Food and Allied Workers Union and Another v Phakedi and Another (J296/2020) [2022] ZALCJHB 103 (26 May 2022)

The Labour Court of South Africa, Johannesburg

Reportable

case no: J296/2020

In the matter between:

FOOD AND ALLIED WORKERS UNION First

Applicant

MAYOYO SAMUEL MNGOMEZULU Second

Applicant

and

MOLEKO JOHANNES PHAKEDI

First Respondent

SOUTH AFRICAN FEDERATION OF TRADE UNIONS Second Respondent

Heard: 21 May 2020

Delivered: 29 May 2020 (This judgment was handed down electronically by emailing a copy to the parties. The 29th May 2020 is deemed to be the date of delivery of this judgment).

Edited: 26 May 2022

Summary: Due to Covid-19 lockdown, this application was heard via video conferencing and the parties agreed to this arrangement. Declaratory relief – jurisdiction of the Labour Court with regard to matters involving trade unions and its members. Where a matter involves a trade union and its employees, the powers of the Labour Court under section 158 (1) (e) of the Labour Relations Act, 1995 do not find application. Section 77 (3) of the Basic Conditions of Employment Act, 1997 empowers the Labour Court to determine issues relating to employment contract. Declaratory relief is appropriate where there is a concrete dispute between the parties and an order would have practical effect on the parties. Held: (1) The application is heard as one of urgency (2) The applicants have the necessary locus standi to institute the application. (3) It is declared that the first respondent is an employee of the applicant in the capacity of Deputy General Secretary (DGS). (4) The application to interdict the first respondent is dismissed. (5) The applicant to pay the costs of the application.

Judgment

MOSHOANA, J

Introduction and background facts

[1] In this application, the applicants[1] seek the following order:

“1. Dispensing with the provisions of the rules relating to times and manner of service provided for in the rules and dealing with the matter as one of urgency in terms of Rule 8 of the Rules of the Labour Court;

2. Declaring that the first respondent is not an employee of the first Applicant;

3. Declaring that the first respondent is neither the General Secretary (“GS”) nor the Deputy General Secretary (“DGS”) of the Applicant (Food and Allied Workers Union);

4. Interdicting and restraining the first respondent from unlawfully:

4.1 acting as, and purporting to be, the first applicant’s GS or DGS;

4.2 altering the first applicant’s letterhead by inter alia, inserting his name and that of Katishi Masemola and using it to misrepresent that he is the GS or GDS of first respondent;

4.3 entering the offices and properties of the first applicant and using any resources of the first applicant, misrepresenting that he is its GS or DGS;

4.4 communicating with the first applicant’s structures, officers, officials, members and staff, except when he does so in his official capacity as DGS of SAFTU with prior written authorisation by the NOBs of FAWU; and

4.5 misrepresenting that he is the GS or DGS of the first applicant in any manner whatsoever.

5. Costs of suit in the event of opposition.

6. Further and/or alternative relief.”

[2] The application is opposed by Mr Moleko Johannes Phakedi (Phakedi). Initially, the matter emerged as an interdict without a declaratory relief. Apparently, after my brother Lagrange J pointed out certain difficulties with the application as it stood at the time, the applicants withdrew the application. When the application was reignited, it came before my sister Prinsloo J. Certain preliminary objections were raised by Phakedi. Such necessitated my sister Prinsloo J to issue a written judgment and make certain orders. Thereafter, the matter arose in my urgent roll. I point out that before my brother Lagrange J and my sister Prinsloo J, Phakedi was not legally represented. In the proceedings before me, he was legally represented.

[3] Although the file of papers in this application runs into several volumes, factually, this matter turns on a crisp issue, which as it is common cause to the parties, occurred on 21 April 2017. For several years, the applicant was an affiliate union to the Congress of South African Trade Unions (COSATU). The then General Secretary (GS) of COSATU, Mr Zwelinzima Vavi (Vavi) ceased to be the GS of COSATU. That saw the birth of a new federation known as South African

Federation of Trade Unions (SAFTU). SAFTU is cited as a party to this application. It is one of the major role players in this dispute, but for reasons not altogether clear to this Court, SAFTU remains passive.

