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[2013] ZACC 36
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Food and Allied Workers Union v Ngcobo N.O. and Another (CCT 50/13) [2013] ZACC 36; 2013 (12) BCLR 1343 (CC); (2013) 34 ILJ 3061 (CC); 2014 (1) SA 32 (CC); [2013] 12 BLLR 1171 (CC) (9 October 2013)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 50/13
[2013] ZACC 36
In the matter between:
FOOD AND ALLIED WORKERS UNION
...................................................
Applicant
and
LUNGI ROSEMARY NGCOBO N.O.
................................................
First
Respondent
MICHAEL MKHIZE
.......................................................................
Second
Respondent
Heard on : 29 August 2013
Decided on : 9 October 2013
JUDGMENT
CAMERON J (Moseneke DCJ, Froneman J, Jafta J, Madlanga J,
Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo
J
concurring):
The issue is whether a trade union can invoke its constitution,
together with its constitutional right to determine its own
administration,
1
to assert special protection against a claim arising from its
failure properly to prosecute a claim for unfair dismissal on behalf
of its members. Two employees dismissed by their employer, who
entrusted their case to the applicant trade union (Union), claimed
damages from it when it failed to lodge their claims in time. The
KwaZulu-Natal High Court, Durban
2
(High Court) and the Supreme Court of Appeal
3
found in their favour. The Union now applies for leave to appeal
against those decisions.
Factual background
The
reported judgments of the earlier courts set the facts out fully. In
addition, the focus narrowed considerably in this Court,
since the
Union abandoned most of its previous defences to concentrate on a
single argument: that it enjoys special constitutional
protection
from damages claims by members it undertakes to represent. So the
facts can be stated briefly.
In
May 2002, Nestlé South Africa (Pty) Ltd dismissed two
employees after 20 years of service. They were Mr Mandla
Ndlela
(who has died and who is represented by his life partner, the
executor of his estate, the first respondent) and Mr Michael
Mkhize, the second respondent (employees). Aggrieved, they sought
help at the Union’s Durban offices. The Union undertook
to
represent them in their unfair dismissal claims. And it did indeed
refer the dispute for conciliation before the Commission
for
Conciliation, Mediation and Arbitration (CCMA).
4
On 18 June 2002, one of its officials appeared before the CCMA on
behalf of the employees. But that is about all it did. Its
constructive involvement in their cause ended there.
After
conciliation failed at the June 2002 meeting, the CCMA certified
formally that the dispute had not been resolved.
5
This meant that the employees’ claims were ripe for referral
to the Labour Court for adjudication. However, there was a
deadline.
The dispute had to be referred within 90 days.
6
The Union told the employees it would do this. But it never did. The
90-day window closed. And the employees’ claims for
unfair
dismissal lapsed. To revive them would require climbing the
stone strewn hill of a condonation application.
The
Union never attempted that ascent. All its officials did, for nearly
a year, was to assure the employees that their matter
was being
attended to. After months with no concrete news, the employees
decided in May 2003 to seek help from the law clinic
at the
University of Durban-Westville. Only then did they discover the
truth: the Union had done virtually nothing to prosecute
their
claims.
They
returned to the Union’s offices. In response, the Union’s
officials assigned their case to a different official.
He, too,
never applied for condonation. After tarrying for nearly six months,
what he did was to write to the employees. He told
them that it was
“imperative” to apply for condonation, and explained how
he planned to do this. But instead of applying,
as he had undertaken
to do, he devised a different stratagem to remedy the debacle. In
January 2004, he attempted to go back
to the CCMA by re-initiating
the proceedings there. Unsurprisingly, the CCMA rejected this
attempt.
Three
more months passed. By now it was nearly two years after the
employees had been dismissed – and 19 months after their
right
to refer their claims to the Labour Court had lapsed. The Union
asked its attorney, Mr Surju, for an opinion. He furnished
one. It
stated that the employees’ dismissal was not unfair, and that
any attempt to pursue an unfair dismissal claim would
result in an
adverse costs order. Armed with this, the Union washed its hands of
the employees and their case. It told them it
would not proceed with
their claims in the Labour Court.
The
employees approached a firm of attorneys in June 2004. Their new
advisors immediately threatened a damages claim against the
Union.
They gave the Union two weeks in which to file a condonation
application. This demand, they said, was “part of our
clients’
duty to mitigate the loss”. When the Union did not respond,
summons was issued. This was in August 2004,
more than 27 months
after the dismissal.
