Theledi v Police and Prison Civil Rights Union and Others (J766/20) [2020] ZALCJHB 131 (17 August 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J766/20

In the matter between:

N THELEDI

Applicant

and

POLICE AND PRISON CIVIL RIGHTS UNION First Respondent NATIONAL EXECUTIVE COMMITTEE OF THE POLICE AND PRISON CIVIL RIGHTS UNION PRESIDENT OF THE POLICE AND CIVIL RIGHTS UNION Second Respondent Third Respondent

Heard: 13 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 at 10h00 on 17 August 2020

Summary: Removal of the General Secretary of the Union - removal must be in terms of the Union's constitution

JUDGMENT

COETZEE AJ

[1] The applicant in an urgent application asks that a decision by the second respondent on 28 July 2020 removing the applicant from his position as the general secretary of Popcru, be reviewed and set aside as the decision is procedurally and substantively unfair. Also, for reinstating the applicant in his position as the general secretary and asking for costs.

[2] The matter first served before Court on 7 August 2020 when it was postponed to 13 August 2020 calling upon the respondents to file an answering affidavit by Tuesday, 11 August 2020 and ordering that pending judgement in this application the respondents shall not take any steps to secure the replacement of the applicant as general secretary of the first respondent. Costs were reserved.

[3] The salient facts are as follows.

[4] The applicant served as general secretary from 8 November 2019. The NEC at a special meeting on 28 July 2020 took a decision to remove the applicant from the office bearer position of general secretary, according to the applicant by a decision "purportedly taken by the NEC".

[5] In essence the applicant complains that the decision was taken without affording him the right t to make representations and because it infringed and encroached on his right to procedural fairness.

[6] The parties are ad idem that the matter is urgent.

Procedural fairness

[7] At the commencement of the NEC meeting an item was placed on the agenda "Security of the Eastern Cape Chairperson" motivated on the basis that an investigation had been initiated against the Eastern Cape Chairperson and NEC members. Applicant initiated the investigation.

[8] The applicant's case is that the constitution of the union provides for a disciplinary process. The applicant may therefore only be removed from his office pursuant to a disciplinary enquiry that meets the requirements of clause 31 of the constitution.

[9] The applicant's second leg of his case is that the constitution provides that he may be removed by ballot but then the pallet must be conducted by the National Congress.

[10] Clause 31 provides that the procedure set out shall be applicable to the Union only. It provides for the constitution of a disciplinary committee and a procedure. In terms of the procedure any member or group of members may request in writing an investigation into alleged misconduct. Upon receipt of such a request the NEC (and others) may direct that an investigation be conducted by the investigating committee provided the member whose conduct is under investigation is informed of the investigation. The committee must then render a report and if the report warrants a disciplinary hearing the committee must convene a hearing.

[11] It is common cause that no such investigation was conducted, and no such disciplinary hearing was held.

[12] The first and second respondents contend that a truncated disciplinary hearing was held during the NEC meeting of 28th July 2020. According to the respondents the applicant when informed that there was a secret investigation directed at the Eastern Cape leadership, the applicant confessed that he conducted the secret investigation. The NEC was dissatisfied with his conduct and gave him the option to resign or to be removed from his position. The applicant then apologised, according to him for not following the correct procedures. The apology was not good enough for the NEC who then conducted a ballot to establish whether the NEC could trust the applicant. The outcome was that the NEC determined by ballot that could not trust the applicant and with immediate effect terminated his position as General Secretary.

[13] The applicant is a member of the first respondent and is no contractual relationship with the first respondent. The terms of the contract are to be found in the constitution. He is contractually entitled to a disciplinary enquiry as provided for in the constitution. As such he is at least entitled to be forewarned before the NEC disciplined him. He had no prior knowledge of the agenda item under which the NEC raised the matter, confronted him and dismissed him. The truncated disciplinary hearing that the respondents rely upon falls short of what the applicant is contractually entitled to. In addition, the applicant was never given a proper opportunity to explain why he investigated the Eastern Cape officials.

[14] The applicant does not dispute that the NEC has the power to discipline him to apparently follow the disciplinary procedure.

Substantive fairness

[15] The applicant disputes the power of the NEC to remove him from his position by ballot. The capture secretary is elected at the National Congress. It is only the National Congress that may by ballot remove the General Secretary from office.

[16] The NEC does not have the power to remove the General Secretary from office by ballot. The NEC must follow the disciplinary process. During argument the respondents contended that a hybrid procedure was followed in that the NEC found the applicant guilty of misconduct through a truncated disciplinary procedure and they are often determined the appropriate sanction by ballot. The NEC thus removed the applicant from his position as General Secretary by ballot. The NEC did not have that power.

[17] In a supplementary founding affidavit applicant stated that while the matter was postponed to 13 August 2020 the respondent made it known that his position as General Secretary would be filled. The applicant may well have believed that that is what was going to happen although it appears that it was not the intention of the first respondent.

[18] This court in this matter is called upon to deal with the position of General Secretary and not the employment status of the applicant. The applicant wears two hats, that of an employee and that of General Secretary.

[19] The NEC by ballot removed the applicant from his position as General Secretary.

[20] In summary the conduct of the respondents in removing the applicant from his position as General Secretary by ballot on 28 July 2020 was unlawful. The reliance upon a truncated disciplinary enquiry falls short of what is required by the constitution of the union.

Costs

[21] There are no reasons why a cost order is appropriate. The parties remain in an official relationship.

[22] It is ordered that:

[22.1] The matter is dealt with as an urgent matter.

[22.2] The decision by the NEC on 28 July 2020 removing the applicant from his position as the General Secretary of the first respondent is declared unlawful.

[22.3] The applicant is reinstated in his position as the General Secretary with effect from 28 July 2020.

[22.4] There is no order as to costs.

___________

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant:

Adv N Cassim SC

Instructed by:

Mashiane Moodley & Monama Inc

For the Respondents: Adv J Basson

Instructed by:

Thabang Ntshebe Attorneys