THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025 - 087858
In the matter between:
IVAN GIVEN RAMOGALE Applicant
and
NATIONAL EDUCATION , HEALTH AND
ALLIED WORKERS UNION (NEHAWU) First Respondent
NEHAWU PROVINCIAL
EXECUTIVE COMMITTEE (PEC) Second Respondent
SELLO MAFELA, PROVINCIAL CHAIRPERSON Third Respondent
MZIKAYISE TSHONTSHI , PROVINCIAL SECRETARY Fourth Respondent
ZOLA ZAPHETHA , GENERAL SECRETARY Fifth Respondent
Heard : 13 June 2025
Delivered : 19 June 2025
Summary : Application to declare conduct by the respondents to be unlawful ,
including the alleged unlawful suspension of the applicant .
JUDGMENT
DANIELS J
Introduction
[1] This is a dispute between the applicant, a member and regional office
bearer, of the National Education, Health and Allied Workers Union
(“NEHAWU ” or “the Union ”) concerning the alleged unlawful conduct of
the respondents arising from their allegedly incorrect interpretation of the
constitution. The court’s jurisdiction is engaged through the provisions of
section 158(1)(e) of the Labour Relations Act No. 66 of 1995 as
amended.
[2] The applicant seek s an order : (1) declaring his suspension to be unlawful
and invalid, (2) suspending his disciplinary hearing pending a review
application (to be filed) challenging the unlawfulness of his suspension
and the disciplinary charge s, and (3) interdicting the Gauteng Provincial
Executive Committee (the “PEC”) from disband ing the Tshwane Regional
Executive Commi ttee (the “REC”) . Interestingly, at this stage, the
applicant does not seek an order declaring that the charges against him
are unlawful and invalid.
Urgency
[3] It is clear from the authorities1 that any party seeking urgent relief must
sufficiently, and in detail, set out the circumstances which render the
1 Jiba v Minister: Department of Justice and Constitutional Development and Other (2010) 31
ILJ 112 (LC) at para 18; East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others [2012] JOL 28244 (GSJ) at para 6 ; Dynamic Sisters Trading (Pty) Limited and
Another v Nedbank Limited (081473/2023) [2023] ZAGPPHC 709 (21 August 2023) at para 18;
Public Servants Association of SA and Another v Minister of Home Affairs and Others [2016]
matter urgent, and the reasons why substantial redress cannot be
obtained at a hearing in due course. The degree to which the ordinary
rules should be relaxed is dependent on the degree of urgency, and th e
applicant is not entitled to rely on urgency that is self -created. An
applicant must approach the court with the necessary haste, or as soon
as the cause of discontentment arises .2 The more immediate the reaction
by the litigant , to remedy the situation by way of instituting litigation, the
better for establishing urgency. Equally importan t is the interests of the
respondent party and any prejudice it may suffer.
[4] The respondents do not contend that the application is not urgent at all.
They contend that the application is not so urgent that it must be heard
immediately that it cannot be heard at some other date.
[5] On the facts, I accept that the application is urgent, and must be resolved
without delay. The applicant acted expeditiously as soon as he was
suspended, and charged. On the applicant’s version, his suspension and
the disciplinary charges impact on his ability to stand for election, and to
canvass for a leadership position, at the upcoming Provincial Congress.
On this version, the applicant canno t achieve substantial redress in due
course.
Material facts
[6] The applicant , the regional chairperson of the Tshwane Region , intends
contesting the position of provincial chairperson at the Provincial Elective
Congress, which, at the time the application was launched, was
scheduled for 17 June 2025. The applicant contends that his suspension,
and the disciplinary charges , are a mechanism to purge him from
leadership race and pave the way for the current provincial chairperson
to maintain his position.
ZALCJHB 439 at paras 12 to 18 ; Moyane v Ramaphosa and Others [2019] 1 All SA 718 (GP) at
para 33
2 Association of Mineworkers & Construction Union & others v Northam Platinum Ltd & another
(2016) 37 ILJ 2840 (LC) at para 26
~
[7] The applicant maintains that the PEC is conducting a similar campaign
against other regional office bearers in the Tshwane Region , and the
Ekurhuleni region3 - which has close ties to the Tshwane region al
leadership .
[8] On 20 March 2025, the applicant was app ointed to serve on the
Provincial Executive Task Team to investigate whether certain regional
office bearers had committed misconduct by breaching policies of
NEHAWU. In particular, the Task Team was required to investigate
whether the office bearers had b rought the name of the Union into
disrepute by posting material and comments, about internal dissent and
factionalism, on (public ) social media platforms. The applicant was
unhappy with the manner in which the Task Team was established, its
terms of refere nce, the manner it operated, and the various other issues.
