REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA HELD AT CAPE
TOWN
CASE NO: C491/04
In the matter between:
WORKERS’ UNION OF SOUTH AFRICA Appellant
and
JOHAN CROUSE N.O. First Respondent
THE DEPARTMENT OF LABOUR Second Respondent
JUDGMENT
MURPHY, AJ
1. This is an appeal in terms of Section 111(3) of the Labour Relations
Act 66 of 1995 (“LRA”), against the decision of the first respondent, the
Registrar of Labour Relations (“the registrar’), refusing to register the
appellant in terms of Sections 95 and 96 of the LRA.
2. Section 95 of the LRA permits a trade union to apply to for registration
of a trade union. Section 95(1) provides that any trade union may apply
for registration if it has adopted a name that does not closely resemble
the name or shortened form of the name of another trade union, it has
adopted a constitution that meets the requirements of the LRA, it has
an address in the Republic and it is independent. Section 95(2)
provides that a trade union is independent if it is not under the direct or
indirect control of any employer or employer’s organization; and it is
free of any interference or influence of any kind from any employer or
employer’s organization. Sections 95(5) and (6) set out the
requirements for the trade union’s constitution. Section 95(7) provides
that the registrar must not register a trade union or an employer’s
organization unless the registrar is satisfied that the applicant is a
genuine trade union or a genuine employers’ organization. Section
95(8) provides that the Minister, in consultation with NEDLAC, may by
notice in the Government Gazette publish guidelines to be applied by
the registrar in determining whether an applicant is a genuine trade
union or a genuine employers’ organization.
3. Section 96 sets out the pro forma requirements for registration and
obliges a trade union to apply for registration by submitting to the
registrar on the prescribed form that must be properly completed, a
copy of its constitution and any other information that may assist the
registrar to determine whether or not trade union meets the
requirements for registration. The registrar may require further
information in support of the application. Section 96(3) provides that
the registrar must consider the application and any further information
provided by the applicant and if he or she is satisfied that the applicant
meets the requirements for registration must register the applicant by
entering the applicant’s name on the register of trade unions. Section
96(4) provides that if the registrar is not satisfied that the applicant
meets the requirements for registration, the registrar must send the
applicant a written notice of the decision and the reasons for that
decision and in that notice must inform the applicant that it has 30 days
from the date of the notice to meet those requirement. If within that 30
day period the applicant meets the requirements for registration, the
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registrar must register the applicant by entering the applicant’s name in
the appropriate register (Section 96(5)). If, within that 30day period, an
applicant has attempted to meet the requirements for registration but
the registrar concludes that the applicant has failed to do so, the
registrar must refuse to register the applicant and notify the applicant in
writing of that decision. (Section 96(6)).
4. The appellant was formed as the result of an initiative by workers
employed at the Atlantis Forge plant in Atlantis, Western Cape. In
October 2003 an internal meeting was held where it was decided to
form the union. Those present elected an interim executive committee
which was given a mandate to investigate the requirements for the
union’s establishment and registration in terms of the Act, and to look
into a drafting of the constitution.
5. The union’s application for registration, together with its draft
constitution, was delivered to the registrar on 18 March 2004.
6. The initiative to establish the union arose during 2002 when some
former members of the union recognized at Atlantis Forge, NUMSA,
came to the conclusion that their interests were not being adequately
served and that there was a lack of faith in the ability of the union
organizers to represent the workers. As stated, the decision to form the
union was taken at a general meeting of employees at Atlantis Forge,
which elected an interim executive. The members of the interim
executive committee were Randall Muller, Kenneth Booysen, Neade
Scott, Gershwin Stevens, Dalton Braaf and David Willemse. Of these
members all but Braaf and Willemse were employed. Their involvement
in the formation of the union was due to their experience in trade union
organization and their previous positions as shop stewards. The
organization and their previous positions as shop stewards. The
workers who formed the union were of the view that as full time
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employees they would not have the capacity or time to run the dayto
day activities of the union, and that Braaf and Willemse could thus play
a useful role. The fact that these two men were unemployed, as a
consequence of their dismissal by Atlantis Forge, has assumed some
significance in the dispute regarding the registration of the union.
