Registrar of Labour Relations v Sono N.O. and Others (J 2896/18) [2024] ZALCJHB 310 (14 August 2024)

FLYNOTES: LABOUR – Union – Appointment of administrator – Powers of registrar – Administrator was granted all powers necessary to give effect to order – Not expected to consult with registrar when making general administration decisions – Administrator steps into shoes of trade union – Union can only act through appointed administrator – Registrar’s powers do not extend to matters that have an impact on general running and governance – Application dismissed – Labour Relations Act 66 of 1995, ss 161 and 200.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: J 2896/18

In the matter between: THE REGISTRAR OF LABOUR RELATIONS Applicant and SIPHO ERIC SONO N.O (Administrator of the Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union) First Respondent CHEMICAL, ENERGY, PAPER, PRINTING, WOOD AND ALLIED WORKERS’ UNION (Under administration) Second Respondent ALFRED TSEKI Third Respondent

Heard: 25 July 2024

Delivered: 14 August 2024

This judgment was handed down electronically by consent of the parties’ legal representatives by circulation to them by email. The date for hand-down is deemed to be 14 August 2024.

JUDGMENT

PRINSLOO, J

Urgency

[1] The Applicant (also referred to as the Registrar) approached this Court on an urgent basis for relief I will fully deal with infra.

[2] The First and the Second Respondents (Respondents) opposed the application and took issue with urgency. In Court, Ms Bismilla for the Respondents accepted that the matter was indeed urgent and urgency was no longer disputed. I will deal with the merits of this matter on an urgent basis.

Background facts

[3] This matter has a litigious history and the administration of the Second Respondent (CEPPWAWU) has come before this Court on several occasions. The sequence of events is relevant to the merits of this application and it also provides the necessary context.

[4] In 2018, the Applicant made an application that CEPPWAWU be placed under administration in terms of the provisions of section 103A of the Labour Relations Act="_ftnref1">[1] (LRA). On 4 June 2020, this Court (per Rabkin-Naiker J) granted an order placing CEPPWAWU under administration and Ms Mashanda was appointed as administrator. This was the first administration order and it gave broad powers to the administrator.

[5] There was a litany of litigation during Ms Mashanda’s tenure as administrator and eventually, an application to remove her as the administrator served before this Court. On 24 March 2022, Ms Mashanda was removed as administrator and the Court (per Tlhotlhalemaje J) ordered that the First Respondent (administrator or Mr Sono) be appointed as the interim administrator for a term of 180 days from the date of the order. The second administration order made the terms of the first administration order applicable to Mr Sono’s tenure as administrator but also added some additional duties.

[6] On 7 December 2022, a third administration order was granted (per Snyman AJ) which substituted the second administration order and the order inter alia appointed Mr Sono as the administrator and made provision for the expiry of the period of administration on 12 December 2023.

[7] In November 2023, the Registrar brought an application to extend the period of CEPPWAWU’s administration as well as Mr Sono’s term as administrator. On 4 December 2023, the Court (per Lallie J) granted the fourth administration order and the period of administration and the administrator’s term were extended from 12 December 2023 to 30 June 2025, alternatively until the election of the CEPPWAWU leadership at the national congress and the handing over of the union to such leadership, whichever came first.

[8] It is evident that CEPPWAWU has been under administration since 2020 and that the terms of its administration and the appointed administrator have been extended on several occasions. Chief among the reasons for the extensions was the lack of funds which made it impossible for the administrator to complete the duties that he was appointed to perform and in the main, it was his inability to file the annual audited financial statements and the convening of a national congress in order to hand over the union to a newly elected leadership as well as his inability to settle the union’s outstanding debts. Mr Sono faced severe financial challenges in the execution of his duties as administrator and the lack of funding has marred the administration process and on a broader scale, precluded the finalisation thereof.

This application

[9] On 10 June 2024, the administrator appointed the Third Respondent (Mr Tseki) as a national organiser and the said appointment triggered this application. The Applicant seeks an order to declare Mr Tseki’s appointment as national organiser null and void and for it to be set aside.