[4] Following the formation of SAFTU, a sizeable number of COSATU affiliates became members of SAFTU. The applicant became one of the founding members of SAFTU. It remained undisputed that prior to the election of Phakedi to the position of Deputy General Secretary (DGS) of the applicant in or about August 2016, he was an employee of the

applicant. He only got elected to the DGS position because he was by then an employee of the applicant. On 21 April 2017, SAFTU held its inaugural congress. Phakedi was a delegate at that conference representing the applicant. In terms of clause 10 of SAFTU’s

constitution, the National Worker Office Bearers (NWOB) is comprised of the President; the Deputy President; the National Treasurer;

General Secretary and the Deputy General Secretary. On the applicant’s version, on the day of the congress, Phakedi’s

name was unanimously put forward for the position of the DGS. Having been put forward he was appointed as the DGS of SAFTU after having been “released” to assume that position. He then immediately commenced his duties at SAFTU and was no longer employed by the applicant.

[5] On Phakedi’s version, on this day, he was instructed by the President of the applicant and other National Office Bearers to stand for a position if nominated. As a result, he stood and got elected to the position of the DGS of SAFTU. He disputes that he ceased to be an employee of the applicant.

[6] The above stated sums up the pertinent facts to this application. The applicant approaches this Court on the basis that based on what happened at the SAFTU congress, Phakedi lost his status as an employee and office bearer of the applicant. Due to that, Phakedi in holding himself out as an employee and an office bearer of the applicant acts unlawfully and ought to be interdicted. Given the concrete dispute between Phakedi and the applicant with regard to his status, a declaratory relief is sought. The bulk of the facts alleged goes to the interpretation of the situation as it obtained at the

congress.

Evaluation

[7] In opposing this matter, Phakedi raised several points of law against the application. Therefore before I deal with the merits of this application, I deem it necessary to provide reasons for my ex tempore rulings on those points.

The issue of urgency and locus standi

[8] The entire morning session of the proceedings was occupied by these two points. Phakedi and his counsel were unrelenting on the issues. It was only at the very late stage of the proceedings that my attention was drawn to the written judgment of my sister Prinsloo J that I found reason to dismiss the two points. In fact, when urgency,

which was persisted with vigorously was being debated with counsel, my attention was not drawn to the written judgment. As a result I blindly ruled that in the exercise of my discretion, the matter should be heard as one of urgency. It was only at the point when the locus standi point was, with equal vigour, pursued by Phakedi’s counsel that my attention was drawn to the written judgment. It then turned out that Prinsloo J made the following pertinent orders with regard to the future of this matter.

“1. The Applicants are granted leave to lead further evidence;

2. The Applicants are granted leave to re-enrol the application for a hearing on the further evidence and the merits.

(My own emphasis)

[9] At that point, I enquired from counsel for Phakedi as to his understanding of order 2. In response, he retorted that with reference to paragraphs 38 and 39 of the written judgment, Prinsloo J having not pronounced on the validity of the impugned resolution, her order is wrong and is not binding on me. According to counsel because of the defective resolution, the application cannot proceed on its merits. On pure and clear principle of stare decisis, the judgment and order of Prinsloo J is binding on me, unless, I find reason to conclude that it is wrong in law. Although Phakedi’s

counsel submitted that the judgment is wrong in law, I remained unpersuaded in that regard. In case there is any slight doubt that I was empowered to hear this matter, I state the following. I have no reason to doubt that the applicant is an interested party in this application. Further, I have no slightest doubt in my mind that I have FAWU as an entity before me.[2] With regard to urgency, a further submission was that Prinsloo J had not ruled on the issue of urgency.

[10] It is common cause that the applicant was before Prinsloo J in an urgent Court. Ordinarily, when a matter lacks any urgency, a judge would not entertain a single issue arising out of that matter. Having entertained the points in limine as raised by Phakedi, it must axiomatically follow that Prinsloo J found the matter to be urgent enough to deserve her attention. To illustrate that, she said the following:

“[35] The relief which I was inclined to grant in this matter, prior to the filing of the application to lead further evidence, was to strike the application from the roll and to afford the Applicants leave to re-enrol this application, on production of a copy of the NEC Resolution conferring authority to institute these proceedings.”

[11] Her order that this matter must be heard on its merits puts the issue beyond any doubt. It was for the above reasons that I ruled that the application should be heard.

