Rakoma v Food and Allied Workers Unions (2024/110352) [2024] ZALCJHB 379 (1 October 2024)
- Citation
- [2024] ZALCJHB 379
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- RN Daniels
- Case number
- 2024/110352
More details
- Court
- Labour Court Johannesburg
- Panel
- RN Daniels
- Case number
- 2024/110352
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant's suspension as an employee does not affect his status as a member in good standing for purposes of eligibility for election under the union constitution. The constitution does not link 'good standing' to suspension, and the applicant remains eligible for election if properly nominated. The relief sought to lift the suspension or interdict the Provincial Congress is academic, as the applicant's eligibility is not affected by the suspension. Any challenge to the fairness of the suspension should have been brought as an unfair labour practice before the CCMA, as the Labour Court lacks jurisdiction to determine the fairness of the suspension. Accordingly, the application is dismissed.
Court disposition
Application dismissed. No order as to costs.
Orders
- The application to lift the suspension and interdict the Provincial Congress is dismissed.
- There is no order as to costs.
02
Material facts
Parties
Oscar Tebogo Rakoma
Applicant Counsel: Shwehwe MasitenyaneFood and Allied Workers Union
Respondent Counsel: Douglas Kela03
Procedural history
Posture
Urgent Application / Application to Lift Suspension and Interdict Provincial Congress
04
Questions and positions
Legal issues
- 01
Whether the applicant's suspension from the union is unfair and should be lifted.
- 02
Whether the applicant is eligible to stand for election at the Provincial Congress despite his suspension.
- 03
Whether the Provincial Congress should be interdicted pending the outcome of the suspension.
Party arguments
- Applicant
- The applicant contends that his suspension is unfair and prevents him from canvassing for re-election and standing for election at the Provincial Congress. He argues that the suspension notice blanketly prohibits contact with union members, thereby prejudicing his rights under the union constitution. He asserts that the constitution does not disqualify suspended members from standing for election and seeks urgent relief to lift the suspension or interdict the Provincial Congress.
- Respondent
- The respondent maintains that the applicant's suspension is valid and that the union's constitution governs eligibility for election. The respondent argues that the applicant has not exhausted his remedies for unfair labour practice under section 186(2) of the LRA and that the court lacks jurisdiction to determine the fairness of the suspension. The respondent submits that the Provincial Congress should proceed as scheduled and that the applicant remains eligible for election if properly nominated.
05
Court’s reasoning
Legal principles
- 01
FAWU Constitution, Clause 13.2.2
Members in good standing who are shop stewards at their workplace are eligible for election as office bearers and delegates to the Provincial Congress.
- 02
Motswana and Others v African National Congress and Others - Case No. 35398/18 - [2019] ZAGPJHC 4 (6 February 2019) at para 7
The term 'good standing' is not defined in the constitution and must bear its ordinary meaning, referring to a member whose subscriptions are fully paid up.
- 03
Labour Relations Act, section 186(2)
The fairness of a suspension should be challenged as an unfair labour practice before the CCMA, not in the Labour Court.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant's suspension as an employee does not affect his status as a member in good standing for purposes of eligibility for election under the union constitution. The constitution does not link 'good standing' to suspension, and the applicant remains eligible for election if properly nominated. The relief sought to lift the suspension or interdict the Provincial Congress is academic, as the applicant's eligibility is not affected by the suspension. Any challenge to the fairness of the suspension should have been brought as an unfair labour practice before the CCMA, as the Labour Court lacks jurisdiction to determine the fairness of the suspension. Accordingly, the application is dismissed.
Obiter and limits
- The notice of suspension appears to unfairly limit the applicant's right to canvass for re-election, but this issue should be addressed through the appropriate unfair labour practice procedures.
- The roles of Provincial Secretary as office bearer and employee are intertwined, complicating the separation of functions during suspension.
Court disposition
Application dismissed. No order as to costs.
- The application to lift the suspension and interdict the Provincial Congress is dismissed.
- There is no order as to costs.
Source and reliance status
Labour Court Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2024-110352
In the matter between:
OSCAR TEBOGO
RAKOMA Applicant and
FOOD
AND ALLIED WORKERS UNION Respondent
Heard: 1 October 2024
Delivered: 1 October 2024
Summary: Application to lift suspension and interdict Provincial Congress. Application dismissed.
EX TEMPORE JUDGMENT
DANIELS J
Introduction
1. The applicant is Oscar Rakoma. The respondent is the Food and Allied Workers Union (FAWU). The applicant brings an urgent application to lift his suspension with immediate effect, alternatively to interdict the Provincial Congress (“PC”) to be convened on 3 and 4 October. The applicant is a member of FAWU and its Provincial Secretary. He has been suspended since 16 May 2024 pending the conclusion of an investigation into alleged misconduct.
Applicant’s submissions
2. The applicant alleges that:
a. His suspension is unfair. It is unclear why the applicant has not pursued his unfair labour practice remedies under section 186(2) of the LRA.
b. His suspension will have the effect of preventing him from canvassing for re-election because the notice of suspension blanketly prevents him from contacting union members.
c. His suspension prevents him from standing for election. The applicant loosely bases this submission on the constitution.
Urgency
3. While the applicant can be criticised for not acting expeditiously, but it is also clear it cannot achieve adequate relief in due course. I accept that the application is urgent and can be dealt with on that basis.
Analysis
4. The applicant and the respondent, it appears, have not properly understood the constitution as it relates to the applicant’s
eligibility for election at the PC.
a. Clause 13.2.2 of the constitution states that members in good standing who are shop stewards at their workplace shall be eligible for election as office bearers and delegates to the PC.
b. The term “good standing” is not defined in the constitution. The term must bear its ordinary meaning - a member whose subscriptions are fully paid up (see Motswana and Others v African National Congress and Others - Case No. 35398/18 - in SAFLII at [2019] ZAGPJHC 4 (6 February 2019) at para 7.
c. In my view, the term “good standing” is unrelated to whether an employee, who is also an office bearer of the union, is suspended or not.
d. Clause 14.2.6 of the FAWU constitution relates specifically to a bi – election and does not find general application.
e. The suspension of the applicant as an employee does not mean that he is not a member in good standing.
f. The applicant remains eligible for election, at the PC, provided he is properly nominated and elected by the delegates.
g. Given that the office of the Provincial Secretary is both an office bearer position as well as an employee position in relation to the union. These two roles cannot easily be separated. In the circumstances, given his suspension, the applicant does not automatically qualify as delegate to the PC.
5. It is thus unnecessary for the applicant to have his suspension lifted, nor is it necessary for him to interdict the PC. Such relief is academic. At first glance, the notice of suspension appears to unfairly limits the applicant’s right to canvass for re-election. However, the unfairness of the suspension should have
been challenged as an ULP before the CCMA. This court has no jurisdiction to determine the fairness of the applicant’s suspension.
Conclusion
6. In the result, the application is dismissed. There is no order as to costs.
RN Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Shwehwe Masitenyane (Pupil)
Instructed by: Ditan Attorneys
Email: shweshwem@rsabar.co.za
For the Respondent:
Adv Douglas Kela
Instructed by: Voyi Inc
Email: alpha@vuyi.co.za / ndumiso@voyi.co.za
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