[10] The Applicant also seeks an order declaring that paragraph 6.4 of the third administration order (paragraph 6.4) contemplates consultation with the Registrar on any and all decisions pertaining to the administration of CEPPWAWU.

[11] Mr Madima for the Applicant conceded during argument that should this Court find that paragraph 6.4 does not contemplate consultation as alleged by the Applicant, then the application has to fail.

[12] Paragraph 5 of the third administration order provides that the provisions of the entire paragraph 3, including all subparagraphs thereof, of the administration order granted on 4 June 2020, shall equally and without exception apply to Mr Sono in the course of his tenure as administrator. The said paragraph 3 of the first administration order granted the administrator all such powers necessary to give effect to the order, including inter alia to take immediate control of and in the place of the President of CEPPWAWU, and/or the Deputy General Secretary, and/or the National

Office Bearers Committee (NEC), and/or the National Executive Committee (NEC), and/or any body or person entitled to perform such

functions; to manage the affairs of and concerning the union, together with all assets and interests relating to the business and/or affairs of CEPPWAWU.

[13] Paragraph 6.4 of the third administration order provides as follows:

‘Sono shall be required to consult with interested parties when deciding the proper and effective governance and administration requirements to be put in place for CEPPWAWU.’

[14] The Applicant’s case is in short that Mr Sono made a presentation to the office of the Registrar on 19 April 2024 and he introduced the idea of appointing a national organiser. On 22 May 2024, the Applicant raised his concerns about the appointment of a national organiser, which concerns related to the effect such an appointment would have on the union’s financial position and its continued failure to file audited financial statements. Mr Sono responded on 5 June 2024, acknowledging that the Applicant’s concerns were legitimate, but stated that in his view, the role of the national organiser is crucial to the attainment of a stable operational environment, which would enable him to be more effective

in his administration. In further correspondence, the Registrar discouraged the administrator from proceeding with the appointment of a national organiser due to the financial position of the CEPPWAWU.

[15] On 13 June 2024, the Applicant learned that the administrator indeed appointed a new national organiser. The appointment was with effect from 10 June 2024 and this appointment is central in this application.

[16] The Applicant’s case is that the appointment of a national organiser is irregular because CEPPWAWU is still in dire financial straits and the appointment would require more funds to remunerate such a person and the limited available funds ought to be preserved and utilised to complete the outstanding deliverables which resulted

in the union being placed under administration. Furthermore, the responsibilities of the national organiser are the responsibilities

of the administrator and it is not necessary to appoint another person to perform the duties and functions of the administrator. The Applicant further took issue with the profile of Mr Tseki and the ‘unlawful and irregular’ process that was followed in making the appointment.

[17] On 14 June 2024, the State Attorney acting for the Applicant, reiterated that the Registrar “is unequivocally against the appointment of this or any national organiser…” and the administrator was requested to provide the Applicant with details such as the rationale for the appointment, the curriculum vitae of the appointee, the letter of appointment and the salary and benefits attached to the post by no later than 18 June 2024.

[18] In response to the aforesaid letter of 14 June 2024, the administrator’s attorneys responded and referred to paragraphs 3.1 and 3.7 of the first administration order. I already alluded to the contents of paragraph 3.1 supra, which authorised the administrator to take immediate control of and to manage the affairs of the union, together with all assets and interests relating to the business and/or affairs of CEPPWAWU. Paragraph 3.7 authorised the administrator to engage the assistance of legal, accounting, actuarial, administrative or other professional services, as he may reasonably deem necessary for the performance of his duties in terms of the order and to defray reasonable charges and expenses incurred from the assets owned, administered or held by or on behalf of the union.

