Mahlangu v South African Transport and Allied Workers Union (J 102/2023) [2023] ZALCJHB 180 (5 June 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 102/2023

In the matter between:

SOLOMON MAHLANGU Applicant And SOUTH AFRICAN TRANSPORT AND ALLIED WORKERS UNION Respondent

Heard: 26 January 2023

Order: 26 January 2023

Date of Reasons: 5 June 2023

REASONS FOR ORDER

PRINSLOO J

Introduction

[1] On 26 January 2023, this matter served before Court as an opposed urgent application.

[2] After hearing the submissions and considering the merits of the application, the following order was made:

‘1. The application is dealt with on an urgent basis;

2. The Applicant’s suspension of 20 January 2023 is declared ultra vires the provisions of the Respondent’s constitution;

3. The Respondent is to pay the Applicant’s cost on a party and party scale.’

[3] The Respondent’s attorneys subsequently requested reasons for the order granted. I had requested the Court proceedings to be transcribed and the transcript was received at the end of April 2023.

Background

[4] The Applicant brought an urgent application wherein he sought declaratory relief regarding his suspension. The relief sought was limited in that it was premised on the provisions of section 158(1)(e) of the Labour Relations Act[1] (LRA) and he only sought a declaratory order.

[5] The Applicant is the Respondent’s provincial secretary for Mpumalanga. The factual matrix is that on 19 January 2023, the Applicant, on behalf of the Mpumalanga Provincial Office Bearers (POB) sent a detailed report on the programme of action to the Respondent’s head office. It related to the consultation with members of the union regarding a double deduction resolution and specified the dates, time and venue of the consultation.

[6] Also on 19 January 2023, the Respondent’s head office addressed a letter to the Applicant wherein it was inter alia stated that the National Office Bearers (NOB) had convened a meeting, that they were of the view that the Applicant undermined and disrespected the leadership and instructions of the NOB and that it was viewed as serious misconduct. The Applicant was requested to provide reasons as to why he should not be suspended by close of business on 20 January 2023.

[7] The Applicant provided reason, as requested, by 20 January 2023. He was however suspended on 20 January 2023 and as such, he was suspended from all union activities and he was barred from communicating with any SATAWU employees, officials or members.

[8] On 24 January 2023, the Applicant approached this Court for relief on an urgent basis.

Urgency

[9] The Applicant submitted that on 23 January 2023, his attorney had addressed a letter to the Respondent, requesting that the letter of suspension be withdrawn as the suspension was not in accordance with the Respondent’s constitution and therefore unlawful.

[10] The letter of suspension was not withdrawn and the Applicant approached this Court for relief.

[11] The Applicant submitted that he has a clear right to the relief he seeks, but even more so, he has no alternative remedy. The suspension is unlawful and might be prolonged for an indefinite period, which will not be in the interest of the union’s members. He holds the elected position of provincial secretary and he has to promote and protect the interests of the members, who elected him to the said position. He is a leading figure in Mpumalanga in all actions, activities and engagement with employers.

[12] In deciding whether a matter is to be adjudicated on an urgent basis, the court exercises a discretion.

[13] In deciding whether a matter is urgent, two considerations are involved. The first is whether the reasons that make the matter urgent have been set out and the second is whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent.

[14] One of the fundamental considerations in any assessment of urgency is the ability of the applicant to obtain the relief it seeks in the ordinary course. The Applicant has approached this Court in terms of the provisions of section 158(1)(e) of the LRA. He has no alternative remedy, as only this Court can determine a dispute as provided for in the said section. It is a matter of public record that the ordinary opposed motion roll is full until the middle of 2024. If this application is to be enrolled and adjudicated in the normal course, the relief sought will become academic. Evidently, the Applicant will not get relief in the ordinary course.

[15] In my view, it is in the interest of justice that a dispute about the alleged non-compliance with a trade union’s constitution be adjudicated sooner rather than later. I have considered the issue of urgency and in exercising my discretion, this matter was decided on an urgent basis.