High Court
Seven
years later, the employees’ claims were tried in the High
Court. Trial proceedings took place over eight days in February,
May
and November 2011 and February 2012. At their conclusion, the High
Court decided in favour of the employees. The Court rejected
all the
Union’s arguments, including many it has now abandoned. The
Court found that, although it was not necessary to
categorise the
relationship between the Union and the employees as a contract of
mandate, the Union had agreed to assist them
by providing legal
assistance by timeously referring their dispute to the CCMA and, if
necessary, to the Labour Court. The agreement
tacitly entitled the
Union to withdraw legal assistance if it was advised that the
employees’ claims had no prospects of
success – but in
doing so it had an obligation to prevent prejudice to the employees.
This meant that the Union was obliged
to apply for condonation
itself when, without notifying the employees, it failed to refer the
dispute to the Labour Court.
The
Union urged the High Court to find that it would be contrary to
public policy to impose liability on a trade union for not
prosecuting members’ claims because there would be ruinous
financial consequences. The High Court rejected this: the Union
had
provided no evidence that indemnity insurance would be prohibitively
expensive.
The
High Court concluded that the employees’ dismissal would have
been found to be both procedurally and substantively unfair
had it
been referred to the Labour Court and adjudicated there. It awarded
each of the employees 12 months’ salary and
commissions,
amounting to R107 232, calculated on the basis of a “just and
equitable” consolation payment (
solatium
) to which they
would have been entitled had their employer been the defendant.
Supreme Court of Appeal
On
appeal, the High Court having granted leave, the majority of the
Supreme Court of Appeal held that the Union had undertaken
to assist
the employees under a contract of mandate. That contract obliged
them to represent the employees, and so the question
whether the
Union’s constitution obliged it to represent its members was a
“red herring”. The well-established
natural incidents
(
naturalia
) of a contract of mandate obliged the Union to
perform its functions faithfully, honestly and with care and
diligence. Even though
the Union’s officials were not trained
lawyers, it was established law that a mandatary who professes a
certain skill is
held to that standard.
The
Union was therefore obliged, the Supreme Court of Appeal found, to
take the steps necessary to have the employees’ dispute
with
their employer determined in accordance with the LRA. This it failed
to do: first, by failing to refer the dispute in time
to the Labour
Court, and, second, by failing to secure condonation for that
failure. In both respects, the Union “failed
to act honestly
or diligently.”
That
the employees themselves never applied for condonation made no
difference. To succeed against the Union, they had to establish
only
that their dispute, had it been properly referred to the Labour
Court, would have been resolved in their favour. And the
Union was
not entitled simply to walk away from its undertaking. After
discovering that the Union had failed to refer their dispute,
the
employees elected to uphold their agreement with it – and
indeed at that point the Union once more undertook to perform
it.
Even after the Union had changed its mind, the employees (through
their attorneys) gave it a further opportunity to perform.
Only at
that point did the employees finally cancel the agreement and sue
for damages for breach of contract.
The
majority upheld the findings of the High Court on the unfairness of
the employees’ dismissal and the compensation to
which they
were entitled. The Court dismissed a cross-appeal by the employees
against the amount awarded.
The
dissenting judgment would have upheld the appeal and reversed the
High Court’s findings. The employees had failed to
prove that
they suffered their loss as a result of the Union’s breach of
contract. It was their own failure to apply for
condonation that
factually caused their loss. Hence, it was self-inflicted. They
therefore had to allege and prove that, had
they applied for
condonation, it would have been refused. But condonation would
probably have been granted had they applied.
So their cause of
action was incomplete.
In this Court
In
this Court, the Union accepted the following propositions, most of
which it had previously contested: the employees were its
members;
their employer dismissed them unfairly; the Union agreed to
represent them in pursuing their claim; it acted remissly
in doing
so; had their claims been properly pursued, the Labour Court would
have awarded compensation against their employer
in the amount of
damages the earlier courts granted against the Union; and under the
common-law contract of mandate the Union
would have been liable for
breach of mandate both by failing to lodge the claim timeously and
by failing to apply thereafter
for condonation. Both parties
accepted that the employees were themselves free to apply for
condonation at any time.