[19] The stance adopted by Mr Sono was that, according to the first and subsequent administration orders, he is duly appointed as administrator and as such he has a wide and unfettered discretion in the running of the affairs of the union in the best interests of its members. The administrator claimed that in the appointment of a national organiser, he was exercising his full administrative powers and his discretion in the best interests of CEPPWAWU. The administrator made it clear that the Registrar was not entitled to the information, as requested, nor was he entitled to have any say in respect of the appointment of a national organiser. Mr Sono questioned the Registrar’s motives and his attorneys questioned “isn’t this an exercise of a non-existent power by your client or at worst, undue interference with the administrator’s

office in exercising his duties entrusted to him by a competent court at your client’s insistence and recommendation?”

[20] The Applicant explained that after having received the aforesaid response, it became clear that his efforts to try and have a productive engagement with the administrator were futile and that the only way to resolve his concerns was to seek assistance from the Court by launching this urgent application.

The issue

[21] The crux of the issue to be decided is whether paragraph 6.4 of the third administration order, which provides that Mr Sono shall be required to consult with interested parties when deciding the proper and effective governance and administration requirements to be put in place for CEPPWAWU, contemplates consultation with the Registrar.

[22] The Applicant’s case is that it does because the Registrar is an interested and affected party. This is so because the Registrar has an interest in the affairs of CEPPWAWU and its administration and in fact, he has a duty to ensure that Mr Sono acts in the best interests of CEPPWAWU and its members. Mr Sono must act in the best interest of CEPPWAWU and the terms of the first administration order require him to report on his administration within 12 months from the

date of the order and to include findings and recommendations concerning his affairs and the continuation, if necessary, of the

administration and to report on the union’s affairs to the Registrar on a monthly basis during the aforesaid 12 months and such further period of administration.

[23] According to the Applicant, the aforesaid provisions show that Mr Sono was required to provide the Registrar with the information he had requested and that his views are to be considered. If the Registrar had no powers to express a view, these provisions would be redundant and there would be no point in reporting to the Registrar if he cannot take any action in that regard.

[24] In short, the Applicant’s case is that the fact that the first administration order allows him to make recommendations, by necessary implication means that the Registrar must be consulted and may participate in the decision-making process.

[25] The administrator on the other hand disputed this. His case is that he must report to the Registrar on a monthly basis, which he has been doing since his appointment and that his duty is to report to the

Registrar and to keep him appraised on the progress of the administration process, but beyond this, the administration of the union must be an independent process. The running of the internal affairs of the union falls outside the ambit of the functions of the Registrar.

[26] The administrator accepts that it is a necessity for the Registrar to have oversight, but to ensure the independence of the process, the Registrar’s involvement must be limited to an overseeing role

in relation to his functions and nothing more.

Analysis

[27] In my view, the starting point is to consider the functions and powers of the Registrar and an administrator appointed in terms of section 103A of the LRA.

The Registrar of Labour

[28] Appointed in terms of section 108 of the LRA, the Registrar of Labour is an officer of the Department of Labour, designated to perform the functions conferred on the Registrar in terms of the LRA. Such functions include:

1. keeping a record of registered trade unions and federations of trade unions; employers’ organisations and federations of trade unions; and keeping a record of councils;[2]

2. publishing any additions or deletions from the register in the Government Gazette;[3]

3. considering and evaluating applications for registration received from trade unions or employers’ organisations;[4]

4. registering trade unions or employers’ organisations if satisfied that they meet the requirements for registration and issuing a certificate of registration;[5]

5. registering a changed or new constitution or the new name of a trade union or employers’ organisation, if satisfied that it meets the requirements;[6]

6. applying for the appointment of an administrator to administer a trade union or employers’ organisation;[7] and

7. cancelling the registration of a trade union or employers’ organisation by removing its name from the appropriate register.[8]

[29] In discussing the role and functions of the Registrar of Labour, the Labour Court in Public Servants Association of South Africa and another v Minister of Labour and another[9] (PSA) described the powers of the Registrar as being “original statutory powers, functions and duties vested in him or her by the LRA”[10]. On appeal[11], the Labour Appeal Court (LAC) summarised the functions and powers of the Registrar as follows:

‘[81] Section 109 of the LRA gives additional functions to and summarises the other functions of the registrar. In terms of s 109(1), the registrar must keep registers of the entities specified in paras (a) to (e) (inclusive) of that section. In terms of s 109(2), the registrar is enjoined to give notice in the Gazette of any entry or deletion he included in the register. In terms of s 109(3), the registrar has the power to condone late compliance with any time periods stipulated in chapter VI of the LRA — except the period within which a person may [not] appeal against the registrar’s decision. Section 109(4) provides that the registrar must perform all the other functions conferred on the registrar in terms of the LRA.

