National Entitled Workers Union (NEWU) v Minister of Labour and Others (JA47/06) [2009] ZALAC 15; (2010) 31 ILJ 574 (LAC) (2 December 2009)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA (HELD AT JOHANNESBURG)

CASE NO: JA47/06

In the matter between:

NATIONAL ENTITLED WORKERS' UNION ….....................Appellant

(NEWU)

and

THE MINISTRY OF LABOUR ….......................................First Respondent

THE MINISTER OF LABOUR

(M M S MDLADLANA) …..........................................Second Respondent

DEPARTMENT OF LABOUR ….......................................Third Respondent

REGISTRAR OF LABOUR RELATIONS (J T CROUSE) ….............................................................Fourth Respondent

DEPUTY REGISTRAR OF LABOURRELATIONS

….................................................................Fifth Respondent

JUDGMENT

WAGLAY ADJP

Introduction

[1] This is an appeal against the decision of the Labour Court to discharge with costs on an attorney and client scale a rule granted

by the Labour Court on 15 December 2005 to set aside the Notice published in the Government Gazette headed "CANCELLATION OF REGISTRATION OF A TRADE UNION". The Labour Court simultaneously granted a stay of proceedings under Labour Court case numbers. J1758/05; J2122/05 and JR1002/05 with costs.

[2] Leave to appeal against the whole of the judgment including the orders for costs was granted on petition to the Judge President of this Court after the Labour Court refused leave to appeal.

Registered Trade Unions

[3] Before dealing with the factual background it is appropriate to set out the requirements set out by the Labour Relations Act no 66 of 1995 (hereinafter the "LRA") to regulate the registration, and once registered, to maintain the registration of a Trade Union.

[4] Sections 95 and 96 of the LRA sets out the requirements for, and the registration of a trade union. Once a trade union is registered the LRA confers a number of rights upon it and also imposes a number of obligations. The obligations are set out in sections 98; 99; 100; and, 101 of the LRA. In terms of these sections a trade union once registered must insure that its books of accounts are properly maintained and annually audited; the books of accounts must be supported with the necessary vouchers; and the registered trade unions' financial statements and its auditor's report must be available to its members for inspection.1

[5] A registered trade union must also maintain a list of members and minutes of its meetings. Ballot papers of every ballot it has held must be retained for a period of time.2 Where a registered trade union resolves to amend its constitution or effects changes to its name, in terms of its constitution, it must forward a copy of the resolution to the Registrar as provided for in section 101 of the LRA. The Registrar must, if satisfied that the amendments and/or changes meet the requirements for registration in the LRA, register the amendments.3

[6] Furthermore in terms of s100 of the LRA a registered trade union must provide the Registrar:

"(a) by 31 March each year, a statement, certified by the secretary that it accords with its records, showing the number of members as at 31December of the previous year and any other related details that may be required by the registrar;

(b) within 30 days of receipt of its auditor's report, a certified copy of that report and of the financial statements;

(c) within 30 days of receipt of a written request by the registrar, an explanation of anything relating to the statement of membership, the auditor's report or the financial statements;

(d) within 30 days of any appointment or election of its national office-bearers, the names and work addresses of those office-bearers, even if their appointment or election did not result in any changes to its office­bearers; and

(e) 30 days before a new address for service of documents will take effect, notice of that change of address. "

[7] The Registrar is an important functionary in terms of the LRA and is tasked, inter alia, with ensuring due compliance by registered trade unions of the obligations imposed upon them by the LRA.4 The Registrar is defined in the LRA as "the registrar of Labour Relations " and it is the fourth respondent in this appeal.

[8] Finally, sub-sections (2A) and (2B) of section 106 set out the procedure that may be invoked by the Registrar to cancel the registration of a Trade Union. The two sub-sections provide as follows:

"(2A) The registrar may cancel the registration of a trade union or employers' organisation by removing its name from the appropriate register if the registrar-

"(a) is satisfied that the trade union or employers' organisation is not, or has ceased to function as, a genuine trade union or employers' organisation, as the case may be; or

(b) has issued a written notice requiring the trade union or employers' organisation to comply with sections 98, 99 and 100 within a period of 60days of the notice and the trade union or employers' organisation has,despite the notice, not complied with those sections.

(2B) The registrar may not act in terms of subsection (2A) unless

the registrar has published a notice in the Government Gazette at least 60 days prior to such action-

(a) giving notice of the registrar's intention to cancel the registration of the trade union or employers' organisation; and

(b) inviting the trade union or employers' organisation or any other interested parties to make written representations as to why the registration should not be cancelled. "

[9] In terms of sub-sections (2A) and (2B) of s106 of the LRA, the procedure that the Registrar is required to follow in the event that it seeks to cancel the registration of a trade union (or a registered employers' organization) is that it must publish a notice in the Government Gazette in which Notice it:

(i) expresses an intention to cancel the registration of thetrade union;

(ii) sets-out the reasons why it intends to cancel theregistration of the trade union;

(iii) calls upon the affected trade union and "any otherinterested parties " to make representations to it withina period of not less than 60 days from the date of thepublication of the notice in the Government Gazzette,as to why the registration of the trade union should notbe cancelled; and,

(iv) requires that the representations must be made inwriting.

