agree to associate. The interpretation of the terms of a union constitution is therefore an
exercise of contractual interpretation.
27
[34] Whenever legal documents, including contracts, are to be interpreted,
courts are required to adopt the interpretative triad of language, context and purpose. This was explained by Wallis JA in Natal Joint Municipal Pension Fund v Endumeni Municipality
28 as follows:
“[18] The present state of the law can be expressed as follows:
Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision
or provisions in the light of the document as a whole and the
27 General Industries Workers Union of SA v Maseko & others (2015) 36 ILJ 2874 (LC) at para
23
28 2012 (4) SA 593 (SCA)
12
circumstances attendant upon its coming into existence. Whatever the
nature of the document, consideration must be given to the language
used in the light of the ordinary rules of grammar and syntax; the context
in which the provision appears; the apparent purpose to which it is
directed and the material known to those responsible for its production.
Where more than one meaning is possible each possibility must be
weighed in the light of all these factors . The process is objective, not
subjective. A sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent purpose
of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and
legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The 'inevitable point of departure is
the language of the provision itself', read in context and having regard to
the purpose of the provision and the background to the preparation and
production of the document .” (own emphasis)
Analysis
[35] First, the application must fail for the simple reason that the applicant
fails to make the allegation in its founding papers that it has complied with all the requirements, per the constitution, for the holding of the National Congress. It also fails to address each and every requirement individually. It is trite that the applicant must make out its case in its founding papers.
29
[36] The purpose of the Union, and the constitution, is comprehensively set
out in clause 3, the “Aims and Objectives”. This includes the provision of liaison
29 See Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others
(1105/2019) [2021] ZASCA 13; [2021] 2 All SA 1 (SCA) (9 February 2021) at para [95]: “In
motion proceedings, the affidavits constitute both the pleadings and the evidence. The issues
and averments in support of a party’s case should appear clearly therefrom. They serve, not just
to define the issues between the parties, but also to place the essential evidence before the
court. An applicant must therefore raise in the founding affidavit the issues as well as the
evidence upon which it relies to discharge the onus of proof resting on it .”
13
between members and the NEC, the settling of disputes affecting members as
individuals or as an organised group, the promotion of consensus to ensure the implementation of the objectives and policies of the Union, the protection of the common interests and rights of the members in general. It is against this background that the contentious clauses in the constitution must be considered. [37] It is plain that the language, syntax and grammar used in the constitution
are not the model of clarity. To reveal the meaning, the text must be given its
ordinary grammatical meaning unless this would lead to an absurdity.
30 The
more precise provision must be given preference to a general or widely
expressed provision.31 The sensible must trump the absurd.32 The purpose of
the provision, understood in context ,33 must prevail. Taking note of these
factors , and using the interpretative triad of language, context, and purpose, I
arrive at the following conclusions:
37.1 First, I find that the 13 November meeting was unlawful , and its
resolutions invalid. The meeting failed to meet the requirements of the
constitution on many different levels. First ly, notice was not given to the
President (and most likely not given to the Vice President either ).
Second ly, the meeting proceeded on a date not agreed to by the
President. Given that the constitution is unclear as to how dates for the
NEC are determined in the event of disagreement , it is necessary to
adopt a purposive and contextual approach to interpretation of the constitution. In my view, in the event of disagreements it is the President who must decide on the dates for such meetings. The President must,
30 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) at para 28
31 This approach is adopted based on the maxim “generalia specialibus non derogant”. General
provisions do not derogate from the special ones. See Christie & Bradfield Christie's Law of
Contract in South Africa 8 ed (LexisNexis, Johannesburg 2022) at p276 – 7 which states: 'This
maxim has regularly been used in interpreting statutes, has been used in interpreting the
articles of association of a company, and given that there is no difference in approach to
interpreting legal documents, it could be used in interpreting contract.'
32 See Natal Joint Municipal Pension Fund v Endumeni Municipality cited in fn. 28
33 The context may be determined by considering other subsections, sections or the chapter in
which the keyword, provision or expression to be interpreted is located. Context may also be
determined from the instrument as a whole. See AmaBhungane Centre for Investigative
Journalism NPC and Another v President of the Republic of South Africa 2023 (2) SA 1
(CC) (2023 (5) BCLR 499; [2022] ZACC 31) para 36
14
after all, chair such meetings and he is the chief executive officer. He is,
as is apparent from the constitution as a whole, senior to the General Secretary. Furthermore, the only provision in the constitution which
expressly provides for the selection of dates for the NEC (albeit in the context of adjourned meetings) gives such power to the President. This interpretation is in keeping with the purpose of the constitution, to make the President the overall guardian of the constitution and its structures.
37.2 Second, I find that only minutes confirmed by subsequent
meetings of the NEC, and signed by the President, may be considered formal minutes. This interpretation accords with the principle that that the
President is the overall guardian of the constitution, and its structures.
37.1 Third, I find that the National Congress held between 28 and 30
October 2022 was unlawful and its resolutions are invalid. The dates for
the Congress was determined by the NEC faction headed by the General
Secretary, to the exclusion of the President. More importantly, t he
applicant provided only a bare denial of the allegation that the agenda for
the National Congress was not circulated in accordance with the
constitution. It is trite that a bare denial will not suffice to give rise to a dispute of fact where the facts averred fall within the knowledge of the denying party and no basis is laid for disputing the veracity of the averment. This factual dispute must therefore be determined on the
respondents ’ version. It is, in any event, common cause that at least six
of the individuals elected to the NEC were elected in violation of the constitution. It is also common cause that the eleventh applicant
permitted several regions to participate at the Congress though they
were not formally constituted, or recognised, as regions.
[38] This court has not been asked to determine whether the dismissal of the
first and second applicant s, during 2021 and 2022, was lawful. I therefore
render no finding in that regard.
34 This court has also not been asked to
34 However, in passing, I note that the respondents do not suggest that any decision had been
taken by the NEC to confirm their dismissal, in accordance clause 9.6.2.3 of the constitution.
15
determine if the dismissal of the first and second respondents was lawful35 and I
render no finding in that regard either.
[39] The applicants pleaded for the court to assist it to resolve the leadership
impasse. The applicants submitted that the court may even order the parties to
hold another Congress. Unfortunately, this lies beyond the powers of the court.
It is not the function of this court to provide advice to the parties. That said, it
seems obvious to me that the constitution cries out for a professional audit to
consider all the gaps and inconsistencies in its provisions. Furthermore, the
parties might consider appointing a seasoned mediator to assist them to find
each other .
Conclusion
[40] For the reasons set out above, application is dismissed. There is no
order as to costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
Appearances
For the Applicant s:
Adv Fundile Sangoni Malcolm Lyons & Brevik Inc
For the Respondent s:
Adv T Snyders, Adv Chares Baloyi, Adv Maponya
Mangadi Masego Attorneys
35 However, I note, in passing, that the applicants do not allege that the President and Vice
President were charged and called to a hearing in accordance with clause 10.5.1.5 of the
constitution. In addition, as mentioned, a properly constituted meeting of the NEC must first
resolve to charge and discipline the office bearers, in accordance with clause 10.5.1.