…

[83] Other functions are contained in s 101 of the LRA, relating to the changing of the constitution or name of registered trade unions or of employers’ organisations; in terms of s 102 relating to the registration of amalgamated trade unions or employers’ organisations; in terms of s 103 relating to the winding-up of trade unions and employers’ organisations; in terms of s 103A relating to the appointment of an administrator to a trade union or employers’ organisation; in terms of s 106 relating to the cancellation of the registration of trade unions or employers’ organisations; in terms of s 107 relating to the registration of federations of trade unions and employers’ organisations; in terms of s 110 in relation to the access to information in the registrar’s office and in terms of s 111 in relation to appeals against the registrar’s decision.’

[30] In Registrar of Labour Relations v Consolidated Association of Employers of SA Region[12], the LAC considered the functions of the Registrar and confirmed that “the registrar is a creature of statute. He derives his powers from the LRA and the guidelines promulgated in terms of the LRA”[13]. It further held that:

‘The functions of the registrar are set out in s 109 of the LRA. This includes keeping a register of registered employers' organisations etc. He fulfils an important regulatory and custodial function in terms of the LRA and is responsible for protecting members of the public against some of the serious consequences which they may 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. The registrar has a discretion when exercising his powers in terms of s 106(2A) of the LRA. He has wide powers and must still act within the confines of the law and give reasons for his decision. He must allow an applicant to make representations before making his decision. He does not have unfettered powers in terms of the LRA.’

[31] In discussing the limitations and restrictions of the Registrar’s powers, the Court in National Entitled Workers Union v Ministry of Labour and others[14] held as follows:

‘It must be borne in mind that the registrar is a creature of statute. He must act within the confines of the LRA. He does not have any power in terms of the LRA to suspend the cancellation of a trade union or to impose certain fines. He can, depending on what section of the LRA a trade union has breached, call upon the trade union to remedy that within a specific period….’

[32] It is clear from the authorities that the Registrar is a creature of statute, that he does not have unfettered powers, but must act within the confines of the powers given to him in terms of the LRA. The Registrar fulfils an important regulatory and custodial function.

An administrator appointed in terms of section 103 of the LRA

[33] An administrator of a trade union is appointed in terms of section 103A of the LRA. The purpose of appointing an administrator is for a trade union to regain its viability and to ensure the fulfilment of the purposes for which the union was first established. In Solidarity v Metal & Engineering Industries Bargaining Council & others[15] (Solidarity), the Court described the purpose of administration under section 103A as:

‘Administration is intended to save the organisation concerned from being wound up or liquidated. It recognises that there is still a viable entity serving a legitimate purpose, which is just in need of proper intervention and assistance to bring it back on track so that the organisation can fulfil the purpose for which it was established. That would be in the interest of all stakeholders, as it would avoid all the negative consequences that are bound to follow from liquidation or winding-up.’

[34] Only a trade union or the Registrar of Labour can apply for the administration of a trade union in terms of section 103A - the applicant proposes an administrator for appointment on application to the Labour Court. The Labour Court is not empowered to choose an administrator for the union but may decline the proposal put forward, resulting in the applicant having to find and propose another administrator.[16]

[35] In discussing the role of the Registrar in applying for the appointment of an administrator and the powers of the Registrar, the Court in Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union and others v Mashanda NO and others[17] (CEPPWAWU) held as follows:

‘The other way administration can come about is upon application by the Registrar. It must be remembered that the Registrar is put in a position to exercise a measure of supervision over trade unions, by the LRA. This supervision is conducted in the context that the trade union must provide certain prescribed information to the Registrar, and the Registrar may cancel the registration of a trade union if he is satisfied that the trade union is not or has ceased to function as a genuine trade union.’

