Inqubelaphambili Trade Union Administrator NO v Mfebe and Others (J 614/2021) [2021] ZALCJHB 154 (22 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J 614/2021

In the matter between:

INQUBELAPHAMBILI TRADE UNION

ADMINISTRATOR N.O

Applicant

and

WILBER MFEBE

First Respondent

WILSON MUTWANAMBA

Second Respondent

MBEKISENI MVUBU

Third Respondent

REGISTRAR OF LABOUR RELATIONS

Fourth Respondent

Enrolled: 17 June 2021

Delivered: 22 June 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 22 June 2021.

JUDGMENT

PRINSLOO, J

Urgency

[1] The Applicant (also referred to as the administrator) approached this Court on an urgent basis for relief I will fully deal with infra.

[2] The Respondents took issue with urgency. I have considered the facts and arguments placed before this Court in support of and in opposition of urgency and I have exercised my discretion to deal with this matter on an urgent basis.

Background facts

[3] This matter has a lengthy history and this application is yet another brick in the wall. The sequence of events is not only relevant to the merits of this application, it also provides context.

[4] On 8 November 2019 the Fourth Respondent (the Registrar) published notice R 1427 in the Government Gazette, in terms of which the Registrar stated his intention to cancel the Inqubelaphambili Trade Union (ITU) as a registered trade union as it has ceased to function in terms of its constitution and because it is an association for gain of individuals. ITU and other interested parties were invited to make written representations as to why the union’s registration should not be cancelled.

[5] The Registrar subsequently approached this Court for an order to place the ITU under administration in terms of the provisions of section 103A of the Labour Relations Act[1] (LRA) and an order to that effect was granted on 12 August 2020. The aforesaid application followed from a Court order that was issued on 24 July 2020, directing the Registrar to bring an application to place the ITU under administration and to appoint an administrator.

[6] In terms of the Court order of 12 August 2020, an administrator was appointed, with specific terms of reference applicable. The Court order also directed the administrator to convene a national congress within six months of the date of the Court order.

[7] It is evident from the terms of reference that the administrator was granted powers to inter alia take immediate control of, and in the place of the president of ITU, and / or the general secretary and / or national office bearers and / or national executive committee (NEC) or any other person entitled to perform such functions, to manage the affairs of ITU, together with all assets and interests relating to the business and affairs of the union.

[8] Towards the end of February 2021 the administrator approached the Court for an extension of the six month period within which to convene the national congress, until 2 September 2021. An order to that effect was granted on 4 March 2021.

[9] It is unfortunate that when the urgent application was filed, it was filed without the annexures referred to in the founding affidavit, which were relevant and of material importance as they included the ITU’s constitution and the administrator’s terms of reference. The application was argued without this Court having had sight of the annexures. The annexures were only made available to me after the hearing of the matter, which resulted in a delay in finalising this judgment.

The directive to convene a national congress

[10] ITU’s constitution (the constitution) provides that the union’s supreme governing body shall be the national congress, which shall consist of the NEC and 66,7% of union members entitled to vote. The national congress shall be convened once every calendar year. The primary business of the national congress shall be the nomination and election, by ballot, of members of the NEC, the consideration of reports, the formulation of policy, the discussion of matters as per the agenda and the consideration of appeals.

[11] The constitution provides for candidates for the position of office-bearers and officials on the NEC to be nominated and seconded by members with voting rights at the national congress. In the event that only one candidate is nominated for a position, such candidate shall be regarded as having been duly elected to that position, should there be two candidates, a ballot of delegates shall be held and the candidate who receives the most votes shall be duly elected. Should there be three or more candidates, two

or more ballots shall be held so that the candidate who receive the least votes in each ballot shall be eliminated from the next ballot.

[12] The administrator was directed to convene a national congress, within six months from the Court order of 12 August 2020, which period was extended in March 2021 to 2 September 2021.

[13] The administrator, in respect of the convening of the national congress, indicated that 66.7% of the members of ITU entitled to vote, would presuppose a gathering of at least 3000 people. He submitted that in the current climate caused by the Covid-19 pandemic and the regulations issued to govern the gathering and movement of people, the gathering of at least 3000 people poses a challenge.

[14] It is common knowledge that not only ITU or South Africa, but in fact the entire world faces an unprecedented crisis and an unknown

restriction on what was known to be normal and what used to be taken for granted. In South Africa a national state of disaster was declared on 15 March 2020[2], which state of disaster was subsequently extended on numerous occasions. The national state of disaster was extended once again on 30 May 2021 and is still in existence.