He addressed a letter of complaint to the national office bearers on 9
April 2025. In the letter, the applicant contended, among other things,
that the regional office bearers were being victimized for breaching a
social media policy when no such policy existed . The applicant indicated
that he had requested a copy of the policy but this was never provided to
him.
[9] The PEC placed the applicant on precautionary suspension on 1 June
2025. The applican t did not attach the notice of suspension to his
founding papers. Instead, he attache d a letter issued by the PEC to
another office bearer, in which that individual was granted an opportunity
to make representations prior to his suspension. The applicant c omplains
that he was granted no opportunity to make representations and this is
an indication that he is being targeted, and victimized. The applicant
does not, however, refer to any provision of the constitution which
requires the Union to allow him to ma ke representations.
3 The regional secretary for Ekurhuleni, Mr Sibusiso Valashiya, who intends contesting for the
position of provincial secretary at the Provincial Congress, brought a similar application, which
was heard by this court, on an urgent basis, on 22 May 2025. On 13 June 2025, the interim
order, which had been issued on 22 May, was varied when the court lifted the interdict against
the disciplinary hearing against Mr Valashiya.
~~
[10] The applicant attaches, to his founding affidavit, the minutes of a meeting
of the Central Executive Committee (“CEC”) held on 11 to 13 December
2022. Th ose minutes reflect, in closing statements made by the
President of NEHAWU , that t he CEC adopted as its political message
“Unity, Discipline and Cohesion”. In addition, the CEC directed that all of
the Union’s structures must cease from discussing “ leadership egos,
squabbles, and gossip as they are detrimental to organisational unity an d
cohesion as espoused by the NEHAWU constitution and Strategic Policy
Framework of the national union .” The CEC supported the task of the
national office bearers in ensuring unity and cohesion in the structures.
[11] The PEC notified the applicant of the dis ciplinary charges against him on
5 June 2025. The charges included an allegation that, on 10 May 2025,
the applicant posted divisive comments on Facebook in which he stated
that the regional leadership was being victimized by the provincial
leadership whil e the national office bearers remained silent and “ enjoyed
spectating ”. The PEC alleged that the applicant posted comments of a
similar nature on 3 June 2025. The PEC alleged that the applicant
associated himself with a campaign , conducted on social media , in
preparation for the Provincial Congress when such campaigning was not
permitted. The PEC alleged that the applicant led a march of members to
the head office, in protest against the PEC. The PEC alleged that the
applicant had used social media platform s to raise his grievances with
the provincial leadership, and had implied the PEC was autocratic. The
charges also mention ed NEHAWU’s policies on leadership orientation,
and communication. The charges makes mention of the directive issued
by the national o ffice bearers on 25 April 2025. However, importantly, the
charge sheet makes no mention of a “social media policy”.
[12] At the time he launched the application, on 9 June, the applicant’s
disciplinary hearing was scheduled for 13 June. However, on 11 June,
the respondents agreed to postpone the disciplinary hearing until it could
secure an appropriate chairperson.
[13] Though he seeks no order in relation to the disciplinary charges, the
applicant suggests that the charges are unlawful because he may only
be dis ciplined by the Regional Executive Committee. This contention is
based on his understanding of clause 62(1) of the Union’s constitution
which provides:
“(1) Where a branch, regional or provincial office bearer fails to
comply with any terms of this const itution, or acts in such a manner
that is detrimental to the interests of the union and its members, or
who is alleged to have committed misconduct may be disciplined by
the BEC, REC, PEC, NEC, CEC as the case may b e.”
[14] In their answering affidavit, respo ndents make the following allegations:
14.1 The disciplinary hearing has been postponed (to a date to be fixed in
due course) to allow the PEC to find a suitable chairperson. The
Provincial Congress has also been postponed, though no date was
provided in the a ffidavit .4
14.2 Clause 62, read with clause 63(2)(a), of the constitution empowers
the PEC to charge a member , or a regional office bearer , for alleged
misconduct.
14.3 Clause 41(1)(f) of the constitution grants to the PEC the powers to :
“exercise the manageme nt of the affairs of the union between the
meetings of the PC within the provincial sphere and has the
necessary powers usual for such an executive body to give effect
to the aims of and objectives of the union, including the powers to
do all things as it considers are in the interest of the union and
which are not in conflict with the decisions of and policy of the NC,
4 At the hearing, upon enqui ry from the court, the respondents’ counsel advised that the
Provincial Congress had been postponed to 29 July 2025. The applicants did not contest this.
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CEC, NEC and PC, nor inconsistent with the provisions of the
Constitution ”.
14.4 Clause 63(1) does not entitle a member, shop steward , or offic e
bearer to make representations before being placed on precautionary
suspension.