The Union’s argument was that it enjoys special protection
under the Constitution and the LRA. It centred on a provision
in its
constitution, clause 5.11, that provides that the aims and
objectives of the Union include providing “legal assistance
to
members and/or Officials where it deems it in the interest of the
Union to do so.”
7
This provision, it contended, must be read together with its
constitutional right to determine its own administration, programmes
and activities, enshrined in the Constitution and the LRA.
8
Its right to determine its own administration had thus been
exercised, through clause 5.11, so as to limit the extent of its
contractual liability to those it undertook to represent.
Under the LRA, a trade union “may act in any one or more”
of three different capacities in a dispute: in its own
interest, on
behalf of its members or in the interest of any of its members.
9
From this the Union sought to infer that, because it sometimes
represents both its interests and those of its individual members,
and those may sometimes diverge, the provision entitles it to
withdraw from a mandate when it sees fit.
A
trade union, it argued, plays a unique role in representing its
membership in litigation: it does so only where it deems it
in the
Union’s interest to do so. What is more, it charges nothing
for this service, and its officials generally have no
legal
qualifications. And it must always act in the interests of the union
membership as a whole, rather than only those of individual
members.
Accordingly,
any contract of mandate that the Union concludes is subject to an
implied term that it can withdraw from the contract
at any time if
it deems it in its interest to do so, especially if it has been
advised that the claim has no prospects of success,
and even if the
withdrawal causes prejudice. This term was triggered in April 2004,
when it obtained Mr Surju’s opinion.
It was entitled to
withdraw without liability.
Counsel for the Union further submitted that the mandate the Union
undertook was simply to pursue the employees’ claims
in the
Labour Court, whether before or after the 90-day time period. Since
condonation could always be granted, it did not matter
that the
Union failed to refer their claims in time. The Union conceded that,
under the common-law contract of mandate, the mandatary
can withdraw
from the mandate only if the mandator will not be prejudiced. If the
mandatary withdraws after the mandatary’s
act or omission has
prejudiced the business of the mandate, the withdrawal constitutes a
repudiation that entitles the mandator
to claim damages.
10
But, relying on the dissent in the Supreme Court of Appeal, the
Union said that the employees would have obtained condonation
had
they applied for it. Hence, it did not matter that the Union failed
to institute proceedings in the Labour Court timeously.
The business
of the mandate – which was to refer the matter to the Labour
Court, before or after the deadline – could
still be
performed.
The
employees contended that the Union’s constitution did not
entitle it, having decided it was in its interests and having
concluded a contract of mandate, to withdraw from its agreement with
the employees at any time with impunity. There was no constitutional
issue – the Union was perfectly free to regulate its own
affairs by making provision for a contractual indemnity. It had
simply not done so.
Leave to appeal
It is
long established that for this Court to grant leave to appeal, the
matter must involve a constitutional issue, and the litigant
must
show not only that it has reasonable prospects of success, but that
it is in the interests of justice to grant it leave.
11
The Union’s argument does raise a constitutional issue. It
invokes section 23(4)(a) of the Bill of Rights. But, as
will
emerge now, its argument is barely tenable. It has no prospects of
success. This means, for the reasons that follow, that
the interests
of justice do not favour granting leave to appeal.
Prospects of success on the merits
The
Union’s argument proceeds from two premises. The first seeks
to confine the ambit of the obligations it undertook to
the
employees when it took on their case by implying a term into their
agreement that it could withdraw when it no longer served
its own
interest to continue representing them. The second attempts to evade
the consequences of its admitted failure to lodge
the employees’
claims properly, or to apply for condonation, by asserting that this
was not a breach of its agreement with
the employees. Neither
premise survives inspection.
That
the Union has a constitutional right to determine its own
administration is beyond doubt. What is at issue is whether that
right, located in section 23 of the Constitution and embodied
in the LRA, can serve to found an exemption from liability
for
responsibilities the Union agreed to undertake and then failed to
honour.
The
Union’s constitutional right “to determine its own
administration, programmes and activities” confers on
it
essential organisational autonomy.
12
The inclusion in the Bill of Rights of the right to organisational
autonomy sprang from two inter connected Constitutional
Principles that guided the constitution makers.
13
They were Principles XII and XXVIII, contained in Schedule 4 of the
interim Constitution.
14
Principle XII provided that: “Collective rights of
self-determination in forming, joining and maintaining organs of
civil society, including linguistic, cultural and religious
associations, shall, on the basis of non discrimination and
free association, be recognised and protected.”