[15] On 15 June 2021 amended regulations were issued in terms of section 27(2) of the Disaster Management Act[3] which placed the country at adjusted alert level 3. The movement of persons has been restricted and gatherings limited in attendance to 50 persons or less for indoor venues and 100 persons or less for outdoor venues. It is further common knowledge that Gauteng is officially declared to be currently experiencing a third (and possibly the worst) wave of Covid-19 infections, with hospitals and medical facilities under severe strain.

[16] It is in this context that the administrator approached this Court. The convening of the national congress, as per the Court order of 12 August 2020 and extended subsequently, is of utmost importance. On the other hand, the limitations imposed by the regulations issued in terms of the Disaster Management Act, are a reality that must be adhered to and compliance with the health and safety protocols is paramount.

[17] As an alternative, and in view of the current pandemic and restrictions, the administrator intends to proceed with the national congress by way of a nomination and voting process by means of polling stations over a predetermined period of time, similar to a process followed by the Independent Electoral Commission (IEC) during municipal and general elections. The administrator appointed Mr Norman Coetzee, who had previously played a role in national electoral processes and who has the necessary experience to act as an independent electoral officer. This will ensure the facilitation and smooth running of the nomination and election process, whilst at the same time there will be compliance with the current Covid-19 protocols.

[18] The administrator intends to split and decentralise the national congress into two components, being part 1 nominations and part 2 elections. The process of nomination would be completed first, where after the election will be held at a future date, with the required written notification and with compliance with the timeframes set out in the ITU constitution.

The urgent application

[19] The Applicant approached this Court for relief and stated that the primary relief sought is an order to ensure that the nomination conference and the subsequent elective conference could continue uninterrupted.

[20] In my view the relief sought by the Applicant in the main, is twofold.

[21] Firstly, the administrator seeks an order to interdict the First to the Third Respondents (the Respondents) from interfering with the process of the administrator and the undermining of his authority in the execution of his duties, as per the powers vested in him per the Court order of 12 August 2020 and the terms of reference issued under the same case.

[22] In the founding affidavit the administrator made a number of serious averments in support of the relief he seeks, as set out supra. The administrator stated inter alia that “I can at the outset mention that the respondents have, since my appointment, acted in blatant disregard of my office as administrator and / or obstructed the performance of my duties, in support of an agenda which can only be assumed, however is not clear.” In their opposing affidavit the Respondents’ response to this averment is that “This paragraph is noted safe (sic) to state..” and the response provided is in respect of the fact that they were elected in their positions at a special national congress. The

averment that the Respondents acted in disregard of the administrator’s office or obstructed the performance of his duties, is not disputed.

[23] The administrator further stated that there were allegations that the Respondents are part of a range of concerted efforts to destabilise the ITU and the peaceful convening of the NEC election process under the prevailing pandemic conditions. This statement is responded to as being ‘noted’ by the Respondents.

[24] The administrator referred to letters the Respondents wrote on 1 June 2021 to the office of the Director General of the Department of Employment and Labour and the Chairperson of the Legal Practice Council wherein they effectively subrogated his appointment, extended allegations and attacks towards the integrity of the nomination and election process, labelling it as unconstitutional and a blatant abuse of the electoral process, which impact directly against the rights of the ordinary ITU member to vote and described the appointment and subsequent activities of the administrator as an extension of corrupt activities. The administrator expressed his concern about the Respondents’ attack against him and the integrity of the elections, as it would prejudice his ability to ensure that they happen. All these allegations are responded to with a mere “noted”.

[25] In essence the administrator stated that should the Respondents’ conduct continue, as it has over the past few months, it will in all probability interfere with or halt the nomination and election process. Once again, these allegations were met with a response of “noted”.

[26] I am satisfied that the administrator has put sufficient evidence before this Court to show that the Respondents acted in a manner that may interfere with or undermine him in the execution of his duties, as per the powers vested in him by an order of this Court.

[27] Secondly, the administrator seeks an order that the nomination conference and the subsequent elective conference be attended by appointed delegates and not all members of the union, so as to ensure that they comply with the prevailing Covid-19 protocols.

[28] The administrator indicated the reasons why he intends to provide for an alternative way to conduct the nomination and elective conferences and he stated that this manner of holding elections is strictly speaking outside the constitution, a dogmatic application of the constitution would not meet the challenges brought about by the Covid-19 pandemic.