7. The intention when forming the union was that the structures originally
put in place would be of an interim nature. It was the understanding of
the members that the union would operate in terms of its draft
constitution and that it would have the opportunity to increase its
membership once the registrar had registered it. This is also the advice
the workers received from their attorneys. Members of the interim
executive pursued the various tasks associated with bringing the union
into existence and seeking registration. Employees employed by other
organizations in the region have expressed interest in joining the union.
The second general meeting supported a proposal that the union
should be crosssectorial in its scope. At the time they filed the
registration application they were of the opinion that they had a
potential membership of some 2000 to 3000 employees.
8. Besides not pursuing an active recruitment strategy, the promoters of
the union did not open a bank account in the name of the union
believing that this would only be appropriate once they had succeeded
in obtaining registration.
9. As stated, the application for registration was delivered to the registrar
on 18 March 2004. Thereafter, on 01 April 2004, officials of the
registrar inspected the offices of the union. On the advice of these
officials, the union opened a bank account and continued to make
officials, the union opened a bank account and continued to make
attempts to organize despite the limitations arising as a result of its
nonregistration. In particular, certain employers were unwilling to
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extend to it organizational rights until such time as it obtained
registration. The officials also advised the union that the individuals
who were unemployed and assisting the voluntary capacity, should not
serve as office bearers on its interim structures.
10. On 12 July 2004 the registrar refused to register the union. The letter
refusing registration reads as follows:
I acknowledge receipt of your letter dated 13 April 2004 and have to advise that the
union’s application for registration has been perused and found not acceptable for
approval and I base my decision on the following grounds:
• The union is not a genuine organization as envisaged by the Act.
• The union is not functioning in terms of its constitution.
• The trade union was established for financial gain and to circumvent the
provisions of the Act.
Consequently you are advised that the application for registration is refused with effect
from 12 July 2004.
11. Somewhat surprisingly, the registrar appears to have reached his
decision without any regard to section 96(4) which requires that if the
registrar is not satisfied that an applicant meets the requirements for
registration that he should allow the applicant 30 days during which the
applicant may meet the requirements for registration. On 22 July 2004
the appellant’s attorneys wrote to the registrar pointing out that his
decision did not comply with section 96(4)(a) and (b). They accordingly
requested the registrar to furnish them with reasons and to be afforded
the opportunity of the statutory 30 day period in order to rectify any
noncompliance.
12 On 16 August 2004, the registrar addressed a letter to the appellant’s
attorneys in which he gave his reasons for his decision, which he stated
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explicitly was final. His principal reasons were that the union is not a
genuine one as envisaged by the Act, that it was established for the gain
of individuals and to circumvent the provisions of the Act; and that the
union was not functioning in terms of its constitution. The letter reads as
follows:
I refer to your facsimile letters dated 22 July 2004 and 4 August 2004 respectively
and have to inform you that the decision of the Registrar is final and cannot be
reconsidered. The only route to follow is provided for in section 111 of the Act
(Appeals from the Registrar’s decision).
The reasons for refusing registration of the abovementioned trade union are:
• The trade union is not a genuine organization as envisaged by the Act.
• The trade union was established for gain of individuals and to circumvent the
provisions of the Act.
• The union is not functioning in terms of its constitution.
In arriving at the above decision, I relied on the guidelines issued by the Minister
of Labour in terms of section 95(8) of the Act and the following facts regarding the
application:
• The trade union is not a genuine organization as envisaged by the Act
Trade union as per definition of the Act means “An association of employees whose principal
purpose is to regulate relations between employees and employers, including any employers’
organization”.
From the information at hand, the formation of this union and the subsequent
operation thereof, did not involve employees associating together, but was
initiated by the President Mr. Dalton Braaf and the General Secretary, Mr.
David Willemse after they were dismissed from their respective employment.
This means that unemployed persons established the union. Mr. Braaf claims
to be selfemployed and the conclusion was that the formation of the union
did not involve “employees” as defined in section 213 of the Act. The
did not involve “employees” as defined in section 213 of the Act. The
democratic principles on which a union is based did not apply and it cannot
be argued that workers established this union.