Principle XXVIII provided in part that: “Notwithstanding
the
provisions of Principle XII, the right of employers and
employees to join and form employer organisations and trade unions
and to engage in collective bargaining shall be recognised and
protected.”
These
principles arose in response to a half-century of legislated racial
oppression during which, until 1979, discriminatory
laws prohibited
the majority of this country’s people, under criminal penalty,
from forming and joining trade unions.
15
The right not only to organise through unions, but for unions to
have organisational autonomy in pursuing their members’
rights, was thus an integral part of the constitutional vision that
sought to replace that repressive history.
So
understood, the right secures for trade unions and employer
organisations a zone of structural and organisational
self-regulation
that is free from outside control. This means that
unions and employer organisations have the liberty, subject to the
Constitution,
to decide how they administer themselves and how they
promote the interests of their members through self-chosen
programmatic
activities. It also means that they have the freedom to
control their own structure. These liberties, in turn, find
statutory
embodiment in the LRA.
16
The
right does not, however, specify how the freedom it confers may be
exercised. Nor, in itself, does it suggest immunity from
damages
claims. The Union’s argument was that its exercise of the
right to determine its own administration, as embodied
in its own
constitution, conferred that immunity. The effect of clause 5.11,
read with section 23(4)(a) of the Constitution,
was to imply a
term, whenever it agreed to provide legal assistance to a member,
that entitled it to withdraw assistance at any
time if it was no
longer in its interest to continue providing it. Here, the Union
invoked section 200 of the LRA.
17
This, it said, conferred the power on a trade union to act in its
own interests, and the interests of its members, even when
doing so
may prejudice individual members.
But
the provision cannot bear the weight the Union seeks to put on it.
It is a capacity-conferring provision, not an exemption
clause. What
the provision does is to confer legal standing on trade unions and
employer organisations to act in distinct and
differing capacities –
and it stipulates that they are entitled to be party to any
proceedings involving their members.
Nothing in it suggests that a
union may pursue its own interests with impunity when it has injured
the interests of a member
by failing to represent him or her
properly.
Nor
does clause 5.11 of its constitution help the Union. The Union
contended that because the clause permitted it to provide
legal
assistance to members “where it deems it in the interest of
the Union to do so”, it was entitled, without adverse
consequence, to stop providing legal assistance when it deems it no
longer to be in its interest.
But
this is not what clause 5.11 means. The clause merely expresses
one of the Union’s aims and objectives.
18
It does not purport to regulate the powers of the Union and its
office-bearers and officials. Those are fully set out elsewhere
19
– and nowhere do they feature the qualification the Union
seeks to import. On the contrary, the Union’s constitution
shows that its drafters foresaw that those working for the Union
might be negligent in performing their duties. In response,
they
gave only a limited indemnity from its consequences. The Union
indemnifies its shop stewards, officials, office-bearers
and
committee members from proceedings, costs and expenses incurred
through negligence in the performance of their duties on
behalf of
the Union, provided their acts do not constitute misconduct.
20
The provision does not say that the Union itself is exempt from
those consequences. In fact, it specifies the contrary: when
those
acting on its behalf are negligent, the Union will take
responsibility for them.
So
clause 5.11 does not shield the Union. And even if we
understand the provision as defining the Union’s authority,
at
most it authorises the Union to give an undertaking to represent its
members when it deems it in its interest to do so. It
says nothing
about the Union’s entitlement to withdraw from that
undertaking, once given. It does not imply a term into
an agreement
to provide legal assistance entitling the Union to withdraw with
impunity. The clause gives the Union the freedom
to contract to
provide legal assistance, not the freedom not to perform its
contracts.
Even
if the Union could withdraw, it nonetheless had a duty to take that
decision in good faith and to notify the employees promptly.
These
qualifications underlie the law of mandate: a mandatary must act in
good faith, and may withdraw only if there is still
time for the
mandator to fulfil the mandate.
21
The Union did not do this. Rather, it seems to have cut the
employees loose to protect itself from the unpalatable consequences
of its failure to represent them properly.
So
even if we construe the Constitution and clause 5.11 as best
for the Union, it cannot escape the consequences of its remissness
in representing the employees. This leads to an inescapable problem
for the Union: when it decided to withdraw, it had already
failed to
lodge the employees’ claim timeously. Faced with this
difficulty, the Union sought to put a particular gloss
on its
agreement with the employees. It did not undertake, it contended, to
refer their claims to the Labour Court before the
90-day statutory
cut-off – all it agreed to do was to refer their claims at
some point. The Union thus argued that, because
the employees could
still apply for condonation, it incurred no liability to them when
it withdrew from representing them.