[10] The reasons that the Registrar sets-out in the Notice must however be limited to those set out in ss(2B) of s106 and these are: (i) that the Registrar is satisfied that the trade union "is not, or has ceased to function as a genuine trade union"; or, (ii) that despite notice to comply, the trade union has failed to comply with sections 98; 99; and 100 of the LRA.The requirements set out in (ii) above include, inter alia, having its books of accounts properly maintained and audited annually; keeping proper records of its members; keeping proper records of its meeting and providing the Registrar with the information and documents in such form and at such time as set out in s100 of the Act.5

[11] Where representations are made, the Registrar must consider them and decide whether to proceed with the intended cancellation. Once the Registrar has made the decision to cancel the registration of a trade union all that is required of him is to remove the name of the affected trade union from the "appropriate register" and to advise the trade union thereof.

Factual Background

[12] Against the background of the provisions of the LRA, on 1 September 2005, the Registrar, wrote to the secretary of the National Entitled Workers' Union (NEWU), a registered trade union and the appellant in this matter (hereinafter referred to as the Union). The letter records the following:

"I refer you to the union's audited financial statements for the 2002/2003/2004financial years (copies attached).

I have studied the statements and it would be appreciated if you could provide me with an explanation as to the following:

1. Compensation received from employers:

1.1 2002

Received R149, 258 Paid out R71, 948

1.2 2003

Received R447 886 Paid out R259 683

1.3 2004

Received R129, 566

Paid out R118, 624

Please explain the discrepancies between amounts received and amounts paid.

2. I have noted that amounts of R31 378 and R12 142 (2003 and 2004 respectively) were used for playing Lotto. Please furnish this office

with the motivation behind this and with the minutes of a meeting where approval was given for these transactions. Also furnish this office with contact details (name telephone number and work address) of each and every member present at this meeting. Also indicate in terms of which provision of the constitution this was done.

3. M.D. Maluleke has received unsecured loans as follows:

R73 1 46 (2002), R167 534 (2003), R241 169 (2004). Please furnish this office with minutes of a meeting where these loans were approved and also the contact details of each member present at the meeting (name, telephone number and work address). Also indicate in terms of which provision of the constitution this was done.

3.1. Also indicate if any of the loans were paid back, if any amount was paid back please provide proof of such payment. If none was paid back provide me with an undertaking that the money will be paid back.

4. Also furnish this office with the following in order for me to determine the genuineness of the union:

4.1. Minutes of Congresses and Executive Council meetings for the past two years and attendance registers thereof.

4.2. An updated list of office bearers and paid officials of the union with names and contact details (telephone number and work addresses). Also furnish the minutes of a meeting where these were elected.

4.3. Work addresses in respect of the whole Executive Council.

4.4. The registered address of the union. According to the financial statements the union address is Unit 5, 1st Floor, 299 Pendoring Avenue, Blackheath Extension 6, 2195. We have another address in our system. Please indicate what is the official address of the union.

5. In terms of section 106 (2A) the Registrar may cancel the registration of a trade union or employers' organisation by removing its name from the appropriate registrar if the Registrar is satisfied that the trade union or employers' organisation is not or has ceased to function as a genuine trade union or employers' organisation, as the case may be.

6. In order for me to determine whether the union in question is a genuine trade union you are advised to respond to the above within 30 days of date of this letter. "

[13] The letter from the Registrar thus called upon the Union to provide information, which information the Registrar was entitled to receive in terms of the LRA and also advised the Union that if it fails to provide the information the Registrar would invoke s106 of the LRA. The Union misconstrued the contents of the above letter and assumed that the letter: (i) accused it of having committed misconduct; and, (ii) constituted a notice in terms of s106(2A) and/or s106(2B) of the LRA.

[14] The Union in its response sent off a 20 page tirade dated 5 September 2005. In its letter the Union complained: (i) that the Registrar's demand that it respond within 30 days was improper because s106 allowed 60 days to respond; (ii) that the misconduct allegations were not clearly set out; and, (iii) that the letter constituted an infringement of the Union's constitutional right to fair administrative justice. The Union also set out details of apparent wrongdoings of other Trade Unions. The full import of the content of the Union's letter to the Registrar is best illustrated by the Registrar's response to it. The response dated 3 October 2005 was thus:

"I refer to your submission dated 5 September 2005 which was received on 30 September 2005, and wish to inform you that you have completely misread the intention of my letter dated 1 September 2005.

It is the duty of the office of the Registrar to protect the members of public against some of the serious consequences which they might suffer when dealing with unscrupulous trade unions and employers' organisations which either do not comply with the provisions of the LRA and/or are not genuine organisations but, in fact, profit making enterprises. See National Employers Forum v Minister of Labour (2003) 954ILJ (LC) at (958H- 959C).

In my letter you were referred to the provisions of section 106 but this office has not taken any steps in terms of those provisions. Your response may or may not result in the provisions of section 106 being invoked. (my emphasis)

The issues that we raised in the letter appears on the surface to be inconsistent with normal trade union activities, and it is for that reason that we would like to determine whether or not the union is a genuine trade union.