• The union was established for gain of individuals
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The argument above also applies to this point as it can only be argued that
the motive behind the establishment of the union by the two individuals was
for gain. A new application form with an amended Executive Committee that
was later submitted to this Office, reflect Mr. Dalton Braaf who, in conjunction
with Mr. David Willemse established the union, as the General Secretary
whilst Mr Willemse position is that of Treasurer. This happened after it was
pointed out to the officials of the union that the office bearers namely Mr.
Braaf who is not an employee, could not in terms of the definition of “office
bearer” qualify to be the President, he was then positioned as the General
Secretary. This is unconstitutional and it was clearly done only to satisfy the
registration requirements. Although this was clearly an attempt to remedy the
situation the composition of the Executive Committee by moving the names
around, the Executive Committee is still not acceptable in light of the
involvement of the people who established the organization.
• The organization is not functioning in terms of its constitution.
The organization is not functioning as yet and has only potential members
who are willing to join the union after it is registered. Only the “Steering
Committee” is active. The constitution that was submitted for approval does
not make provision for a steering committee. The organization has to function
according to its constitution even if its not registered and upon application for
registration, must prove that it is operational in terms of the constitution.
In respect of your request in paragraph 5 of your letter dated 22 July 2004, I have to
inform you that the report compiled by the Department’s Officials who did the
verification at your client’s Offices, is an internal document only. The Registrar has
verification at your client’s Offices, is an internal document only. The Registrar has
taken his decision on all the fact to his disposal and it is not clear how this report will
contribute in solving your problem.
The reasons outlined above should be regarded as the most important factors in determining
whether any further action should be taken on your client’s behalf concerning the application.
It is my contention that the status of this trade union cannot be remedied to be deemed a
trade union as envisaged by the Act.
12. It is against this decision that the appellants appeal in terms of section
111. The provision provides that any person who is aggrieved by a
decision of the registrar may appeal to the Labour Court against that
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decision within 60 days of the date of the registrar’s decision; or if
written reasons for the decision are demanded, the date of those
reasons. The appeal is one in the wide sense, and may involve a
complete rehearing and adjudication on the merits with or without
additional evidence or information Tickley & Others v Johannes NO &
Others 1963(2) SA 588 (T). In accordance with the general powers in
section 158 of the LRA this court may set aside and correct a decision
on appeal by ordering the performance of any particular act which will
remedy any wrong decision.
13. On appeal the appellant has submitted that the registrar has come to
his conclusions on the basis of a fundamental misreading of the statute
and the guidelines enacted in terms of Section 95(8) of the LRA, and a
misapprehension as to the basis on which he exercises his powers.
14. The registrar counters the appellants appeal by submitting that he is
not entitled to register a trade union unless he is satisfied that it is a
genuine trade union. He is not satisfied that the appellant is a genuine
trade union because its formation was not initiated, formed and
managed by employees in order to regulate their relations with
employers and because the appellant does not function or operate as a
trade union, at all, or in accordance with its own constitution. In his
opposing affidavit the registrar was most influenced by his view that the
appellant was not formed by employees associating together for the
purposes of regulating relations between employees and employers. In
particular he believed the union had been initiated and formed by self
employed or unemployed individuals. The information at his disposal
indicated that the appellant’s President was Mr. Dalton Braaf and the
General Secretary was David Willemse. These persons were not
General Secretary was David Willemse. These persons were not
employees as required by the LRA, as he understood it.
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15. Further in his opposing affidavit, the registrar indicated that he
considered it undesirable and against good public policy to allow the
proliferation of trade unions formed against the background of personal
interests, as in this case, and to pursue personal vendettas. It was
clear to him that the formation of the appellant was to undermine an
existing trade union structure (NUMSA) to which the founders of the
appellant had originally belonged.
16. On the question of the appellant not functioning as a trade union, the
registrar stated that the appellant before obtaining the registration must
function on registered trade union. As he sees it, this means that the
appellant must demonstrate, amongst other things, that it operates in
terms of its own constitution, has a significant membership and
subscriptions, infrastructure, bank account and keeps its minutes and
books in accordance with its constitution and the law. The required
registration, in the view of the registrar, does not establish a trade
union, but recognizes an established trade union and grants its
organizational rights. Before then, the appellant for registration must
demonstrate that it commands the institutional and infrastructural
capacity to exercise organizational rights in the field of its choice. In the
registrar’s view, the appellant lacks these attributes. He goes further
and says, that operating like a trade union means that the appellant
must clearly demonstrate the financial, institutional and infrastructural
capacity to negotiate on behalf of its members.