This
is not correct. The Union’s argument seeks to find in the
parties’ agreement a tacit term that the Union’s
obligation was merely to get the matter to the Labour Court, whether
before or after the cut-off. A tacit term is an unspoken
provision
of the contract. It is one to which the parties agree, though
without saying so explicitly.
22
The test for inferring a tacit term is whether the parties, if asked
whether their agreement contained the term, would immediately
say,
“Yes, of course that’s what we agreed.”
23
Before a court can infer a tacit term, it must be satisfied that
there is a necessary implication that they intended to contract
on
that basis.
24
No
reasonable understanding of the parties’ dealings supports the
inference that they tacitly agreed that the Union could
lodge the
employees’ claim at any point, without regard to the cut-off.
On the contrary: it is unlikely that any employee
turning to a union
for help in an unfair dismissal claim would agree to a term of this
kind. Much more probably the party, when
asked, would say, “No,
of course not, the claim must obviously be lodged in time, and
failing to do so would violate our
agreement.”
It
follows that the Union’s duty under its agreement with the
employees was not to lodge their claim at any time, but to
lodge it
before the 90-day guillotine fell. That it failed to do. Its failure
breached the contract of mandate it concluded with
them. For this
breach the employees are entitled to compensation. The Union has not
provided any sound reason to depart from
the Supreme Court of
Appeal’s analysis.
25
The
Union’s contention that the business of the mandate could
still be performed also rests on a misappreciation of how
its
remissness impaired the employees’ rights. It is true that the
employees could themselves have applied for condonation.
In fact,
they could still do so now. Though it is by no means clear that
condonation would be granted, I assume in favour of
the Union, along
the lines of the dissenting judgment in the Supreme Court of Appeal,
that it would.
26
This does not rescue the Union from its predicament. The Union faces
the same problem that precluded the tacit term. It did not
undertake
merely to get the employees’ case before the Labour Court.
Rather, the mandate it accepted obliged it to prosecute
their claims
in time. Once the 90-day period expired, that became impossible, to
the palpable prejudice of the employees.
That
this is so emerges from the consequences of not referring a
dismissal dispute timeously. Proper lodging entitles an employee,
without more, to a determination of the merits of a claim by the
Labour Court. But once the 90-day period expires, an employee
has a
different, lesser and conditional entitlement: to apply for
condonation and reinstatement of the claim.
Thus,
as a result of the Union’s failure to refer their case in
time, the employees’ legal position was weaker and
more
precarious than it had been. They had lost their right to
adjudication of their claim. In its place was a weaker right –
the right to seek an uncertain indulgence. That they could still try
to obtain the indulgence is no answer to their complaint
about what
they lost. And their agreement required precisely that the Union
avoid this loss.
So
the Union’s argument founders in every way. It has a
constitutional colouring, but no constitutional substance. Its
contractual premises are contorted and implausible. And it misreads
the Union’s own constitution. In summary, the argument
fails
because (i) clause 5.11, read with the Constitution and the
LRA, does not import a term entitling the Union to withdraw
with
impunity; and (ii) it mischaracterises the obligation the Union
undertook to the employees.
Constitution Seventeenth Amendment Act
The
case was argued on Thursday, 29 August 2013. Six days before,
on Friday, 23 August 2013, the Constitution Seventeenth
Amendment Act
27
took effect. This amended section 167(3) of the Constitution to
confer on this Court jurisdiction to hear non constitutional
matters, “if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point of
law of
general public importance which ought to be considered” by
it.
28
Counsel
for the Union was invited to address the Court on whether, if the
jurisdictional amplification applied, the Union’s
case
involved an arguable point of law of general public importance which
the Court ought to consider. He submitted that, even
if there was no
constitutional issue at stake, the Supreme Court of Appeal erred in
failing to give sufficient weight to, and
to apply, clause 5.11.
He did not proffer any other argument.
It is
not necessary to decide if the constitutional amendment applies to
these proceedings, since, even if it does, the outcome
is no
different. The Union’s contentions are entirely without merit,
whether arrayed in constitutional garb or dressed
more plainly as
points of law.