Some of the matters you refer to in your submission have nothing to do with the genuineness of your union and are currently being dealt with. Other matters fall outside the jurisdiction of this office and I don't have the powers to address it, as you suggest. It is not prudent for me to react to these allegations.

I wish to confirm that the period of 30 days given to you to respond was a discretionary period and not a period referred to in terms of section 106(B) of the Act. That part of the process may or may not happen depending on the information you are able to supply.

The time period within which you are required to submit the information is hereby extended to 31 October 2005."

[15] The appellant then forwarded a flurry of letters to the registrar in response to the above:

(i) On 7 October 2005 it stated that since the Registrar hadformed "a prima facie view" that its activities wereinconsistent with normal trade union activities it wouldprovide the information requested by the registrar;

(ii) Later the same day, 7 October 2005 it appeared to have achange of heart and demanded that the Registrar answer anumber of questions that it then set out in this letter;

(iii) On 10 October 2005 (the next working day after 7 October

2005) it sent another missive 7 pages long stating that it had not misread the contents of the Registrar's letter of 1 September 2005; and,

(iv) On 14 October 2005 it forwarded a further letter that sought to amend an averment made in one of its previous letters.

[16] The Registrar did not respond to the aforesaid correspondence and the date by which the Union was requested to respond to the queries raised by the registrar, 31 October 2005, had passed. However, three days prior to the expiry of the period within which the Union was required to respond, on 28 October 2005, it launched an urgent application in the Labour Court, under case no. J2122/05, to compel the Registrar to provide it with "information, explanations, particulars, books and documents" relating to the contemplated cancellation of its registration. This application is one of the matters that was stayed by the order of the Labour Court.

[17] On 16 November 2005 the Union again wrote to the Registrar. This time it invited the Registrar to attend its "Special National Congress" ("SNC") which was to be held on 26 November 2005. The Registrar was told that one of the items to be discussed at this SNC was its (Registrar's) letter headed "CANCELLATION OF REGISTRATION".

[18] The Registrar did not respond to this invitation but on 25 November 2005 the Registrar wrote to the Union stating the following:

"LABOUR RELATIONS ACT, 1995: CANCELLATION OF REGISTRATION

I refer you to my letters dated 01 September 2005 and 3 October 2005. According to information at my disposal as contained in my letter dated 01 September 2005, I am satisfied that the union is not operating or has ceased to operate as a genuine trade union. I base my conclusion on the following:

The audited financial statements for 2002, 2003 and 2004 contain irregularities which have not been explained by the union despite being given an opportunity to do so.

The union is operating for gain of individuals.

The union is not functioning in terms of its constitution.

Kindly note that in terms of section 106 (2B), the attached notice will be published in the Government Gazette on 2 December 2005.

As indicated in the notice, all interested parties are invited to make written representations within 60 days of the date of the notice as to why the registration should not be cancelled. (my emphasis).

[19] The union responded to the above letter. It is instructive to note its response, it said:

"1. In your aforesaid notice you say-

"Kindly note that in terms of Section 106 (2B), the attached notice will be published in the Government Gazette on 2 December 2005"

(1) However, your alleged notice to be published in the Government Gazette on 2 December 2005 is not attached to your above-mentioned letter.

(2) Kindly forthwith fax us copy of your alleged notice published(or to be published) in the Government Gazette on 2 December 2005 or otherwise in order to enable all interested parties to make written representations within 60 days of the date of the notice as to why the registration should not be cancelled.

[20] The last two letters as quoted above clearly demonstrate:

(i) that the Registrar was now envoking the procedure interms of s106 (2B) of the LRA and that the appellant had 60 days from the date of the publication of the Notice to make written representations as to why its registration should not be cancelled; and

(ii) that the Union understood that the Notice that wouldbe published by the Registrar required it to makerepresentations to the Registrar if it did not wish itsregistration to be cancelled.

[21] Instead of preparing its representations, on 8 December 2005, theday after it wrote its letter6 ,the Union again wrote to the Registrar, this time, demanding of the Registrar all manner of information and stating that its demand was pursuant to "section 19 (1) of the Promotion of Access of Information Act 2 of 2000", (hereinafter "PAJA").

[22] On 12 December 2005 the Union again wrote to the Registrar. In this letter it recorded that the Registrar had failed to provide it with the information it sought notwithstanding its application to the Labour Court for such information under case no. J2125/05, and, its letter of 8 December 2005. This failure, it said rendered it unable to make the necessary representations, adding, that unless the Registrar immediately withdrew the Notice it published in the Government Gazette, an urgent application would be launched in the Labour Court to have it set aside. The Registrar did not respond to this letter.