17. While it seems to me that the registrar was motivated by bona fide
considerations and his understanding of the public interest, he may
indeed have misconstrued his authority and introduced criteria and
indeed have misconstrued his authority and introduced criteria and
requirements which the statute does not sanction. Sections 95 and 96
of the LRA specifically restrict the registrar’s powers. In the period
between 1996 and 2002 the function of the registrar was restricted to
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determining whether the trade union had adopted a name that meets
the requirements of the Act, whether it had adopted a constitution that
was in compliance with sections 95(5) and (6), whether it had an
address in the Republic and whether it was independent. If those
requirements were met, the registrar was obliged to register the trade
union. If not, the registrar was obliged to give the union an opportunity
to remedy the defect within 30 days. In the present matter, the registrar
has not objected to the name of the union or the terms of its
constitution, nor has he raised any issue about its independence.
Rather, we have seen, he claims that it is not a genuine trade union,
that it was established for the gain of individuals and that it was not
functioning in terms of its constitution.
18. After the amendments to the LRA in 2002, the registrar was given the
additional authority in terms of section 95(7) not to register any trade
union unless he was satisfied that the applicant is a genuine trade
union.
19. The Act provides no definition of the term “genuine”, but such meaning
can be gleaned from the guidelines issued in terms of section 95(8) in
GNR14 or 6 in Government Gazette 25515 of 10 October 2003. Clause
1 of the guidelines sets out their purpose as follows:
This document contains guidelines published by the Minister of Labour, in
consultation with NEDLAC, that are to be applied by the Registrar of Labour
Relations in determining whether an applicant for registration in terms of the Labour
Relations Act is a genuine trade union or a genuine employer’s organization. In terms
of section 95(7) of the Labour Relations Act, the Registrar may only register a trade
union or an employers organization if the Registrar is satisfied that it is a genuine
union or an employers organization if the Registrar is satisfied that it is a genuine
trade union or a genuine employer’s organization. In addition, in terms of section
106(2A) of the Labour Relations Act, the Registrar may cancel the registration of a
trade union or an employer’s organization that is not, or has ceased to function as, a
genuine trade union or employer’s organization, as the case may be.
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20. The guidelines clearly indicate that when determining whether an
organization is genuine, the registrar must make a distinction between an
applicant for registration and an existing organization in respect of which the
registrar is determining whether to cancel registration in terms of section
106(2A). Clause 3 of the guidelines intimates that a less onerous requirement
applies in respect of applicants for registration, as compared to existing trade
unions who are under investigation for the purpose of withdrawing
registration. Clause 3 provides as follows:
In order to determine whether an organization is genuine, it will be necessary for the
registrar to examine the actual operation of the organization. In the case of an
applicant, particular attention will have to be paid to the manner of which the
organization was established and formed. In the case of an existing organization,
attention will have to be paid to the actual activities and functioning. In evaluating
whether a trade union or the employer’s organization is genuine, the registrar must
take into account all relevant factors.
21. The distinction is rational given the fact that an unregistered trade
union seeking registration is limited as to the activities it can undertake on
behalf of its members. Therefore it makes sense to limit the determination to
paying attention to the manner in which the organization was established and
formed and without having regard to the actual activities and functioning.
While registration is not a sine qua non for the separate juristic personality of
either a trade union or an employer’s organization, it is clearly of fundamental
importance. Registered trade unions enjoy organizational rights, the ability to
enter into binding and enforceable collective agreements, agency shop
agreements, closed shop agreements, the ability to establish bargaining
agreements, closed shop agreements, the ability to establish bargaining
councils and to negotiate at such bargaining councils, the establishment of
statutory councils, the ability to pursue disputes regarding demarcation
between sectors and areas, the right to engage in strikes and recourse to lock
outs, the right to refer and appear on behalf of members at conciliation and
arbitration proceedings before the CCMA and at the Labour Court. Hence,
registration is critical to a trade union’s viability and efficacy National
Employer’s Forum v Minister of Labour & Others (2003) 24 ILJ 954 (LC).