Order
[47] The
following order is made:
1. The application for leave to appeal is
dismissed with costs.
For
the Applicant: Advocate M Pillemer SC and Advocate R Pillemer
instructed by Brett Purdon Attorneys.
For
the First and Second Respondents: Advocate C Nel instructed by
McGregor Erasmus Attorneys.
1
Section
23(4)(a) of the Constitution provides:
“
Every trade union and every
employers’ organisation has the right to determine its own
administration, programmes and activities”.
2
Ngcobo
and Another v Food & Allied Workers Union
[2012] ZAKZDHC 18;
(2012) 33 ILJ 1337 (KZD) (High Court judgment).
3
Food
& Allied Workers Union v Ngcobo N.O. and Another
[2013]
ZASCA 45
;
2013 (5) SA 378
(SCA) (Supreme Court of Appeal judgment)
per Ponnan JA and Plasket AJA, with Malan JA and Tshiqi JA
concurring; Southwood AJA
dissenting.
4
In
terms of section 191(1) of the Labour Relations Act 66 of 1995
(LRA).
5
Id
section 135(5).
6
Id
section 191(5)(b) and (11)(a).
7
Clause
5.11 of the Union constitution provides:
“
The aims and objectives of
the Union shall be:
. . .
To provide legal assistance to members and/or Officials
where it deems it in the interest of the Union to do so.”
8
The
provisions of section 23(4)(a) of the Constitution are set out in
n 1 above. Section 8(a)(i) and (b) of the LRA provides:
“
Every trade union and every
employers’ organisation has the right—
(a) subject to the provisions of Chapter VI—
(i) to determine its own constitution and rules;
. . .
(b) to plan and organise its administration and lawful
activities”.
9
Section
200 of the LRA provides:
“
(1) A registered trade union
or registered employers’ organisation may act in any one or
more of the following capacities
in any dispute to which any of its
members is a party—
(a) in its own interest;
(b) on behalf of any of its members;
(c) in the interest of any of its members.
(2) A registered trade union or a registered employers’
organisation is entitled to be a party to any proceedings in terms
of this Act if one or more of its members is a party to those
proceedings.”
10
See
Joubert et al (eds)
LAWSA
(second edition) vol 17(1) at
para 16(h).
11
See,
for example,
Coetzee v National Commissioner of Police and
Another
[2013] ZACC 29
at para 19 and
Ingledew v
Financial Services Board
[2003] ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC) at para 13.
12
The
full text of section 23 of the Constitution reads:
“
(1) Everyone has the right to
fair labour practices.
(2) Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of
a trade union; and
(c) to strike.
(3) Every employer has the right—
(a) to form and join an employers’ organisation;
and
(b) to participate in the activities and programmes of
an employers’ organisation.
(4) Every trade union and every employers’
organisation has the right—
(a) to determine its own administration, programmes and
activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation
and employer has the right to engage in collective bargaining.
National legislation
may be enacted to regulate collective
bargaining. To the extent that the legislation may limit a right in
this Chapter, the limitation
must comply with section 36(1).
(6)
National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the
legislation may limit a right in this Chapter the limitation must
comply with section 36(1).”
13
See
Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) and
Ex Parte Chairperson of the Constitutional
Assembly: In re Certification of the Amended Text of the
Constitution of the Republic
Of South Africa, 1996
[1996] ZACC
24
;
1997 (2) SA 97
(CC); 1997 (1) BCLR 1 (CC).
14
Constitution
of the Republic of South Africa Act 200 of 1993.
15
The
Industrial Conciliation Act 11 of 1924 was the first statute to
provide for the registration of employers’ organisations
and
trade unions. But it expressly excluded black African workers from
the definition of “employee”. They were thus
barred from
belonging to trade unions, from direct representation on industrial
councils and from participating in conciliation
boards. See Du Toit
et al
Labour Relations Law – A Comprehensive Guide
5 ed
(LexisNexis Butterworths, Durban 2006) at 6-8. The exclusion enacted
in 1924 did not apply to coloured and Indian workers.
However, the
racial bar was expanded in 1956. The Industrial Conciliation Act 28
of 1956 prohibited the registration of new non-racial
unions and
required existing non-racial unions to have racially separate
branches and whites-only executives. Id at 8-10. The
racial
restrictions on forming and belonging to trade unions were abolished
when the Industrial Conciliation Amendment Act 94
of 1979 was
enacted.