The Labour Court Application

[23] On 15 December 2005 the Union launched an urgent application in the Labour Court. The order it sought was in the following terms:

"That a rule nisi be issued calling upon the Respondents to show cause, if any, on a day and in time to be determined by this Honourable Court, why a final order should not be granted in the following terms: -

(1) The notice (i.e. Notice of 1331 of 2005) and published and given by the Registrar of the of the Labour Relations in Government Gazette [Volume 486 Pretoria 2 December 2005 No 28258 page 49] and headed "Cancellation of Registration of a Trade Union" and also published and given by the Registrar of Labour Relations in his Website headed "Cancellation of Registration of a Trade Union: National Entitled Workers' Union (NEWU) ", is hereby declared to be ultra vires, misleading, vague and uncertain and therefore invalid,

(2) To the extent that it is still the intention of the Registrar of Labour Relations to cancel the registration of the Applicant, the Registrar of Labour Relations is hereby directed, subject to an order in ad paragraphs (3) and (4) hereinbelow, to publish and give a proper notice [that strictly complies with the provisions of Section 106 (2B) of the Act] of the registrar's intention to cancel the registration of the Applicant, which notice must be headed: "notice of the registrar's intention to cancel the registration of the trade Union: National Entitled Workers' Union (NEWU) ",

(3) The notice (i.e. Notice 1331 of2005) and published and given by the Registrar of the Labour Relations in Government Gazette [volume 486 Pretoria 2 December 2005 NO 28258 page 49] and headed "Cancellation of Registration of a Trade Union" and also published and given by the Registrar of Labour Relations in his Website headed " Cancellation of Registration of a Trade Union:

National Entitled Workers' Union (NEWU) "and/or , any other notice to be published by the Registrar of Labour Relations strictly in compliance with the provisions of Section

106(2B) of the Act and headed "notice of the registrar's intention to cancel the registration of the trade union: National Entitled Workers' Union (NEWU), " is, and/or Stayed pending the outcome of Case No.J2122/05 application,

(3) The cancellation of Registration of a Trade Union: National Entitled Workers' Union (NEWU) is hereby stayed pending the outcome of Case No: J2122/05 application,

(4) The respondents are ordered to pay the Applicant's costs, jointly and severally, the one paying the other to be absolved.

3. That the rule referred to in ad paragraphs (1),(2)(3) and (4) of paragraph 2 above operate as an interim order pending the return day of this Application.

[24] In support of the application the Union argued that the Notice published by the Registrar was invalid because: (i) it indicated that the Union's registration was already cancelled; (ii) the decision was made without the Registrar according it an opportunity to deal with the complaints; (iii) the Registrar was biased against it; (iv) the Registrar had failed to provide the necessary information which was essential for it to respond to the queries raised by the Registrar; (v) the Registrar had failed to reply to its letters; and finally, (vi) because the Notice as published was "ultra vires" because it did not precede a Notice expressing an intention to cancel the Union's registration. The Union added that unless the Notice is set aside it would suffer serious and irreparable harm because its members and public were assuming that its registration is cancelled and one of the employers who employed some of its members had informed its members that the Union's registration had been cancelled. The Union also stated that the Commission for Conciliation, Mediation and Arbitration as well as various Bargaining

Councils were disputing its status and employers were refusing to meet with it.

[25] The Union also goes on to say that the Notice was vague and embarrassing because it was based on a conclusion prematurely reached by the registrar "without the Registrar having first invited the Applicant [Union] or any interested parties to make written representations as to why the registration should be cancelled."

[26] The application was set down for 12pm on 15 December 2005. The Union only served its Notice Of Motion without any supporting documents or founding affidavit, on the State Attorney by fax at 11h10. This is just 50 minutes before the matter was to be heard. No explanation was provided as to why it was only served on the State Attorney, who was in any event not at the time representing the Registrar. Curiously though, the Labour Court granted the order sought by the Union. The order read as follows:

"Rule nisi is issued calling upon the Respondents to show cause on 24th January 2006 at 10:00, if any, why a final order should not be granted in the following terms:-

(1) The notice (i.e. Notice of 1331 of 2005) and published and given by the Registrar of the of the Labour Relations in Government Gazette [Volume 486 Pretoria 2 December 2005 No 28258 page 49] and headed "Cancellation of Registration of a Trade Union" and also published and given by the Registrar of Labour Relations in his Website headed "Cancellation of Registration of a Trade Union: National Entitled Workers' Union (NEWU) ", is hereby declared to be ultra vires, misleading, vague and uncertain and therefore invalid,

(2) To the extent that it is still the intention of the Registar of Labour Relations to cancel the registration of the Applicant, the Registrar of Labour Relations is hereby directed, subject to an order in ad paragraphs (3) and (4) herein below, to publish and give a proper notice (that strictly complies with the provisions of Section 106 (2B) of the Act) of the Registrar's intention to cancel the registration of the Applicant, which notice must be headed: "notice of the registrar's intention to cancel the registration of the trade Union: National Entitled Workers' Union (NEWU) ",

(3) The notice (i.e. Notice 1331 of 2005) and published and given by the Registrar of the Labour Relations in Government Gazette (volume 486 Pretoria 2 December 2005 NO 28258 page 49) and headed "Cancellation of Registration of a Trade Union" and also published and given by the Registrar of Labour Relations in his Website headed " Cancellation of Registration of a Trade Union: National Entitled Workers' Union (NEWU) "and/or , any other notice to be published by the Registrar of Labour Relations strictly in compliance with the provisions of Section

106(2B) of the Act and headed "notice of the registrar's intention to cancel the registration of the trade union: National Entitled Workers' Union (NEWU), " is, and/or stayed pending the outcome of Case No.J2122/05 application,

(4) The cancellation of Registration of a Trade Union: National Entitled Workers' Union (NEWU) is hereby stayed pending the outcome of Case No: J2122/05 application,

(5) The respondents are ordered to pay the Applicant's costs, jointly and severally, the one paying the other to be absolved.