The relief sought

[16] The relief sought was limited in that it was premised on the provisions of section 158(1)(e) of the LRA and he only sought a declaratory order.

[17] Section 158(1)(e) provides that the Labour Court may determine a dispute between a registered trade union and any one of the members thereof about any alleged non-compliance with the constitution of the trade union.

[18] The Applicant’s case is that:

i. The Respondent’s constitution does not provide for the precautionary suspension of an elected official;

ii. In terms of clause 42.3.3, read with clauses 42.3.4.3 and 42.3.4.4, any suspension to be imposed on an elected official must be preceded by a specific due process; and

iii. The Applicant has a right not to be disciplined by the NOB in terms of clause 27.4.1.16 of the constitution.

[19] Clause 27.4 of the Respondent’s constitution sets out the powers and functions of the NOB and clause 27.4.1.16 provides specifically that the NOB has the power “to institute disciplinary action against non-elected officials and staff, in accordance with the policies and procedures of the union”.

[20] It is evident from the provisions of the constitution that the NOB has the power to take disciplinary action, but that power is limited and defined and it extends only to non-elected officials and staff.

[21] It is common cause that the Applicant is not a “non-elected official” or “staff”. He is an elected provincial secretary and therefore he falls outside of the ambit of the categories of persons that the NOB has the power to institute disciplinary action against.

[22] There is further no provision in the Respondent’s constitution which provides that the NOB is empowered to suspend an elected official, not even on a precautionary basis. Once again, the Applicant is an elected official and absent any empowering clause in

the constitution, the NOB does not have the power to suspend him.

[23] Clause 42 of the union’s constitution provides for the discipline of inter alia elected officials. Clause 42.3 provides for the establishment and powers of disciplinary committees. The CEC and PEC must establish disciplinary committees and the PEC disciplinary committee disciplines inter alia elected officials. Clause 42.3.4 provides that if the disciplinary committee believes that the charge against an elected official has been satisfactorily proven, it may, in terms of clauses 42.3.4.3 and 42.3.4.4, suspend the elected official for a definite period from his or her position or suspend him or her from membership or his or her position of employment in the union.

[24] It is evident from these clauses that there is no provision made in the union’s constitution for the precautionary suspension of an elected official and that the NOB has no power to discipline or suspend an elected official, such as the Applicant. The suspension and disciplining of an elected official fall within the powers of the PEC disciplinary committees.

[25] The Respondent filed an opposing affidavit wherein it did not address the Applicant’s averments regarding the non-compliance with the union’s constitution. Instead, the Respondent’s case was that the union’s disciplinary code provides for suspension pending a disciplinary hearing. The Respondent submitted that the Applicant was suspended in terms of the disciplinary policy and none of the averments in respect of the non-compliance with the union’s constitution had been addressed.

[26] The Applicant has not approached this Court to adjudicate his suspension in terms of the Respondent’s disciplinary code and that was not the dispute for this Court to decide. In any event, such a dispute would raise jurisdictional issues.

[27] The Applicant approached this Court in terms of section 158(1)(e) and pleaded his case as one where there was no compliance with the provisions of the Respondent’s constitution. Perusing the specific clauses in the constitution, it was evident that the constitution did not provide for precautionary suspension or gave the NOB the power to discipline or suspend an elected official. Instead of addressing these issues, the Respondent did no more than to plead its disciplinary code, which was not relevant to the issues this Court had to decide and to the extent it could have been relevant, the Respondent failed to show that the constitution permitted the suspension of an elected official in terms of a disciplinary code.

[28] During argument, I invited Mr Pela for the Respondent to direct this Court to where the union’s constitution provided for the suspension of an elected official. The following transpired:

‘COURT: Where does the constitution provide for the suspension because in the, in the constitution something else entirely.

RESPONDENT REP: Yes, yes M’Lady. M’Lady the issue the crux of the matter is the misconduct that happened as a result of the letter that the applicant wrote to the leadership and the leadership viewed that as misconduct and the misconduct is being regulated, M’Lady, by the disciplinary policy of the respondent and clause 6.2, M’Lady, of the disciplinary policy of the respondent, gives the respondent the powers to suspend the, the applicant pending the investigation and the …[indistinct] of the disciplinary process.