22. Turning first to the registrar’s third reason for refusing registration, it
appears that his view that the union was not functioning in terms of its
constitution amounts to a consideration of its actual activities and
functioning which would be appropriate when deciding whether to
withdraw registration already granted, but is inappropriate when
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applied to a trade union seeking registration. Given that generally it is
unlikely that an unregistered trade union will be in a position to secure
organizational rights, at least until it obtains registration, it is rational
that an as yet an unregistered union should not be barred from
registration on the ground that it is not fully operational in terms of its
constitution. In practice such a requirement would be an effective bar to
the registration to all new trade unions. Therefore, the refusal to grant
registration on this ground cannot be correct.
23. The registrar’s principal reason for refusing registration seems to be his
conviction that the union was not a genuine union. Counsel for the
registrar extrapolated on his reasoning in argument. He maintained that
the right to form or belong to a trade union in South Africa is enshrined
in section 23(2) of the Constitution which provides that every worker
has the right to form and join a trade union and to participate in its
activities and programs. Accordingly, he submitted, only a worker is
entitled to participate in the formation of a trade union. In other words,
the beneficiaries of the constitutional rights are workers or employees
and this means that only workers or employees are entitled and can
exercise the constitutional right to form a trade union. The appellant
was not formed by employees or workers, so he claimed, because of
the central role in the formation of it played by Braaf and Willemse.
Braaf was selfemployed and Willemse unemployed.
24. I cannot accept this argument. Section 213 of the LRA provides that a
trade union means “an association of employees whose principal
purpose is to regulate relations between employees and employers,
including employer organizations”. The fact that Braaf and Willemse,
who admittedly were not employees, played a central role in the
who admittedly were not employees, played a central role in the
formation of the organization did not per se render the organization not
an association of employees. The documentary evidence reveals that
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the union was indeed formed by a group of employees at a general
meeting exercising their right to freedom of association. Moreover, a
constitution was drafted and adopted with the view to registration of the
union and thereafter the executive committee and office bearers were
elected. The union is also seeking to recruit members who are in
employment and is doing its level best to function allbeit subject to
restrictions by virtue of its nonregistration.
25. The fact that assistance was given to the employees by former
colleagues who were unemployed or selfemployed, cannot pose a bar
to registration. Many trade unions in South Africa have been brought
into existence at the instance of persons who were not employees, but
who were social activists, academics or politically motivated
individuals. As many will recall, the Federation of South African Trade
Unions (FOSATU), the predecessor of the country’s biggest existing
federation COSATU, is but one example. To impose a requirement that
associations can only be formed by those who qualify for membership
of them would be an unnecessarily restrictive limitation upon the
freedom of association. There is no requirement in the common law for
instance that an association for the blind should be formed only by
blind persons. Philanthropists concerned about the welfare of the blind
should indeed be encouraged by the law to assist in the formation of
such an organization. By the same token, I do not see anything in the
constitution, the LRA or the common law which would justify such a
restriction on the formation of trade unions. Indeed, the distinction
drawn between an office bearer and an official in the LRA
contemplates individuals who are not in the employment of other
contemplates individuals who are not in the employment of other
persons playing a key role in the activities of a trade union as officials.
The fact that selfemployed and unemployed persons facilitated the
formation of the association of employees, does not render that
association of employees not a genuine trade union.
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26. Moreover, the registrar’s powers under section 95(7) should be
construed as including a reference to the mischief which the 2002
amendment sought to address. It is well known that the amendments
effected to section 95 and 106 of the LRA in respect of registration and
deregistration of trade unions on the grounds of genuineness, sought
to deal with a clearly defined mischief which was set out in the
explanatory memorandum to the Bill in the following terms:
Since the enactment of the 1995 Labour Relations Act there has been a
significant increase in the number of trade unions and employers’ organizations.
A significant number of these are no more than disguised labour consultancies
that have registered for the sole purpose of gaining appearance rights at the
CCMA and Labour Court.
It has also come to the attention of the Department that a number of these ‘trade unions’
adopt coercive practices that are indicative of the fact that they are not genuine trade unions:
(a) the trade unions coerce members to sign
agreements which entitle the union to all benefits
due to the member by the employer upon death of
the member;
(b) if the trade union acts on behalf of a ‘member’ in a
claim, excessive or disproportionate, the full
amount of any payment received is not paid over
to the member and often a service fee is charged;
(c) some unions require up to six months notice of
resignation from members and levy heavy
resignation fees on members.