3. The rule referred to in ad paragraphs (1),(2)(3) and (4) of paragraph 2 above operate as an interim order pending the return day of the application.

4. The service of the Rule Nisi to be effected upon the Respondents by serving a copy of this order on the offices of the Respondents and/or of the State Attorney by fax and/or by hand.

5. The costs order as per ad paragraph 2(5) ofparagraph A of the Notice of Motion is reserved for arguments on the return date.

[27] The matter became opposed and after all the papers were filed came before Pillay J for a final order. After hearing argument the interim order was discharged.

[28] The Labour Court found, inter alia that the Union had:

(i) failed to disclose material facts in its application;

(ii) failed to meet the requisites necessary to obtain theorder it sought;

(iii) not satisfied it that the deponent to the foundingaffidavit was authorised to depose to the affidavit forand on behalf of the Union;

(iv) failed to properly serve its application and thusimproperly obtained an interim order;

(v) properly understood that the Notice published in theGovernment Gazette which was the subject matter of the application was a Notice signalling an "intention" to cancel the Union's registration and not a Notice "cancelling" the Union's registration.

The appeal

[29] The Union in its 97 page Notice of Appeal seeks to challenge all of the above findings. It additionally states that the Labour Court was biased against it and was obstructive in that it refused to allow the Union to properly argue the matter before it.

[30] At the outset I need to say having considered the transcript of the hearing I see no basis for the Union to argue that it was not granted a sufficient and proper opportunity to put its case before the Labour Court. I do not find the Court's conduct either abusive or biased against the Union. While it was robust to a degree, the Union representative was more than able to deal with the queries raised by the Labour Court and did not find any reason to, nor did he, protest against the Labour Courts questions or manner in which the questions were put to him.

[31] Having regard to its Notice of Motion it is clear that the Union is not entitled to the order it seeks. The very first term of the order it seeks is to declare the Notice published in the Government Gazette

"ultra vires, misleading, vague and uncertain and therefore invalid." The Notice published in the Government Gazette is as follows:

"NOTICE 1331 OF 2005 DEPARTMENT OF LABOUR LABOUR RELATIONS ACT,66 OF 1995 CANCELLATION OF REGISTARTION OF A TRADE UNION

I, Johannes Theodorus Crouse, Registrar of Labour Relations, hereby in terms of section 106(2B) give notice of my intention to

cancel the registration of the NATIONAL ENTITLED

WORKERS' UNION (NEWU) for the following reasons:

• The union, audited financial statements for 2002, 2004 and 2004 contain financial irregularities which could not be

explained by the union despite being given an opportunity to do so.

The union is operating for gain of individuals.

The union is not or has ceased to operate as a genuine trade union as envisaged by the Act.

All interested parties are hereby invited to make written representations as to why the registration of the union should not be cancelled.

Objections must be lodged to me, c/o The Department of Labour, Laboria House,215 Schoeman Street, PRETORIA. [Postal address: Private Bag X117,PRETORIA, 0001-Fax -No (012 309 4848] within 60 days from date of this notice.

J.T CROUSE (signature)

REGISTRAR OF LABOUR RELATIONS."

[32] I fail to see why this Notice is "ultra vires, misleading, vague and uncertain." While the heading records "CANCELLATION OF REGISTRATION OF A TRADE UNION" this is simply a reproduction of the heading of s106 of the LRA. While it may have been more correct to add "INTENTION TO" prior to the word "CANCELLATION", for the union to construe the heading as a Notice to cancel its registration is disingenuous and mischievous. The very first paragraph of the Notice records that the Notice is published pursuant to s106(2B) of the LRA and that it serves to notify the public and the Union of the Registrar's intention to cancel the Union's registration. Nothing at all points to a decision being taken to cancel the Union's registration.

[33] The union's averment that it believed that the Registrar had cancelled its registration in terms of the LRA was clearly false. The Union was also aware that the Notice did not purport to cancel its registration because the Registrar had advised the Union by letter7 that after the publication of the Notice it (the Union) would have 60 days within which to make representations as to why its registration

should not be cancelled. The Registrar also indicated that the Notice in the Government Gazette was published in terms of s106(2B) which section like the Notice itself serves as an intention to cancel the Unions registration. Furthermore the correspondence addressed to the Registrar from the Union demonstrated that the Union was aware and understood that the Notice in terms of s106(2B) gave it 60 days to make representations as to why its registration should not be cancelled.8

[34] In so far as the Union's complaint may relate to the reasons proffered by the Registrar, there is nothing vague, misleading or uncertain about it. The basis for the reasons was explained by the Registrar in its letter to the Union as early as on 1 September 2005. It is the Union who decided not to understand the Registrar's request and made all sorts of spurious requests for further details. The information requested by the Registrar was information it was entitled to have in terms of sections 98; 99; and 100 of the LRA and which information was within the Union's peculiar knowledge. Hence, the Union's request for information before it could respond to the Registrar, and, its demand that the Registrar make information and documents available to it in terms of PAJA were made either to deliberately delay the giving of the information requested by the Registrar or raised in an attempt to deflect the process that must inevitably follow in terms of the LRA in the event that no explanation is forthcoming.