[36] The appointment of an administrator has been likened to the appointment of a business rescue practitioner under the provisions of the Companies Act.[18] In Vosloo NO and another v SAMA NPC and another[19] (Vosloo), It was held that:

‘Section 103A of the LRA, which regulates the appointment of an administrator of a trade union that is placed under administration, has as its primary objective the regaining of a trade union’s viability and the fulfilment of the purpose for which the union was established (see Solidarity v Metal & Engineering Industries Bargaining Council & others (2017) 38 ILJ 2109 (LC)). As Myburgh AJ noted in Public Servants Association of SA & another v Minister of Labour & another (2016) 37 ILJ 185 (LC); [2016] 1 BLLR 68 (LC) at para 7:

“In essence, the appointment of an administrator may be compared to the appointment of a business rescue practitioner in the case of an ailing company. It is a mechanism that can be resorted to before a trade union or employers’ organisation is deregistered and wound up, and attempts to avoid this is in the interests of all concerned.”’

[37] In keeping with the comparison between the business rescue process under the Companies Act and the appointment of an administrator under section 103A of the LRA, the Court in CEPPWAWU noted that the Companies Act did not provide for the oversight of corporate entities while, on the other hand, the LRA placed the Registrar in a position to exercise a level of supervision over the functions of the trade union. The supervision is conducted in the context of the prescripts and provisions of the LRA. Accordingly, where trade union officials are engaged in some malfeasance or poor administration, and same is reported, the Registrar must then decide whether the circumstances require his intervention, including applying for the appointment of an administrator.[20]

[38] When appointed, an administrator steps into the shoes of the trade union and in turn, the union can only act through the appointed administrator.[21] Similarly, in business rescue proceedings, business rescue practitioners take over the management control of the business.

In casu

[39] This position is echoed in all the administration orders that were issued wherein it was confirmed that the administrator was granted all such powers necessary to give effect to the order, including inter alia to take immediate control of and in the place of the President of CEPPWAWU and/or the Deputy General Secretary, and/or the National Office Bearers Committee (NEC), and/or the National Executive Committee (NEC), and/or any body or person entitled to perform such functions; to manage the affairs of and concerning the union, together with all assets and interests relating to the business and/or affairs of CEPPWAWU.

[40] In Vosloo[22], the Court explained that a ‘trade union’ is defined to mean “an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers’

organisations”. The Court held that:

‘The trade union is a body that is statutorily recognised, which exists independently and with freedom from interference and with all of the statutory protections that flow from the fundamental rights established by s 23(4) of the Constitution. Significantly, this right includes the rights of a trade union to determine its own administration, programmes and activities, and to organise. These fundamental rights find legislative expression in the LRA.’

[41] The administrator, by appointment, stepped into the shoes of CEPPWAWU and the union can only act through the appointed administrator, who took over the management control of the union.

[42] The functions of the Registrar are provided for in the LRA, as set out supra, and more specifically section 103A empowers the Registrar to apply to the Labour Court to appoint an administrator, to vary or amend any prior order made or to terminate the appointment of the administrator where an administrator is no longer required. The Registrar is, as already alluded to, a creature of statute which fulfils an important regulatory and custodial function. The Registrar does not have unfettered powers and he must act within the confines of the powers given to him in terms of the LRA.

[43] Paragraph 6.4 of the third administration order provides for Mr Sono to consult with interested parties when deciding the proper and effective governance and administration requirements to be put in place for CEPPWAWU. The Registrar seeks an order declaring that Mr Sono must consult with him on any and all decisions pertaining to the administration of CEPPWAWU, as this is how the Registrar understands paragraph 6.4.

