Registrar of Labour Relations v Inqubelaphambili Trade Union and Others (J614/20) [2020] ZALCJHB 130 (13 August 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J614/20

In the matter between:

REGISTRAR OF LABOUR RELATIONS

Applicant

and

INQUBELAPHAMBILI TRADE UNION First Respondent PHUMZILE ZWANE NOKUZA VERONICA ZWANE LUTHULI ZIKHALI ELPHAS LUTHULI JULIUS MOYO MBEKISENI MVUBU WILSON MUTWANAMBA Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent

Heard: 12 August 2020

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 13 August 2020.

Summary: application to place a trade union under Administration in terms of section 103A of the LRA

JUDGMENT

COETZEE AJ

[1] The applicant urgently approaches this Court for an order to place the first respondent, registered trade union, under administration in terms of the provisions of section 103A of the Labour Relations Act.

[2] The first respondent is a registered trade union. The second respondent is an Office Administrator employed by the first respondent.

[3] The third respondent is employed as a Receptionist by the first respondent.

[4] The fourth respondent is employed by the first respondent as a trade union official.

[5] The fifth respondent has been a member of the national executive committee ("NEC") of the first respondent.

[6] The sixth respondent has also been a member of the NEC of the first respondent.

[7] The seventh respondent has also been a member of the NEC.

[8] The urgency arises from a court order of 24 July 2020 under case number J664/2020 directing the applicant to bring an application of placing the first respondent under administration and to appoint an administrator within fourteen days of the date of the order.

[9] The basis for seeking to place the first respondent under administration is due to the internal conflict and strife between the Luthuli and NEC factions. The second, third and fourth respondents form part of the Luthuli faction and the fifth sixth and seventh respondent's form the NEC faction.

[10] As a result of the internal conflict and strife between these two factions the first respondent has been unable to convene a National Congress from 2016 to 2019. The last National Congress was held in twenty fifteen. Members of the NEC are elected for two years.

[11] As a result, the applicant is of the view that the trade union is paralysed and incapable of complying with its own constitution and with the LRA.

[12] According to the applicant the current NEC is not lawfully constituted.

[13] During 2017 the vice president resigned and a month later the president passed away. There after the General Secretary of the first respondent also resigned. The positions of president and Vice Dissident were never filled, and the fifth respondent assumed the position of the General Secretary and he had occupied that position since 2017.

[14] The factions have made representations to the Registrar once he published a notice in the government Gazette of his intention to deregister the first respondent.

[15] The understanding of those representations is that it is in the best interest of the members of the union that it be placed under administration and that and Administrator be appointed. That will ensure that the union can become functional again.

[16] In addition, it has become apparent to the applicant that the first respondent is an association for gain of individuals and is not functioning in terms of its own constitution. On top of that the first respondent was under the direct control of family members.

[17] The first to fourth respondents filed an answering affidavit. They have a concern in that the nominated Administrator is based in Bloemfontein and he would have to travel between Bloemfontein and Johannesburg. They are concerned about the travel and accommodation costs. The applicant refused to accede to a request to appoint someone else. They then ask that the travelling and accommodation costs not be paid by the first respondent. The LRA specifies that the costs must be determined by the Registrar of the Labour Court. That is an appropriate safeguard. Mr. Bell is neutral, and a neutral process has been followed to select an administrator through the CCM

[18] They also ask the court to direct the administrator to ensure that a national congress is held within a specified period.

[19] The first respondent also filed an answering affidavit in which it denies that Cheadle Thompson Haysom represents it. Otherwise it does not oppose the granting of the order. First respondent contends a congress was held in February 2020. The registrar disputes this. The administrator can investigate that.

[20] CTH however filed its mandate from the members.

Compliance with previous orders.

An affidavit of compliance compiled by the Registrar failed to serve before court and thus it is necessary to deal with compliance. It appears that the Registrar had in fact complied with the relevant court order.

Analysis

[21] it is clear that the trade union is non-functional and must either be deregistered or placed under administration. It is in the interests of the members of the union that the union is not deregistered but rather placed under administration.

[22] The registrar recommends Mr Charles Miles Dell as a suitable person to be appointed as the Administrator. His experience and qualifications make him a suitable person.

[23] No calculation of travelling and accommodation costs have been provided to guide the applicant or the court in whether it would be unreasonable. Minimal travelling and accommodation are in any event foreseen as a result of the lockdown.

[24] I therefore make the following order:

[24.1] the matter is deemed to be urgent and non-compliance with the rules of the Court are dispensed with

[24.2] the first respondent is placed under Administration in terms of section 103A of the LRA as amended;

[24.3] Charles Miles Dell is hereby appointed as the Administrator of the first respondent in terms of section 103A of the LRA with effect from the date of this order;

[24.4] The terms of reference appearing on page 242 - 247 of the record are attached to this order and shall be the terms of reference for the appointed administrator.

[24.5] The registrar of Labour Relations is declared compliant with the directive of the court in the order of 26 February 2020 in case numbers J2414/19 and J34/20.

[24.6] The Administrator is directed to convene a national congress within six months of this order.

[24.7] The costs of this application are costs in the administration.

­­­­_________________

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant:

Adv G Fourie SC

Instructed by:

State Attorney

For the First Respondent:

Instructed by:

For the 2nd to 4th respondents: Adv Lennox

Instructed by

Cheadle Thompson Haysom.