[35] The second term of the order prayed for is that the Court order the Registrar to re-publish the Notice without the heading in the form as it appears but with a heading which records the Registrar's "Intention" to cancel the Unions' registration. There is no basis for the Court to grant such an order as the Notice in the present is neither

inadequate nor deceiving.

[36] The third and fourth terms of the order prayed for was that the Court "stay" the Notice pending the outcome of the application brought by the Union under case no. J2122/05 in the Labour Court. In that application the Union seeks for the Registrar to make available to it "information, explanation, particulars, books and documents" to place it in a position to reply to the queries raised by the Registrar. Again this is not a basis for ordering a "stay"

of the giving of the Notice in terms of s106 of the LRA. There is no satisfactory explanation as to why the "information, explanation, particulars, books and documents" is indispensable for the Union to deal with the queries raised by the Registrar or, more importantly how this "information, particulars, books and documents" could assist the Union in preparing an explanation for the irregularities identified by the Registrar. The Registrar has indicated that the queries it raises stem from the Union's own financial statements that were sent to it in terms of sections 98 and 100 of the LRA. It were these financial statements that reflected irregularities. The irregularities as explained by the Registrar were the following:

(i) the discrepancies between what was received by theUnion on behalf of its members from employers andwhat was paid to the members;

(ii) the spending of over R43000,00 of the Union's fundson lotto tickets;

(iii) the granting of nearly R500 000,00 in unsecured loansto the president of the Union without any indicationsthat such loans were authorised or permissible.

[37] The Union was therefore not entitled to the third and fourth terms of the order because the information sought by the Registrar was within its own knowledge. It is the Union who had the information not the Registrar. The never ending founding affidavit of 92 pages is not only substantially irrelevant but repetitive (or as put by counsel for the Registrar: the contents of the affidavits are set out in such repetitive form that they "echo in stereo" ). The Union tries to provide some explanation for some of the issues raised by the Registrar in the affidavits filed in support of the application, this explanation if it can be called that is less than satisfactory or to put differently the explanation given fails to provide answers to the queries raised by the Registrar, but then it is not for me to decide on these issues it is for the Registrar to do so.

[38] While I do not see the need to deal with the others issues raised in this appeal I believe it appropriate to deal with the issue of service and the granting of the interim order. It is common cause that the Union faxed only the Notice of Motion to the State Attorney in Johannesburg giving it 40 minutes notice of the hearing of the matter. In these circumstances for the Labour Court to grant even an interim order is surprising. While a number of respondents were cited9, some fictitious10, the Registrar was the principal respondent and no papers whatsoever were served on the Registrar. Furthermore the applicant needed to show that it had a clear right; a well-grounded apprehension of irreparable harm if the interim relief is not granted and ultimately

relief is granted; that the balance of convenience favours the granting of the interim relief; that it has no other satisfactory

remedy and that, the matter was urgent.

[39] There was nothing in the papers before the Labour Court prior to it granting the interim relief that could have satisfied it to conclude that the matter was urgent. The Union had also not made out a case to prove that it had a clear right which was invaded, threatened or impinged with the publication of the Notice and that it had a well-grounded apprehension of irreparable harm because of the publication. By invoking proceedings in terms of s106 of the LRA the Registrar was only initiating a process that would lead to a decision on whether or not to cancel the Union's registration. There was no decision taken at the time. Furthermore by its own admission, once the Union drew the attention of those persons who were misled by the heading of the Notice those persons did not persist with their view that the Union's registration had been cancelled. In fact the Notice expressed the view held by the Registrar and called upon the Union or any interested party to make representation as to why the Union's registration should not be cancelled. The Union thus had the right in terms of s106 to continue its operation. I therefore fail to see why the Notice would violate any right that the Union may have had, or cause it irreparable harm.

[40] In the circumstances, on the extended return day, the Labour Court was correct in ordering the discharge of the rule. With regard to the issue of costs, again I cannot fault the Labour Court's decision to order costs against the Union on the attorney and client scale. The Union's application was not only without merit, it deliberately misled the Court by stating that the Notice implied that its registration was cancelled. Its averment that the Registrar arrived at a conclusion without "having first invited the Applicant [the Union] or any interested parties to make written representations as to why the registration should be cancelled" was false and misleading. As stated earlier the Union was called upon at least three months prior to the publication of the Notice by the Registration to provide the information. Its repetitive arguments, spurious request and the rambling allegations and averments which were mostly irrelevant to the dispute invited the Labour Court to make the costs order it did. I therefore see no reason to interfere with the costs order made by the Labour Court.