[44] The administrator opposed the Registrar’s interpretation of paragraph 6.4. on several grounds, which I will deal with infra. Mr Sono conceded that the Registrar may be an interested party, but contended that the right of an interested party to be consulted is limited to those interests which fall within the functions of the party to be consulted. Put differently and in my view correctly: the scope of the Registrar’s interest is limited to the ambit of his functions and powers as specified in the LRA. If the Registrar were to demand to be consulted on matters that fall outside of his statutory functions and powers, such would be ultra vires.

[45] In his replying affidavit, the Applicant stated that “the Registrar has no interest in running the internal affairs of the union. The Registrar is of the view that whenever the administrator’s

actions imperils the interests of the union and its members, it is his duty to raise concerns and intervene”. The Registrar has no role to play in the running of the internal affairs of the union and no case has been made out before this Court that the administrator’s actions imperilled the interests of CEPPWAWU and its members.

[46] Mr Sono submitted that the words ‘governance and administration requirements’ relate to activities relevant to the process of administration that CEPPWAWU is undergoing and it does not include the day-to-day administration of the union. In reply, the Registrar accepted that no union is required to consult with him over an appointment under the LRA, but he seeks to distinguish this to be the position of a union that is not under administration. According to the Registrar, in CEPPWAWU’s case, paragraph 6.4 of the third administration order has a wide reach and it includes matters that

have an impact on the general running and governance of the union, which include the appointment of Mr Tseki.

[47] In my view, Mr Sono’s understanding is correct, more so as the order was given within the context of CEPPWAWU being under administration and he is not expected to consult with the Registrar when making general administration decisions. Such a requirement will interfere with Mr Sono’s authority as administrator and it will

undermine the effective and efficient administration and running of the union. The Registrar’s attempt to differentiate between a union not under administration and one that is under administration is superficial as the Registrar’s functions and powers as set out in the LRA, remain the same, irrespective of whether a union is under administration or not. When under administration, an administrator steps into the shoes of the trade union and in turn, the union can only act through the appointed administrator.

[48] In casu, the administration orders that were issued granted the administrator all such powers necessary to give effect to the order, including inter alia to take immediate control of and to manage the affairs of the union, together with all assets and interests relating to the business and/or affairs of CEPPWAWU. The Registrar’s powers do not extend, as he believes, to matters that have an impact on the general running and governance of the union.

[49] The administrator’s case is further that the recruitment of a national organiser does not relate to ‘governance and administration requirements’. The recruitment of staff is part of the general internal administration and the day-to-day running of the union. The administrator submitted that there is nothing in the

administration orders, the provisions of the LRA or CEPPWAWU’s constitution which requires that the Registrar be consulted in respect of the internal recruitment for the union.

[50] In my view, there is merit in this objection. The Registrar’s powers and functions are set out in the LRA and in general, he fulfils an important regulatory and custodial function. The administrator is required to report to the Registrar on a monthly basis on the progress of the administration process. There is a vast difference between ‘consulting on’ and ‘reporting on’.

[51] Every recruitment and subsequent appointment made will have a financial implication for CEPPWAWU, as appointed individuals become employees who would earn a salary. The mere fact that the union is under administration and that it faces financial challenges does not mean that an internal recruitment process is converted to a process or activity related to the process of administration and that the administrator has to consult with the Registrar on internal recruitment and appointments being made.

[52] The day-to-day running of the union, including internal matters such as recruitment, does not fall within the ambit of the Registrar’s functions and powers, as provided for in the LRA. Any claim or expectation that the Registrar is entitled to be consulted on matters which are beyond the scope of his own powers, would constitute overreaching beyond the ambit of his functions and powers.

[53] I fail to see that any of the provisions of the LRA which confer powers on the Registrar, empower him to set aside an internal union appointment. It is certainly not for the Registrar to concern himself

with questions such as how many CVs the administrator considered in appointing the national organiser, whether the post was advertised

and which recruitment process was followed. Those are day-to-day internal issues of the union and if they are to be challenged, it is not for the Registrar to do so.