There are also strong indications that some financial and insurance brokers have
become active in the establishment and the affairs of trade unions and
employers’ organizations in order to market financial or insurance products. In
one instance a Magistrate’s Court ordered the transfer of a union’s assets and all
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records (in effect the registration and management) to an insurance broker. This
broker then attempted to continue by cloaking its activities under the banner of a
union. The status quo was partially restored but only after a lengthy, resource
absorbing and timeconsuming process.
The operation of certain labour consultancies that have registered as employers’
organizations undermine effective dispute resolution. These organizations tend to
recruit their members from small businesses that are inexperienced in respect of
labour relation’s matters. Once gullible employers have joined, they are frequently
faced with exorbitant fees.
This creates a negative impression of the Labour Relations Act and its dispute
resolution institutions and undermines the efforts of genuine organizations
participating in collective bargaining structures to recruit such employers. This in
turn negatively impacts on the participation by certain employers, including small
employers in bargaining councils.
The proposed amendments to section 95 are intended to discourage the
formation and registration of trade unions and employers’ organizations that are
not genuine, by introducing a requirement that they be genuine or bona fide and
giving the registrar of labour relations the power to refuse to register
organizations which are not. The Minister will have the power to issue guidelines
concerning whether or not a trade union or employers’ organization is bona fide .
Any refusal to register a trade union on these grounds will be subject to appeal to
the Labour Court.
The International Labour Organization has expressed the view that this is in
keeping with its standards concerning the promotion of collective bargaining and
freedom of association.
27. The registrar has produced no evidence which supports any claim that
the appellant is involved in any of the activities referred to in the
the appellant is involved in any of the activities referred to in the
explanatory memorandum.
28. Moreover, it is more than evident in the registrar’s opposing papers that
he does not see his role as limited to one of preventing the mischief
15
intended by the amendments, but has assumed to himself an authority
and power aimed at halting the proliferation of trade unions in general.
He clearly disapproves of the formation of a new union as a result of
dissatisfaction by employees with their existing union. These two
considerations, in my view, are an evident misdirection resulting in the
misapplication of the authority which he has. Under the previous
dispensation, the registrar did indeed enjoy some power as a gate
keeper for the principle of majoritarianism in terms of an authority
vested in him by earlier legislation to refuse registration of unions that
are not sufficiently representative. While the principle of majoritarianism
remains the favoured policy of our law, it no longer operates to prevent
registration. Our law is currently more in line with the prescriptions of
the International Labour Organization which permit freer competition
among unions by making registration a mere ministerial process, but
providing additional benefits and inducements to majority unions in the
form of organizational rights, the power to bind minorities through
collective agreements, the right to closed shops and so on. Sections 95
and 96 make it clear that the registrar no longer enjoys a majoritarian
gatekeeper role at the registration stage.
29. The right to freedom of association must be interpreted generously and
the requirements of registration, in so far as they restrict that right,
should be interpreted restrictively. The limitations on the right of
freedom of association in the section 95(7) are justifiable only to the
extent that the term “genuine trade union” is in line with an
interpretation giving effect to the policy contained in the memorandum
to the Bill. Accordingly, I am in agreement with the appellant that the
to the Bill. Accordingly, I am in agreement with the appellant that the
reasons given by the registrar and the content of his opposing affidavit
reveal that he has failed to limit the term “genuine” accordingly and in
the result has misconstrued his powers in terms of the LRA.
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30. Likewise, the refusal to register the union on the grounds that it was
established for the gain of individuals is equally open to criticism. The
argument here was that the motive behind the establishment of the
union was for the gain of Braaf and Willemse. With regard to Braaf
serving as an office bearer, the registrar was correct in his contention
that such is not permitted in terms of the LRA. However, once this was
brought to the attention of the union the matter was remedied. Both
Braaf and Willemse qualified to be employed by the union as officials
and there is no bar in that regard. The fact that these two individuals
received remuneration for advancing the process of registration also
cannot be a bar to registration. Any voluntary association, the union
included, is entitled to secure the services of experts and outside
individuals to manage its affairs or to seek application for registration.