14.5 Under clause 63(1) the precautionary suspension of the applicant will
lapse after thirty days and may only be extended by the chairperson
of the disciplinary hearing. Accor dingly, absent any extension, the
suspension of the applicant will lapse on 1 July 2025.
14.6 Clause 63(4)(f) prohibits the applicant from standing for election if
disciplinary proceedings are pending against him. However,
suspension, on its own, does not pr event the applicant from standing
for election. As a member in good standing, the applicant is permitted
to attend the Provincial Congress, and participate therein, provided
he is a delegate.
14.7 The PEC has not disbanded the REC of the Tshwane Region but, o n
9 June, it resolved to dissolve the regional office bearers . The
attached PEC resolution relates specifically to the regional office
bearers.
14.8 The Union has both a Communication Policy , as well as a Policy on
Leadership, Orientation, Conduct and Electio ns. These documents,
attached to the answering affidavit, deal inter alia with the conduct
expected from union leaders. Among other things, the policies
discourage members and leaders from secretly lobbying and
canvassing for positions, and from mudslingin g. The policies also
require leaders to ensure that organisational matters are kept in the
strictest of confidence, to instil respect in the organisation.
14.9 The PEC met on 29 and 30 September 2023, and resolved that
members must desist from using social med ia to discuss internal
union issues . At that meeting, solely for the sake of unity, the PEC
resolved not to investigate or discipline the applicant for his use of
social media.
Legal principles
[15] A trade union constitution is a contract between the member s of the
union setting out the terms on which they associate. Accordingly, the
interpretation of the terms of a union constitution is an exercise of
contractual interpretation.5
[16] The leading case on the interpretation of legislation, as well as contracts ,
is Natal Joint Municipal Pension Fund v Endumeni Municipality .6 The
judgment neatly summarized the contemporary approach to interpreting
documents as follows:
“The present state of the law can be expressed as follows.
Interpretation is the process of a ttributing 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 cir cumstances 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 pu rpose 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 me aning is to be preferred to
5 General Industries Workers Union of SA v Maseko & others (2015) 36 ILJ 2874 (LC) at para
23
6 2012 ( 4) SA 593 (SCA)
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 busi nesslike 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 m ade.” (Own emphasis)
[17] In Mcoyi and Others v Inkatha Freedom Party7 it was held that:
“Where certain provisions in a constitution are fairly open to two
constructions, the one having the more convenient result will be
followed .”
[18] In Garment Workers Union v De Vries and others8 the applicable
principles were described as:
“In considering questions concerning the administration of a lay
society governed by rules, it seems to me that a Court must look
at the matter broadly and benevolently and not in a carp ing,
critical narrow way. A Court should not lay down a standard of
observance that would make it always unnecessarily difficult – and
sometimes impossible to carry out its own constitution. I think that
one should approach such enquiries as the present in a
reasonable common -sense way, and not in the fault finding spirit
that would seek to exact the uttermost farthing of meticulous
compliance with every trifling detail, however unimportant and
unnecessary, of the constitution. If such a narrow and close
attention to the rules of the constitution are demanded, a very
large number of administrative acts done by lay bodies could be
upset by the Courts. Such a state of affairs would be in the highest
degree calamitous – for every disappointed member would be
7 2011 (4) SA 298 (KZP)
8 1949 (1) SA 1110 (W)
encouraged to drag his society into Court for every trifling failure
to observe the exact letter of every regulation .” (Own emphasis)
[19] Accordingly, where provisions in a constitution are open to two
constructions, an interpretation which would throw the asso ciation into
disarray should be avoided.
Application of the law to the facts
[20] The parties raised the following constitutional provisions in their papers :
20.1 Clause 60(2)(c) which states that any office bearer or elected official,
who holds any position i n the Union, no longer holds that position if
the Union suspends or expels them. The applicant states that this
clause impacts on him because he is suspended. The respondents
state that the clause applies only as a disciplinary sanction, and the
applicant has not been suspended following a disciplinary process .
Instead , the applicant is on precautionary suspension pending a
disciplinary process . The outcome of the disciplinary process could,
potentially, lead to the applicant’s suspension under clause 60(2) (c).
The interpretation of the respondents is plainly correct. This is
consistent with the interpretative triad of language, context and
purpose.
20.2 The court was referred to clause 61(1). In my view, the clause is
irrelevant. The applicant is a regional of fice bearer, as contemplated
by clause 29(1)(a) . The applicable clause is therefore clause 62(1).
20.3 It is clear from clause 62(2) that the higher structure disciplines the
office bearers of the lower structure . This clause makes it clear that
the national office bearers are disciplined not by the NEC but by the
CEC. The same logic must be applicable to clause 62(1).