16
The
relevant parts of section 8 of the LRA are set out in n 8 above.
17
Section
200 of the LRA is set out in n 9 above.
18
Clause
5 of the Union constitution reads:
“
The aims and objectives of
the Union shall be:
5.1 To organise all workers engaged in the Food
Industry in South Africa into one (1) National Union and to use
every legitimate
means to induce all workers who are eligible for
membership to become members.
5.2 To promote a spirit of trade union unity and
solidarity amongst members of the Union and amongst all workers
irrespective
of race or sex and to oppose any policy, practice or
measure which will cause division or disunity amongst members or
workers.
5.3 To promote the interest of the members in
particular and workers in general.
5.4 To regulate relations between members and their
employers and to protect and further the interest of members in
relation to
their employers.
5.5 To negotiate and enter into collective agreements
between members and their employers in relation to their employment.
5.6 To promote worker leadership and build democratic
structures at all levels within the Union.
5.7 To consider and advise on legislation or policies
affecting the interest of members, to provide support for or oppose
any
such legislation or policies and to make representations to
public and other bodies.
5.8 To co-operate with and assist other progressive
trade unions or worker organisations within South Africa and
internationally
in the general interest of the working class
movement.
5.9 To assist members in obtaining employment and to
endeavour to induce employers in the food industry to employ trade
union
labour.
5.10 To educate workers about their rights.
5.11 To provide legal assistance to members and/or
Officials where it deems it in the interest of the Union to do so.
5.12 To endeavour to achieve decent standards of living
and social justice.
5.13 To do such other things as appear to be in the
interest of the union and its members and which are not inconsistent
with
the aims and objectives or any matter specifically provided for
in this Constitution.”
19
Clause
8.6 (powers of factory general meetings); clause 9.8 (duties of shop
stewards committee); clause 9.9 (duties of shop stewards
committee
office-bearers); clause 11.7 (powers of branch committees); clause
12.6 (powers of branch executive committees); clause
13.2 (duties
and functions of branch office-bearers); clause 15.6 (powers of
regional conferences); clause 16.6 (powers
of regional executive
committees); clause 19.6 (powers of national conference); clause
20.6 (powers of national executive council);
clause 21.1 (duties and
functions of national office-bearers); and clause 21.2 (duties and
functions of national officials).
20
Clause
32 is titled “Indemnification of Shop Stewards, Officials,
Office-Bearers and Committee Members” and provides:
“
The shop stewards, officials,
office-bearers and committee members of the Union, provided that
they have not acted in a manner
which would constitute misconduct,
shall be indemnified by the Union against all proceedings, costs and
expenses incurred by
reason of any omission, negligence or other act
done in performance of their duties on behalf of the Union and they
shall not
be personally liable for any of the liabilities of the
Union.”
21
LAWSA
above n 10 at para 11.
22
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
[2011] ZASCA
100
;
2011 (5) SA 19
(SCA) at paras 13-21 (reversed on other
grounds in
Maphango and Others v Aengus Lifestyle Properties
(Pty) Ltd
[2012] ZACC 2;
2012 (3) SA 531
(CC);
2012 (5)
BCLR 449
(CC)) and Christie and Bradfield
The Law of Contract in
South Africa
6 ed (LexisNexis, Durban 2011) at 174-81.
23
See,
for example,
Wilkins N.O. v Voges
[1994] ZASCA 53
;
1994 (3)
SA 130
(A) at 136H-137D and 141G-H, explaining the distinction
between implied and tacit terms, and the judgment of Corbett JA in
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial
Administration
1974 (3) SA 506
(A) at 532-3, citing the famous
statement of Scrutton LJ in
Reigate v Union Manufacturing Co
(Ramsbottom) Ltd
[1918] 1 KB 592 (CA) at 605.
24
Alfred
McAlpine & Son (Pty) Ltd
above n 23 at 533A.
25
Supreme
Court of Appeal judgment above n 3, especially at paras 45-7.
26
Id
at paras 39-42.
27
Constitution
Seventeenth Amendment Act, 2012.
28
Section
167(3) of the Constitution, as amended, reads:
“
The Constitutional Court—
(a) is the highest court of the Republic; and
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court
grants leave to appeal on the grounds that the matter raises an
arguable point
of law of general public importance which ought to be
considered by that Court; and
(c) makes the final decision whether a matter is within
its jurisdiction.”