Mokhonoana and Others v Morifi and Others (J1246/21) [2021] ZALCJHB 440 (2 December 2021)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

CASE NO: J1246/21

Not Reportable

Not of interest to other judges

Revised

02/12/2021

In the matter between:

MOKHONOANA THINTA ELIAS

First Applicant

BONGAZA MANGO

Second Applicant

MOLEFHE NEO

Third Applicant

MANDLA MASHININI

Fourth Applicant

MAOTO ISAAC PHADIME

Fifth Applicant

JAROME BOCK

Sixth Applicant

CLAUDE MARKS

Seventh Applicant

ELIAS MIGA

Eighth Applicant

PIETER TOPP

Ninth Applicant

And

KOENA RAYMOND MORIFI

First Respondent

HALALISANI GUMEDE

Second Respondent

JOEY HECTOR

Third Respondent

KAPTEIN JOHANNES

Fourth Respondent

MABUNDA MARIAM

Fifth Respondent

TSHISEVHE JOSEPH

Sixth Respondent

PAWUSA

Seventh Respondent

Date of judgment:

JUDGMENT

VAN NIEKERK J

[1] The applicant approaches the Court on an urgent basis, seeking the following relief:

1.1 Declaring that:

1.1.1 "the National Executive Committee ("NEC") meeting held on 16th and 17 September 2021 was unconstitutional (in terms of the Constitution of PAWUSA), invalid and of no force and effect;

1.1.2 the purported decisions of the Respondents in the meeting of the NEC meeting held on 16th and 17th September 2021 were unconstitutional (in terms of the Constitution of PAWUSA) invalid and of no force and effect and are, accordingly be set aside;

1.1.3 the purported decisions of the Respondents that Mokhonoana Thinta Elias, the "President" of PAWUSA be placed on suspension which was taken at the meeting of the NEC held on 16th and 17th September 2021 and that disciplinary action be taken against him are invalid, unconstitutional (in terms of the Constitution of PAWUSA) and of no force and effect and accordingly be set aside;

1.1.4 all other decisions taken at, and all consequences that flowed from and actions that were taken consequent upon the meeting of NEC

held on 16th and 17th September 2021 be invalid, unconstitutional (in terms of the Constitution of PAWUSA) and of no force and effect and accordingly be set aside;

1.2 Reviewing and setting aside the purported decision taken by the Respondents at the meeting of the NEC held on 16th and 17th September 2021 to place Mokhonoana Thinta on suspension;

1.3 The Respondents, except the seventh Respondent be ordered to pay costs of this application jointly and severally the one paying the other to be absolved on an attorney and client scale.

1.4 Further and/alternative relief”.

[2] The application was opposed on a number of grounds, including what the respondents asserted to be a lack of jurisdiction. This point was upheld, on the basis that section 158(1)(e), on which the applicants

sought to found jurisdiction, applied to a dispute between a trade union on the one hand, and one or more of its members on the other. In the present instance, it was not in dispute that the application concerned a dispute between factions within a trade union, i.e. a dispute between members inter se. In this regard, the court made reference to Seatlholo and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union and Others (J131/16, [2016] ZALCJHB 39) where this principle was recognized and applied.

[3] In the present application, the applicant contends that the facts are distinguishable from Seatholo's case, and that the court's decision stands in conflict with Chauke & others v FAWU & Others (C 329/15). The applicant also contends that the court erred by not finding that the respondents were not properly before the court since they had failed to file the answering affidavit within the prescribed time limit.

[4] I deal first with the latter issue. There is no record in the court file of any objection to the late filing of the answering affidavit. The parties came before court ready to argue the matter on the papers

as they stood. It is not open to the respondent to object to the late filing of the answering affidavit at the stage of an application for leave to appeal. In any event, the point raised by the respondents went to the jurisdiction of the court. The court was obliged to satisfy itself, with or without any answering affidavit, whether it had jurisdiction to entrain the claim that serves before it. This obligation arises before any consideration of the merits of the case.

[5] In so far as Seatholo is concerned, that decision is on all fours with the judgment that is the subject of this application. Chauke's case concerned an application in which the applicants claimed that the trade union (FAWU) had attempted to expel them as members and office bearers and that in doing so, the union's NEC had acted ultra vires its powers. The judgment specifically records, tracking the wording of section 158 (1) (e), that the dispute was one between a registered trade union and its members, about any alleged

non-compliance with the union's constitution. In the present instance, the applicant made no claim to the effect that their dispute was one with the trade union. Indeed, in the founding and replying affidavits, the applicants state in no uncertain terms that their dispute was not against the seventh respondent (PAWUSA).

[6] In regard to costs, the applicants sought costs on a punitive scale and cannot now be heard to complain that they were ordered to pay the costs of the proceedings. The court has a broad discretion to make orders for costs, and this is not one of those matters that concern an employee seeking to enforce his or her rights against an employer, where in the interests of access to justice, the court is ordinarily reluctant to make any order as to costs. In the present instance, the applicants persisted with their application after receipt of the respondents' heads of argument where the point regarding the court's lack of jurisdiction was clearly articulated. In regard to the present application, the applicants have failed to meet the threshold for leave to appeal. They have also failed to make written submissions in support of their application as required by clause 15.2 of the practice manual. In these circumstances, the application stands to fail, and the requirements of the law and fairness require that the application be dismissed, with costs.

I make the following order:

1. Leave to appeal is refused, with costs.

Andre van Niekerk

Judge of the Labour Court of South Africa.