[41] Turning then to the counter application. At the time that the application to set aside the Notice issued by the Registrar got to the Labour Court there were other matters pending in the Labour Court launched by the Union in which the Registrar or the Department of Labour was a party. I have already referred to one under case no J2122/05 earlier in this judgment, including that, there were two other matters one under case no J1758/05 and the other under case number JR1005/05. The matter under case no J1758/05 is an application brought by the Union inter alia, to compel the Registrar to issue a certificate in terms of s101(4)11 to the effect that the amended clause 8 of the Union's constitution complies with the Union's constitution. The matter under case number JR1005/05 is a review application that raises a number of constitutional issues. The counter-application sought to stay these outstanding three matters "pending the finalisation of s106 process which the Registrar has initiated alternatively for the Labour Court to consolidate and simultaneously determine the three outstanding matters."

[42] The Union opposed the application. In its judgment the Labour Court states that the Union "consents to the alternative order sought by the Registrar namely for the consolidation of these matters (except JR1002/05) and their determination simultaneously at some future date." That consent must mean that when the Labour Court ordered that the "counter application succeeds with costs to be paid by NEWU [the Union] on a party and party scale" , it meant that the matters under Labour Court case numbers J2122/05 and J1758/05 were consolidated to be heard simultaneously and that the Union was to pay the costs of the application.

[43] The Union it appears denies that it consented to that order, in any event whether the matters are heard simultaneously or not is of no moment. I can see no objection to the matters being placed together on the roll and heard on the same day that is what was intended by the order of the Labour Court. I however see no basis upon which the Labour Court concluded that in terms of law and equity the Registrar was entitled to an order of costs for the application. Properly, even though the registrar was substantially successful, there should have been no order as to costs and the appeal in that respect must succeed. I am also of the view that in terms of law and equity there should be no order as to costs in respect of this issue in the appeal.

[44] Finally, this matter has its own history in this Court. This appeal was set down to be heard on 8 September 2009. On that day the Court refused to hear the matter because of the poor state of the record. The record which consisted of over 2225pages was flooded with irrelevant documents, improperly indexed and paginated, inorderly and simply a mess. The appeal was thus postponed for over 12 weeks and the Union given an opportunity to prepare a proper record. The Union was also ordered to pay the costs of the postponement "including the costs of preparing for the hearing of the appeal today", as the Registrar's counsel had raised the issue that although the record was not a proper record or logically collated it was obliged to "navigate" through it to trace the necessary papers, and that, it had prepared for the appeal to be heard on that day.

[45] After the Union filed a new record, this time it comprised of 12 volumes with just over 1100 pages (less than half of the previous record) it also brought an application for an order "correcting, altering or supplementing the costs order of 8 September 2009 in the following terms:

"The appellant is to pay the costs occasioned by this postponement excluding the costs of preparing for the hearing of the appeal today. "

[46] Before this Court made the order it did, the parties were advised thereof and called upon to make submissions in that respect, this they did. In any event I see no reason to entertain this application, which is irregular. The fact that the record underwent such drastic reduction is indicative of the irrelevance of the documents placed before this Court at the previous hearing. The Registrar's legal team was obliged at the time to trawl through that record to prepare for the hearing of the appeal. The voluminous record filed by the Union with unnecessary documents and duplicate documents made it appropriate to grant the order we did.

[47] In the result the Appeal succeeds only in respect of the costs order in relations to the counter application. As regards costs in this Court I see no reason why in terms of both law and equity this Court should not make an order that the costs follow the result.

[48] In the result I make the following order:

1. The appeal against the order of the Labour Court discharging the rule with costs on an attorney and client scale is dismissed with costs.

2. The appeal against the counter application succeeds,without any order for costs, only in so far as the order ofcosts is concerned. The order of the Labour Court is inthis respect amended to read:

"The counter application succeeds and the matters under case number J2122/05 and J1758/05 may be placed on the roll to be heard simultaneously. There is no order as to costs."

3. The application to revisit the cost order issued by thisCourt on 8 September 2009 is dismissed with costs.

WAGLAY ADJP I agree

SANGONI AJA I agree

TLALETSI AJA

Appearances

For the appellant: Mr Maluleke

Instructed by: National Entitled Workers Union

For the respondent: Adv P Mokoena

Instructed by: The State Attorney

Date of hearing : 26 November 2009

Date of judgment: 2 December 2009

198 Accounting records and audits (1) Every registered trade union and every registered employers' organization must, to the standards of generally accepted accounting practice, principles and procedures-(a) keep books and records of its income, expenditure, assets and liabilities; and (b) within six months after the end of each financial year, prepare financial statements, including at least- (i) a statement of income and expenditure for the previous financial year; and (ii) a balance sheet showing its assets, liabilities and financial position as at theend of the previous financial year. (2) Every registered trade union and every registered employers' organization must arrange for an annual audit of its books and records of account and its financial statements by an auditor who must- (a) conduct the audit in accordance with generally accepted auditing standards; and (b) report in writing to the trade union or employers' organisation and in that report- (i) express an opinion as to whether or not the trade union or employers' organisation has complied with those provisions of its constitution relating to financial matters; and (ii) if the trade union is a party to an agency shop agreement referred to in section 25 or a closed shop agreement referred to in section 26 express an opinion as to whether or not the trade union has complied with the provisions of those sections. (3) Every registered trade union and every registered employers' organization must- (a) make the financial statements and the auditor's report available to its members for inspection; and (b) submit those statements and the auditor's report to a meeting or meetings of its members or their representatives as provided for in its constitution. (4) Every registered trade union and every registered employers' organization must preserve each of its books of account, supporting vouchers, records of subscriptions or levies paid by its members, income and expenditure statements, balance sheets, and auditor's reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.