COURT: Yes, but the, the constitution does not give him that power. If you look 27.4 of the constitution, powers and functions of the NOB, and then if you go 27.4.1.16 to institute disciplinary action against non-elected officials and staff in accordance with policies and procedures. The constitution does not allow the NOB to suspend or institute disciplinary action against the elected officials. That is the issue, the applicant is an elected official.

RESPONDENT REP: That is correct, M’Lady.

COURT: And it says, look at the constitution, the NOB is not empowered in terms of the constitution.

RESPONDENT REP: M’Lady when you look at, at the disciplinary code.

COURT: No, no this is, this issue is about the constitution so let us focus on the constitution and show me in the constitution where that constitution allows the NOB to suspend an elected official.

COURT: I asked you go to paragraph 31 of the applicant’s founding affidavit, you filed an answering affidavit where you did not respond per paragraph, you gave a very generic response. Mr Tooka is saying well you did not respond to the merits of the case but be that as it may, paragraph 31 says:

“The constitution does not provide for pre-cautionary suspension for an elected official.”

I am inviting you to show me in the constitution where does it provide for the suspension of an elected official?

RESPONDENT REP: M’Lady, it does not expressly clearly says that.

[29] The Respondent’s constitution did not provide for precautionary suspension or give the NOB the power to discipline or suspend an elected official, wherefore this Court found that the Respondent acted ultra vires the powers given in the constitution and that is why the Applicant’s suspension was declared ultra vires the provisions of the union’s constitution.

[30] Clause 42 of the union’s constitution provides for the discipline of elected officials and this judgment should not be interpreted or understood to say that the union has no right or is powerless to discipline elected officials. The Respondent has that right, which right must be exercised in terms of the provisions of its constitution. This judgement is to be understood on the very limited and specific grounds on which the Applicant has approached this Court for relief.

Costs

[31] The last issue to be decided is the issue of costs.

[32] In so far 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.

[33] The requirement of law has been interpreted to mean that the costs would follow the result. In considering fairness, the conduct of the parties should be taken into account and mala fides, unreasonableness and frivolousness are factors justifying the imposition of a costs order.

[34] Mr Tooka for the Applicant submitted that a cost order would be justified because the Applicant’s attorneys had sent a letter

to the Respondent prior to the filing of this application to state why the suspension was unlawful and the Respondent was urged to withdraw the Applicant’s suspension. The Applicant did not receive an acknowledgement of receipt, which forced him to proceed with this application. The Applicant was seeking a punitive cost order. The fact that the Applicant would seek cost against the Respondent was communicated in the letter of 23 January 2023 as well as the Applicant’s notice of motion and founding affidavit. Mr Tooka further submitted that this was the fourth application of the same nature that had been brought against the Respondent and in its answering affidavit, the Respondent did not respond to the merits of the application at all, but instead, put up a very vague answer.

[35] Mr Pela submitted that there should not be a cost order against the Respondent as the Applicant was still receiving his benefits and it was not necessary to bring this application.

[36] In Zungu v Premier of the province of KwaZulu-Natal and others,[2] the Constitutional Court confirmed that 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] This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The generally 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.

[38] In Public Servants Association of SA on behalf of Khan v Tsabadi NO and others,[3] it was emphasized that:

‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[39] In my view, this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success. This application was indeed necessary as the Respondent acted in contravention of its own constitution and notwithstanding the fact that opposing papers were filed, no real opposition to the merits of this application was put forward.

[40] The conduct of the Respondent forced the Applicant to approach this Court for relief, and fairness dictates that the Applicant cannot be expected to endure enormous costs to institute this litigation.

[41] It was for the aforesaid reasons that the order was granted on 26 January 2023.

Connie Prinsloo

Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] (2018) 39 ILJ 523 (CC) at para 24.

[3] (2012) 33 ILJ 2117 (LC) at para 176.