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20.4 Accordingly, the regional office bearers may be disciplined by the
PEC. This interpretation accords with the text, the context, and the
purpo se of the constitution. Any other interpretation would lead to be
insensible. The regional office bearers cannot be expected to subject
themselves to the authority of a structure, the REC, of which they are
part and in which they hold sway. This interpreta tion is consistent
with clause 41(1)(d) which empowers the PEC to supervise the
affairs of the regions and branches , and is consistent with clause
41(1)(f) which grants the PEC wide powers. Furthermore, it is
consistent with clause 63(2)(c), which provides that a higher
executive structure, than the structure to which the charged individual
belongs, must appoint a person to preside over the hearing.
20.5 In support of his argument, the applicant referred to the applicable
spheres of authority, in clause 7 of t he constitution. However, nothing
in that clause is destructive of the interpretation set out in paragraphs
20.3 and 20.4 above. Clause 7 recognises the authority of the higher
structures in relation to those lower in the hierarchy. Quite apart from
the in terpretative triad of text, context and purpose, when interpreting
a union constitution the court must also seek an interpretation that is
sensible, and convenient.
20.6 Precautionary suspension is expressly provided for in clause 63(1) . It
is clear from that clause that the precautionary suspension can last
for a period not exceeding 30 days, unless extended by the
chairperson of the disciplinary hearing. There is nothing which
suggests that precautionary suspension, by itself, has the effect of
preventing the applicant from standing for election, or participation at
the Provincial Congress. Any such interpretation is contrived .
20.7 Section 63(4)(f) states that if disciplinary proceedings are pending, a
shop steward, office bearer, or elected official cannot stan d for
election. This applies only when the individual concerned has been
charged. Accordingly, in the present instance, the applicant, as an
office bearer, cannot stand for election unless he is exonerated at a
disciplinary hearing that is finalised before the Provincial Congress.
Conclusion
[21] For the reasons set out above, the applicant has failed to make out any
right to the relief he seeks. His interpretation of the constitution was
contrived.
Costs
[22] The respondents argued for costs of the applicatio n including the costs of
two counsel. I believe costs are warranted. This application is so lacking
in merit that it warrant s costs on that basis alone. In my view, the
application also amount ed to an abuse of court process. The application
was brought to frustrate NEHAWU and undermine its ability to discipline
him. However, l ike every other member, official and office bearer of the
Union , he is not immune to discipline.
[23] The applicant relie d, in the main, on allegations of a conspiracy against
him but prod uced no credible proof of this . As “evidence” of the
conspiracy, the applicant point ed to the absence of a social media policy.
However, the charges against him do not refer to a policy document
relating to social media . This was a calculated misdirection. In any event,
clause 62(1) permits disciplinary action against an y office bearer who
acts “ in such a manner that is detrimental to the interests of the Union
and its members …” In any event, there were policies of relevance to the
charges , which the applic ant failed to bring to the attention of the court.
[24] The applicant did not challenge the lawfulness of the charges against
him. The charges relate d, broadly, to bringing the Union into disrepute,
acting in a divisive manner, and breaching policies which govern the
conduct of leaders in relation to elections, canvassing, social media,
communications, internal cohesion and unity. The charges went much
~~
wider than the use of social media, something the applicant was at pains
to avoid.
[25] In his papers, and the argument presented on his behalf, the applicant
vigorously argued that there was no policy in relation to social media .
Yet, less than two years earlier, the applicant had been specifically
instructed to desist from using social media to debate internal un ion
issues. The applicant was fully aware that this instruction constituted a
policy against the use of social media to debate internal issues . This too ,
the applicant failed to bring to the attention of the court.
[26] The applicant’s case rest ed upon the all eged unlawfulness of his
suspension. In my view, he relied on a deliberate misreading of the
constitution. Furthermore , he failed to point out that the precautionary
suspension would only be in place for thirty days and could not be
extended except by the chairperson of the disciplinary hearing. It is clear
that precautionary suspension , by itself, does not prevent the applicant
from attending the Provincial Congress , and standing for nomination. The
interpretation of the constitution, as contended for by t he applicant, was
inconsistent with the plain language of the constitution, the context, the
purpose, and border ed on the absurd.
[27] While the applicant did not challenge the lawfulness of the disciplinary
action as such, he sought an interdict of the disci plinary process. This
relief is incompetent, and again called into question his bona fides.
[28] In the se circumstances, fairness demands that the applicant bear the
costs - including costs of two counsel. The application was completely
without merit, and an a buse of court process.
Conclusion
[29] For the reasons set out above, the application is dismissed with costs,
including the costs of two counsel .
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RN Daniels
Judge of the Labour Court of South Africa
Appearances
For the Applicant :
Adv Matidza and Adv B Monyeki
Instructed by Ledwaba Inc
For the Respondent s:
Adv G Hulley SC (with junior counsel)
Instructed by Dominee Ndlovu & Associates
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