[29] Mr Manchu, for the Applicant, submitted in his argument that there will be no deviation from the constitution, but in fact the administrator is ordered by Court to convene a national congress and in doing so, he will not only give effect to the Court’s order, but also to the provisions of the constitution.

[30] A consideration of the constitution shows the manner in which nomination and election of candidates for positions of office bearers and officials on the NEC should be done. Obviously the constitution did not make provision for a pandemic such as the present. It is so that the constitution does not provide for the national congress to be attended by delegates only, but such is also not specifically prohibited in the constitution.

[31] I am unable to find any specific provision in the constitution that prohibits the manner of nomination proposed by the administrator, nor is there any specific clause or prescript that would be contravened if the nomination and election conferences are to be held in the manner proposed by the administrator.

[32] It is evident that the administrator is ordered by this Court to convene a national congress and that he is empowered in the terms of reference to take immediate control of, and in the place of the president of ITU, the general secretary, national office bearers, the NEC or any other person entitled to perform such functions, to manage the affairs of ITU relating to the business and affairs of the union.

[33] The administrator has been directed by an order of Court to convene a national congress and he should be allowed to act within the powers bestowed upon him, within the ambit of what the constitution provides for.

[34] I am satisfied that a case had been made out for the relief in the main sought by the administrator.

Costs

[35] The last issue to be decided is the issue of costs. Insofar as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness.

[36] In Zungu v Premier of Kwa Zulu-Natal and Others[4] the Constitutional Court confirmed the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[37] The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. This is a case where the Court has to strike a balance.

[38] Mr Manchu submitted that the Respondents should be ordered to pay the Applicant’s costs as it was their conduct that caused and necessitated the filing of this urgent application. He argued that ITU’s members should not be burdened with the costs of this application, but instead the Respondents should be ordered to pay same. These arguments are not without merit.

[39] Mr Mfebe on the other hand submitted that they were elected as members of the NEC on 22 February 2020, there was no compliance with clause 14 of the constitution to remove them as office bearers and as they still believe that they hold their elected positions, they should not be punished with a cost order.

[40] I have considered the versions from both sides and it is clear to me that the ITU is struggling, that the relationships within the union are strained and could even be described as acrimonious, for reasons that appear from the affidavits placed before me. Although this is a matter where a cost order would be appropriate, it may not be in the interest of justice to grant such an order. The administrator is expected to carry out his duties, as per an order of this Court (and the terms of reference) and he should be allowed by the Respondents to do so. A cost order at this point may contribute towards an even more strained relationship.

[41] The Respondents are expected to adhere to orders of this Court, including the one issued in this application. They should appreciate that they were treated with leniency when no cost order was granted against them. But let this be a stern warning to the Respondents – should they fail to adhere to the orders of this Court, should they disrupt the administrator in the execution of his duties or should they interfere in any manner whatsoever with the process of the administrator, which may cause the administrator to approach this Court again in respect of the same issues, they should not expect any leniency from this Court in future with regard to the issue of costs.

[42] In the premises I make the following order:

Order:

1. The application is urgent and any non-compliance with the Rules relating to time periods and service is condoned;

2. The First to Third Respondents are interdicted and restrained from interfering with, undermining or negatively impacting in any manner whatsoever, the process of the administrator or his authority in the execution of his duties, as per the powers vested in him, per the Court order of 12 August 2020 and the terms of reference issued in terms thereof;

3. The administrator is permitted to convene a national congress and to conduct elections, at a nominations and elective conference or congress, in a manner that will give effect to the Constitution of the Inqubelaphambili Trade Union, and which will ensure that the elections comply with the prevailing Covid-19 regulations and restrictions.

4. Pending the outcome of an elective congress, and unless so elected at such congress, the First to Third respondents are interdicted and restrained from representing, holding themselves out or in any manner stating that they are NEC members of the Inqubelaphambili Trade Union and/or representative officials of the Inqubelaphambili Trade Union.

5. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Representatives:

For the Applicant:

Advocate T Manchu

Instructed by:

Lovius Block Inc Attorneys

For the First to Third Respondents: Mr W Mfebe in person

[1] Act 66 of 1995, as amended.

[2] Publication in Government Notice No 313 of 15 March 2020, under section 3 of the Disaster Management Act No 57 of 2002.

[3] Act 57 of 2002.

[4] (2018) 39 ILJ 523 (CC) at para 24.