In any event, it is not clear to me on the evidence whether these
individual did indeed gain financially. Rather it seems they were
mandated to pay fees to experts on behalf of the union who would do
the necessary work involved in the registration process. Insofar as
there may be some confusion on the part of the registrar, there is also
no evidence that the union was established for financial gain (rather
than the advancement of its members’ interests), and thereby was
disqualified, if indeed such constitutes a bar.
31. For these reasons I am persuaded that the registrar is mistaken in his
interpretation and application to the facts before him of the guidelines
issued in terms of section 95 of the LRA. Most particularly in that he
clearly failed to take important relevant considerations into account and
was influenced by irrelevant considerations. His finding that the
was influenced by irrelevant considerations. His finding that the
appellant is not an association of employees by reason that certain of
its promoters were unemployed is simply wrong. Likewise, his
conclusion that the union was not operational in terms of its constitution
and was established for the gain of two individuals is also incorrect and
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amount to irrelevant considerations that improperly influenced his
exercise of discretion.
32. The question now arises as to what is the appropriate relief to be
granted in the circumstances. This court clearly has the power to
substitute its decision for that of the registrar where, as in this instance,
the registrar has made an incorrect decision. Little purpose will be
achieved in sending the matter back to the registrar for reconsideration
and this court is in as good a position as the registrar to decide whether
registration should be granted. This is particularly so in light of a letter
addressed by the registrar to the appellant’s attorneys dated 28 th
September 2004. In it the registrar states:
Please be advised that, despite a formal compliance with these specific and express
requirements for registration contained in section 95 of the Act, an applicant for
registration must also comply in substance therewith and thus also with the general
requirements that the union should be genuine in terms of the guidelines issued in
terms of section 95(8) of the Act. Attempts by the same applicants to reregister the
union will be futile, as this is not a genuine trade union.
33. The above comment indicates that the registrar’s refusal to register the
appellant was premised only on the reasons which he put forward and
that he was otherwise of the view that there had been compliance with
the other requirements of the LRA. In other words, the appellant has
met the requirements regarding its name, constitution and
independence. As I am persuaded that the union is indeed a genuine
trade union, it therefore has met all the requirements for registration
and accordingly should be registered.
34. The appellant has also asked for its costs. Normally this court is
34. The appellant has also asked for its costs. Normally this court is
disinclined to make a costs order in a matter such as this. But this case
is somewhat different. The registrar has ridden roughshod over the
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appellant’s statutory rights bestowed in the terms of section 96(4) of
the LRA. The purpose of section 96(4) of the LRA is to ensure that
attempts are made to resolve any disputes about registration by other
means prior to approaching the court. The provision expects the
registrar to give comprehensive reasons, to set out what he considers
to be the grounds upon which registration cannot be granted and to
afford the applicant for registration an opportunity within 30 days to
persuade him otherwise. The registrar’s insistence that he knew best
and that there was no point in affording those rights was misplaced and
lacking in understanding of the purpose of the provision. As it turned
out, he was wrong. He should have opened himself to the possibility of
being persuaded otherwise. Instead he took the view that he was right
and that there was no need to afford the appellant the benefit of its
statutory procedural rights in terms of section 96(4) of the LRA. Such
an attitude has no place in our constitutional order, especially in a
functionary charged with amongst other things overseeing equity in
employment relations. Accordingly, in this instance, costs should follow
success.
32. In the premises I make the following orders:
32.1The appeal in terms of section 111 of the Labour Relations Act
succeeds.
32.2 The first respondent’s decision of 12 July 2004 refusing to
register the appellant is hereby set aside.
32.3 The first respondent is ordered to register the appellant as a trade
union in terms of section 96 of the Labour Relations Act and to issue a
certificate of registration in the appellant’s name within 14 days of the day of
this order.
32.4 The first and second respondent are ordered to pay the costs of this
appeal on a partyparty basis, the one paying the other to be absolved.
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MURPHY, AJ
Date of hearing: 6 May 2005
Date of judgement: 29 July 2005
Applicant’s legal representative: Adv H RabkinNaicker instructed by
Malcolm Lyons & Brivik Inc
Respondent’s legal representative: Adv T Masuku instructed by the
State Attorney
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