The issue of jurisdiction

[12] The jurisdictional point as raised by Phakedi was not pursued with any vigour during argument. It is a point raised by Phakedi at the time when he was not legally represented. That explains the reason why it was not pursued in oral argument. However, for the purposes of this judgment the jurisdictional point lingers on when consideration is given to the position of Phakedi as a member and/or an office bearer of the applicant. On the applicant’s version, constitutionally, Phakedi is no longer the DGS of the applicant. This is possibly where the second applicant briefly features in this matter. After the incidents of 21 April 2017, the second applicant was elected to the “vacant” position of the DGS of the applicant.

[13] In my view, unless the Labour Court deals with an alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution, its exclusive jurisdiction arises from section 157 (1) of the Labour Relations Act[3] (LRA). Flowing from that jurisdiction is the specific powers emanating from section 158 of the LRA. Section 158 (1) (e) specifically approbates a power to the Labour Court to determine a dispute between a registered trade union and any one of the members about any alleged non-compliance with the constitution of the trade union. The applicant’s counsel rightfully conceded that although in advancing their case against Phakedi reliance is placed on the alleged non-compliance with the provisions of the applicant’s constitution, the powers of the Labour Court as spelled out above do not feature. It is absolutely perspicuous that the issue of the applicant and Phakedi is one of employer and employee as opposed to a member and trade union. For that matter, the applicant’s counsel is correct that the power to entertain the dispute derives from section 77(3) of the Basic Conditions of Employment Act[4] (BCEA).

[14] In addition, he somehow peripherally argued that the jurisdictional power is also located at section 8 of the LRA. I disagree. Section 8 affords certain rights to every trade union. If a dispute arise about the interpretation or application of any chapter or with specific reference to section 8 rights, the dispute must first be referred to conciliation. Once conciliation has failed, a party may approach this Court. It is common cause that this dispute was never referred for conciliation nor was it conciliated. Absent that, this Court lacks jurisdiction.

[15] It is so that in terms of section 158 (1) (a) (iv), this Court possess discretionary powers where appropriate to make a declaratory order. It is trite that where there is no concrete dispute of rights, this Court cannot give legal advice. In addition, where the declaratory relief would be ineffective, this Court will refuse to make a declaratory relief. Therefore, the issue of a declaratory relief is more related to the powers and not jurisdiction. However, the declaration of rights in this matter opens a window for the jurisdictional power under section 77 (3) of the BCEA. If the matter is not about an employment contract, then the concurrent civil jurisdictional powers of this Court may not be invoked. Inasmuch as the applicant submits that the employment contract between itself and Phakedi ended in April 2017, the fact that Phakedi disputes that, results in the matter falling under the section 77 (3) jurisdiction. Having said that, I shall proceed to consider the merits of this application under the rubric of section 77(3) of the BCEA and in the process, I may at my discretion invoke the declaratory powers where necessary or appropriate.

The Merits

[16] As alluded to above, the issue in this matter revolves around the events of 21 April 2017, more particularly on the fact that Phakedi was elected a DGS of SAFFTU. The applicant submit that three possible legal consequences flow from that fact, which affects the employment status of Phakedi. If any of those possibilities are upheld with the consequence that Phakedi lost his employee status, then an interdict must be issued as he shall not have a legal basis to be close to the applicant. Those three possibilities are:

16.1 Resignation;

16.2 Automatic termination;

16.3 And supervening impossibility

Resignation

[17] It is contended that by his conduct of accepting nomination and subsequent election to the position of the DGS of SAFTU, Phakedi effectively resigned. The general rule in employment law is that resignation must be clear and unequivocal[5]. In Sihlali v SABC Ltd[6], this Court per Van Niekerk J stated the law to be as follows:

“A resignation is established by a subjective intention to terminate the employment relationship and words or conduct by the employee that objectively viewed clearly and unambiguously evince that intention. The courts generally look for unambiguous, unequivocal words that amount to resignation.”

[18] The applicant in its founding papers employs ambiguous phrases like “FAWU agreed to release the First Respondent from the position so that he could take up a position of SAFTU”. Conspicuously absent from this allegation is an important allegation that Phakedi asked to be released. In motion proceedings, a party makes its case in its founding papers. Of course, earlier in its testimony the applicant presented what is clearly an inferential

reasoning. Having compared the constitution of the applicant with that of SAFTU, the deponent alleged that: “This means that when the First Respondent took up a full-time position with SAFTU, he could not and did not continue in the role of DGS of FAWU”. This is nothing but inferential reasoning employed to the events of 21 April 2017. A Court does not look for inferential evidence but look for unequivocal and unambiguous words.