198 Accounting records and audits

(1) Every registered trade union and every registered employers' organization must, to the standards of generally accepted accounting practice, principles and procedures-(a) keep books and records of its income, expenditure, assets and liabilities; and

(b) within six months after the end of each financial year, prepare financial statements, including at least-

(i) a statement of income and expenditure for the previous financial year; and

(ii) a balance sheet showing its assets, liabilities and financial position as at theend of the previous financial year.

(2) Every registered trade union and every registered employers' organization must arrange for an annual audit of its books and records of account and its financial statements by an auditor who must-

(a) conduct the audit in accordance with generally accepted auditing standards; and

(b) report in writing to the trade union or employers' organisation and in that report-

(i) express an opinion as to whether or not the trade union or employers' organisation has complied with those provisions of its constitution relating to financial matters; and

(ii) if the trade union is a party to an agency shop agreement referred to in section 25 or a closed shop agreement referred to in section 26 express an opinion as to whether or not the trade union has complied with the provisions of those sections.

(3) Every registered trade union and every registered employers' organization must-

(a) make the financial statements and the auditor's report available to its members for inspection; and

(b) submit those statements and the auditor's report to a meeting or meetings of its members or their representatives as provided for in its constitution.

(4) Every registered trade union and every registered employers' organization must preserve each of its books of account, supporting vouchers, records of subscriptions or levies paid by its members, income and expenditure statements, balance sheets, and auditor's reports, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate.

299 Duty to keep records In addition to the records required by section 98, every registered trade union and every registered employers' organisation must keep- (a) a list of its members; (b) the minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate; and (c) the ballot papers for a period of three years from the date of every ballot.

299 Duty to keep records

In addition to the records required by section 98, every registered trade union and every registered employers' organisation must keep-

(a) a list of its members;

(b) the minutes of its meetings, in an original or reproduced form, for a period of three years from the end of the financial year to which they relate; and

(c) the ballot papers for a period of three years from the date of every ballot.

3101 Changing constitution or name of registered trade unions or employers' organisations (1) A registered trade union or a registered employers' organisation may resolve to change or replace its constitution. (2) The registered trade union or the registered employers' organisation must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution. (3) The registrar must- (a) register the changed or new constitution if it meets the requirements for registration; and (b) send the registered trade union or registered employers' organisation a copy of the resolution endorsed by the registrar, certifying that the change or replacement has been registered. (4) The changed or new constitution takes effect from the date of the re registrar's certification. (5) A registered trade union or registered employers' organisation may resolve to change its name. (6) The registered trade union or registered employers' organisation must send the registrar a copy of the resolution and the original of its current certificate of registration. (7) If the new name of the trade union or employers' organisation meets the requirements of section 95 (4), the registrar must- (a) enter the new name in the appropriate register and issue a certificate of registration in the new name of the trade union or employers' organisation; (b) remove the old name from that register and cancel the earlier certificate of registration; and (c) send the new certificate to the trade union or employers' organisation. (8) The new name takes effect from the date that the registrar enters it in the appropriate register.

3101 Changing constitution or name of registered trade unions or employers' organisations

(1) A registered trade union or a registered employers' organisation may resolve to change or replace its constitution.

(2) The registered trade union or the registered employers' organisation must send the registrar a copy of the resolution and a certificate signed by its secretary stating that the resolution complies with its constitution.

(3) The registrar must-

(a) register the changed or new constitution if it meets the requirements for registration; and

(b) send the registered trade union or registered employers' organisation a copy of the resolution endorsed by the registrar, certifying that the change or replacement has been registered.

(4) The changed or new constitution takes effect from the date of the re registrar's certification.

(5) A registered trade union or registered employers' organisation may resolve to change its name.

(6) The registered trade union or registered employers' organisation must send the registrar a copy of the resolution and the original of its current certificate of registration.

(7) If the new name of the trade union or employers' organisation meets the requirements of section 95 (4), the registrar must-

(a) enter the new name in the appropriate register and issue a certificate of registration in the new name of the trade union or employers' organisation;

(b) remove the old name from that register and cancel the earlier certificate of registration; and

(c) send the new certificate to the trade union or employers' organisation.

(8) The new name takes effect from the date that the registrar enters it in the appropriate register.

4The Registrar is appointed in terms of s108 of the LRA and performs functions in terms of s109 and other related provisions of the LRA.

5see paragraph [6] above.

6The letter is quoted in paragraph [19] above.

7see paragraph [18] above

8see paragraph [19] above

9The respondents that were cited in this matter were the Ministry of Labour, The Minister of Labour; The Department of Labour; The Registrar of Labour Relations and the Deputy Registrar of Labour Relations.

10There is no Deputy Registrar of Labour Relations.

11see footnote 3 in paragraph [5] above