[54] The extent to which the Registrar may intervene in a trade union’s functioning is limited to what is contained in the LRA, as established by the case law quoted above. Neither section 103A, nor any other section in the LRA, provides that the Registrar may intervene in the day-to-day functioning or management of a union, or be consulted with before decisions are taken by officials of the union or the administrator. The administrator is responsible for exercising the management powers conferred upon him by a Court order, whilst the Registrar retains his supervisory powers in ensuring a union’s compliance with the provisions of the LRA. If the union does not comply with the provisions of the LRA, the Registrar’s supervisory powers entitle him to intervene and to approach this Court, if necessary. These supervisory powers, however, do not extend to the management of a union, whether under administration or not.

[55] For all these reasons the application must fail.

Costs

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

[57] Insofar 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.

[58] In Zungu v Premier of the Province of KwaZulu-Natal and Others[23], 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.

[59] This is a case where the Court has to strike a balance.

[60] Mr Madima for the Applicant submitted that CEPPWAWU is in a dire financial position and that the Applicant was not seeking a cost order.

[61] Ms Bismilla for the Respondents on the other hand submitted that the Applicant should be ordered to pay the costs. She argued that although there is an ongoing relationship between the Applicant and Mr Sono, Mr Sono must act in the best interest of the union and defending this meritless application caused CEPPWAWU to spend funds unnecessarily when it is already in a dire financial position. The Registrar is well aware of the precarious financial circumstances of the union and the negative impact that the barrage of litigation has had in the coffers of CEPPWAWU. The cost of this litigation, which should not have been brought to this Court on an urgent basis, is significant and can be ill-afforded by the union. These arguments are

not without merit.

[62] I have considered the arguments, and it is clear to me that it is common cause that CEPPWAWU is in financial trouble. I have no doubt that defending this application will burden the union’s financial position even further. I must strike a balance in considering the issue of costs – there is an ongoing relationship between the Registrar and Mr Sono and it will be in the

interest of all the parties that the administration process is completed successfully, with the minimum strain on the relationship.

[63] Considering the union’s dire financial position and the fact that no argument was presented to the effect that a cost order would strain the relationship between the Registrar and the administrator, I am of the view that this is a matter where a cost order would be appropriate.

[64] In the premises, I make the following order:

Order

1. The application is dismissed;

2. The Applicant is to pay the First and Second Respondents’ cost, on a scale as between party and party.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances: Applicant: Advocate T Madima SC with Advocate J Chanza Instructed by: State Attorney, Pretoria First and Second Respondents: Advocate S Bismilla Instructed by: KMNS Inc Attorneys

[1] Act 66 of 1995, as amended.

[2] Section 109(1)(a) – (e).

[3] Section 109(2).

[4] Section 96(3)(a).

[5] Section 96(3)(b) – (7).

[6] Section 101(3) and (7).

[7] Section 103A.

[8] Section 106.

[9] [2015] ZALCJHB 340; (2016) 37 ILJ 185 (LC).

[10] Ibid at para 8.

[11] Minister of Labour and another v Public Servants Association of SA and another [2017] ZALAC 11; (2017) 38 ILJ 1075 (LAC) at paras 81 and 83.

[12] [2014] ZALAC 45; (2015) 36 ILJ 182 (LAC).

[13] Ibid at para 27.

[14] [2010] ZALC 179; (2011) 32 ILJ 1372 (LC) at para 23.

[15] (2017) 38 ILJ 2109 (LC) at para 39.

[16] Chemical Energy Paper Printing Wood & Allied Workers Union and others v Mashanda NO and others [2022] ZALCJHB 350; (2023) 44 ILJ 520 (LC) at para 65.

[17] Ibid at para 63.

[18] Act 71 of 2008. See: PSA supra at para 7.

[19] [2020] ZALCJHB 96; (2020) 41 ILJ 2482 (LC) at para 17.

[20] CEPPWAWU supra at para 64.

[21] Ibid at para 66.

[22] Vosloo supra at para 20.

[23] [2018] ZACC 1; (2018) 39 ILJ 523 (CC) at para 24.