Food & Allied Workers Union v Ngcobo NO and Another (353/12) [2013] ZASCA 45; (2013) 34 ILJ 1383 (SCA); [2013] 7 BLLR 648 (SCA); [2013] 3 All SA 351 (SCA); 2013 (5) SA 378 (SCA) (28 March 2013)

Food & Allied Workers Union v Ngcobo NO and Another (353/12) [2013] ZASCA 45; (2013) 34 ILJ 1383 (SCA); [2013] 7 BLLR 648 (SCA); [2013] 3 All SA 351 (SCA); 2013 (5) SA 378 (SCA) (28 March 2013)

The majority held that FAWU, having accepted a mandate to represent the respondents in their unfair dismissal claims, was contractually obliged to act with diligence and care. FAWU breached this mandate by failing to refer the dispute to the Labour Court within the prescribed period and by failing to apply for condonation. The respondents were not required to apply for condonation themselves after FAWU repudiated the mandate; the law does not permit a party to take advantage of its own breach. The respondents established that, had FAWU performed its mandate, their claims for unfair dismissal would likely have succeeded, entitling them to compensation. The measure of damages is the...

Citation
[2013] ZASCA 45
Parties
Appellant: Food & Allied Workers Union; Respondent: L Ngcobo NO (M Ndlela); Respondent: M Mkhize
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2013
Case Number
353/12
Procedural Posture
Civil Appeal / Appeal From Kwa Zulu Natal High Court (durban)
Outcome
Appeal and cross-appeal dismissed. Appellant ordered to pay costs of the appeal.
Judges
Ponnan JA, Malan JA, Tshiqi JA, Southwood AJA, Plasket AJA
Legal Topics
Breach of Mandate, Unfair Dismissal, Trade Union Liability, Compensation for Unfair Dismissal, Condonation Application, Quantum of Damages
Labour Law Civil Procedure Breach of Mandate Unfair Dismissal Trade Union Liability Compensation for Unfair Dismissal Condonation Application Quantum of Damages

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Parties

Food & Allied Workers Union

Appellant

L Ngcobo NO (M Ndlela)

Respondent

M Mkhize

Respondent

Procedural Posture

Civil Appeal / Appeal From Kwa Zulu Natal High Court (durban)

Legal Issues

  1. 1 Whether FAWU entered into a valid mandate agreement to represent the respondents before the CCMA and Labour Court.
  2. 2 Whether FAWU breached its mandate by failing to prosecute the respondents' claims timeously and failing to apply for condonation.
  3. 3 Whether the respondents' failure to apply for condonation themselves precluded their claim for damages against FAWU.

Ratio Decidendi

The majority held that FAWU, having accepted a mandate to represent the respondents in their unfair dismissal claims, was contractually obliged to act with diligence and care. FAWU breached this mandate by failing to refer the dispute to the Labour Court within the prescribed period and by failing to apply for condonation. The respondents were not required to apply for condonation themselves after FAWU repudiated the mandate; the law does not permit a party to take advantage of its own breach. The respondents established that, had FAWU performed its mandate, their claims for unfair dismissal would likely have succeeded, entitling them to compensation. The measure of damages is the...

Court Disposition

Appeal and cross-appeal dismissed. Appellant ordered to pay costs of the appeal.

Orders

  • The appeal and cross-appeal are dismissed.
  • The appellant is ordered to pay the costs of the appeal.