[19] The unequivocal evidence presented in this Court appears in a letter, firstly written on the letterhead of the applicant, secondly addressed to the National Office Bearers of the Applicant, thirdly signed by Phakedi in his capacity as the DSG of the applicant and lastly dated 16 August 2017 – four months after the crucial date – 21 April 2017. In the letter Phakedi unequivocally and unambiguously states the following:

“I wish to reiterate that I am elected as SAFTU DGS, a position I know it’s a full time position, I however did so mainly because FAWU fully supported that I take the nomination and if elected occupy the position. I further wish to state that I have not been employed by SAFTU as yet and therefore remain an employee of FAWU at the least”

[20] Perspicuously, the above is an illustration, much early on that Phakedi has not resigned his position. Therefore, the legal argument that resignation was established lack vital organs to survive.

Automatic termination

[21] The argument in this regard is that by being elected to the position of the DGS at SAFTU, automatically the underlying employment relationship ended. This the applicant confidently raises by having regard to certain clauses of the applicant and SAFTU constitutions. Both constitutions place the position of DGS at a fulltime employee level. The argument being that Phakedi cannot juggle two balls as it were. This cannot be a valid argument. At a general level, there is nothing that prevents an employee to be employed by multiple employers, particularly in the same industry. Automatic termination does not occur in that manner. Clause 24.4 of the applicant’s constitution is destructive to this argument. It clearly provides as follows: “In the case where an official is removed from office such as Secretaries, he/she will still remain an employee of the union but no longer in the elected position which he/she held prior to the removal.”

[22] In terms of the constitution of the applicant, for a person to be eligible to be elected as a DSG, an office bearer position, that person must have been a full-time employee of the trade union. Thus Phakedi wore two hats. That of being an office bearer and that of being an official or employee. Termination of office bearer position does not automatically lead to the termination of an official or employee position. This Court has not been favoured with any employment agreement that contains an automatic termination clause. Absent that the argument of automatic termination must fail.[7]

Supervening impossibility

[23] On this point, the applicant merrily relies on a clause that deals with a vacancy in its constitution. In terms thereof, a member of the NEC, which Phakedi by virtue of his position – DSG – is, vacates the position if he is unable to perform his duties. In a perspicuous machination, the applicant seeks to develop an argument that the contractual concept of supervening impossibility had set in when Phakedi became “incapable” of performing his duties.

On the version of Phakedi he continued to perform his duties attached to the position.

[24] The concept of supervening impossibility simply means performance as per the terms of the contract becomes impossible. An example of impossibility is vis major. Self-created impossibility resulting from an act of one of the parties does not discharge the contract but leaves the party whose

act created the impossibility liable for the consequences.[8] Heavy reliance was placed on the decision of Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG[9]. This decision is unhelpful to the applicant as it dealt with the foreseeability of the impossibility of performance. On the facts of this case, there was simply no supervening impossibility. It was still possible for Phakedi on his version to still perform his duties. The fact that he still goes to the office and holds himself out as alleged as a DGS, simply negates an impossibility let alone a foreseeable one.

[25] In Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal[10], the law on supervening impossibility was clarified thus: -

[28] This brings me to the appellant’s defence of supervening impossibility of performance. As a general rule impossibility of performance brought about by vis major or casus fortuitus will excuse performance of a contract. But it will not always do so. In each case it is necessary to look to the nature of the contract, the relation of the parties, the circumstances of the case, and the nature of the impossibility invoked by the defendant, to see whether the general rule ought, in the particular circumstances of the case, to be applied. The rule will not avail a defendant if the impossibility is self-created; nor will it avail the defendant if the impossibility is due to his or her fault. Save possibly in circumstances where a plaintiff seeks specific performance, the onus of proving the impossibility will lie upon the defendant.

[30] … I am unpersuaded that the appellant discharged the burden of establishing that performance of its obligation in terms of the contract was rendered impossible.

[26] Clearly supervening impossibility arises as a defence. In this case, it has not been raised as a defence. Properly considered, the applicant is asserting a breach by Phakedi. In a breach of contract situation, an aggrieved party has an election to make. Either to reject the repudiation and sue for specific performance or accept the repudiation cancel and sue for damages. In employment law, where an employee is incapable of performing his or her duties, three consequences may unfold. Those are, his or her employment may be terminated for (1) misconduct – if it is shown that the employee is negligent; poorly performing or a person in dereliction of duties; for (2) incapacity and or for (3) operational requirements. It does not lie in the mouth of the applicant to state that an impossibility has arisen. Both parties to the contract must be able to observe the impossibility of performance before a discharge from the contractual obligations may set in. In a contract of employment the principle that counter-performance may be reduced in exchange for interrupted performance manifests itself in the rule that salary or wages may not be claimed for the period of absence due to vis major or casus fortuitous. If indeed there was a supervening impossibility the remedy for the applicant would be to withhold payment of salary and not to conveniently seek to be discharged from its' contractual obligations. Accordingly, in my view this argument falls flat on its face.

Conclusions

[27] All the three scenarios punted for by the applicant do not arise. The irresistible conclusion to arrive at is that until terminated on any of the recognisable grounds in law, Phakedi is still an employee of the applicant. Thus the only declarator to issue is that Phakedi is still an employee. As an employee, he has contractual rights, and his presence at the workplace is not unlawful. The interdict sought by the applicant cannot be issued. Decidedly, I leave open the question whether Phakedi is still an office bearer in terms of the constitution of the applicant, since under the section 77 (3) jurisdiction that question does not arise. In any event the constitution does provide a route on how the office bearer position may be ended. In summary, the application must fail in its entirety. What remains is the issue of costs.

The issue of costs

[28] Since this is a civil claim, the rule that costs must follow the results applies. I may state for completeness sake that, in my view, the applicant does no longer wish to have Phakedi as an employee and/or office bearer. This is one of those cases involving union factions which play themselves out in this Court. Clearly, by launching this application on such feeble grounds, the applicant was trying its luck. However, in the process of that trying they have put a man without a salary to enormous expenses. This matter jaded three judges of this Court. The judgment of Prinsloo J takes a dim view of the conduct of the applicant and its attorneys. If Phakedi was represented Prinsloo J was prepared to order punitive costs. In my view this application was frivolous and vexatious. As such even if this Court were to apply the provisions of section 162 of the LRA, a cost order was still warranted. Even though I take a dim view of Phakedi and his counsel on persisting with the two points of law despite a clear judgment of Prinsloo J, that does not disqualify Phakedi of his success costs. He achieved substantial success in this drawn out litigation.

[29] Recently in AMCU and others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) and others[11], the learned Justice Jafta had the following to say:

‘[33] …The rule that costs orders should not be granted in labour matters is based on the special relationship that exists between employees and employers. In most cases that relationship continues after the resolution of a dispute by a court. Here the circumstances are different. The employer-employee relationship has ended. Therefore, the usual rule that costs follow the result should apply.’

[30] Applying the above principle, costs should follow the results in this regard.

[31] For all the above reasons, the application cannot succeed.

[32] In the result the following orders are made:

Order

1. The application is heard as one of urgency.

2. It is declared that Phakedi is an employee of FAWU.

3. The applicant is directed to allow Phakedi all his contractual rights attached to his employment agreement.

4. The application is dismissed.

5. The applicant to pay the costs of this application.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Adv Morgan

Instructed by: Werksmans

Inc, Sandton

For the 1st Respondent: Adv M Skhosana

Instructed by:

Sibongile Mbatha.

[1] For the purposes of this judgment FAWU shall be referred to as the applicant. In the Court’s view, although the second applicant is an interested party in the outcome of these proceedings, his role in this litigation is minuscule.

[2] See: SABC v Keevy and others (J1652/19) [2020] ZALCJHB 31 (7 February 2020) at paragraphs 17-19 and DA and others v Premier for the Province of Gauteng and others (18577/2020) ZAGPPHC 119 (29 April 2020) at para 6.

[3] No. 66 of1995, as amended.

[4] No. 75 of 1997.

[5] See: English v Manulife Financial Corporation 2018 ONSC 5135 (CanLII) and Lottering v Stellenbosch Municipality (2010) 31 ILJ 2923 (LC).

[6] (2010) 31 ILJ 1477 (LC) at para 13.

[7] See: Khum MK and Bie Joint Venture (Pty) Ltd v CCMA and others (2020) 41 ILJ 1129 (LAC)

[8] See Quinella Trading (Pty) Ltd v Minister of Rural Development 2010 (4) SA 308 (LCC)

[9] 1996 (4) SA 1190 (A).

[10] [2008] All SA 255 (SCA)

[11] [2020] ZACC 8 (6 May 2020) at para 33.