Tonyela and Others v National Union of Metal Workers Union of South Africa (J 300/22) [2022] ZALCJHB 67; (2022) 43 ILJ 1895 (LC) (18 March 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 300/22

In the matter between:

GCOBANI TONYELA AND OTHERS Applicants

and

NATIONAL UNION OF METALWORKERS UNION

OF SOUTH AFRICA Respondent

Heard: 18 March 2022

Delivered: 18 March 2022

Summary: Urgent application – Jurisdictional powers of the Labour Court are to determine a dispute about an alleged non-compliance with

the constitution of a trade union. The nature of a dispute to be determined by the Labour Court is that of non-compliance with the constitution. In order to engage the powers of the Labour Court either the trade union or any of its members or potential members

should allege non-compliance with the constitution of the trade union.

The word determine in law means the conclusion of a dispute by rendering of a final decision. Where the dispute is about non-compliance, the Labour Court must give a final decision as to whether there has been non-compliance or compliance. Compliance is the act of complying with a command, desire, wish, order, or rule. In order to succeed, a party alleging non-compliance must point out the clause in the constitution allegedly not complied with. Failure to do so disengages the jurisdiction of the Labour Court because there will be nothing to determine.

Often times the jurisdiction of the Labour Court is engaged on an urgent basis simple because the outcome of a dispute will be tied up to a happening of an event in terms of the constitution – in this instance the holding of elections. As a result, parties choose to seek an interdict of that happening whilst the Court determines the dispute for the parties. Should the Labour Court be able to determine the dispute on an urgent basis, it becomes unnecessary to issue an interdict. In the circumstances of this case, the applicants have demonstrated no non-compliance with the constitution. Held: (1) Numsa did not breach its constitution. Held: (2) The allegation of non-compliance as well as the entire application is hereby dismissed. Held: (3) There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] Before me is an urgent application, in terms of which the members of the National Union of Metalworkers of South Africa (Numsa); namely, Tonyela, Nyanza, Jafta, Tladi and Mona (“the members”)

allege that Numsa has not complied with its constitution. Section 157 (1) of the Labour Relations Act (LRA)[1] affords the Labour Court exclusive jurisdiction to deal with this matter since the LRA in section 158 (1) (e) of the LRA empowers this Court to determine a dispute about an alleged non-compliance with the constitution of a trade union. Since the members have alleged non-compliance, the jurisdictional powers of this Court are engaged. The members as a sequel to the alleged non-compliance, asserts that certain ancillary reliefs should afforded by this Court. Section 158 (1) (a) (ii) empowers this Court to make an appropriate order of an interdict. Given the view this Court takes at the end, it is unnecessary to issue any interdictory reliefs. If this Court were to determine that there has been non-compliance with the constitution of Numsa, it would have been minded to issue an interdict pending the compliance with the constitution. Numsa duly opposes the application.

Background facts

[2] A brief excursion or summation of the facts of this case is necessary. Pertinent to the issue to be resolved and or determined by this Court, it is common cause that there is a dispute between Numsa

and its members regarding an alleged non-compliance with the constitution of Numsa. Numsa disputes any non-compliance. Numsa is en route to hold regional congresses. The one congress that somehow ignited an urgent determination of the dispute is happening this weekend (19-20 March 2022). The other congresses are to take place on 24-25 and 25-27 March 2022 respectively. It is the contention of the

members that the happening of those congresses will be in breach of the constitution of Numsa.

[3] The genesis of the allegations of non-compliance is the election process of the local office bearers for the Hlanganani Rustenburg Local (Hlanganani), Ladlakova Ekurhuleni Local (Ladlakova) and Nelspruit Ehlanzeni Local (Nelspruit) respectively. The members allege that those elections were held in violation of the constitution of Numsa. With regard to Hlanganani, the members alleged in their founding papers that not all attendees were paid up members as required by Chapter 2 of the constitution and were not entitled to attend and vote at the elections. Owing to that, a dispute emerged regarding the verification and the credentials of the shopstewards in attendance. The gripe of the members as set out in the papers is that

given that that there was a dispute, the election guidelines – which were not availed in Court - prescribed a proper verification of the credentials before an election may be held. It remains unclear whether those elections guidelines are part of the constitution or not. Because of the dispute over the verification, elections were presided over by local office bearers, the regional chairperson, and the secretary respectively. Those elections produced two set of office bearers. The members allege that the one group produced by the regional chairperson and secretary is not legitimate, whilst the group produced by the local office bearers was legitimate. Owing to these contentions, on 12 March 2022, the special regional committee met and validated the one group as being legitimate. On this, the members allege that the endorsement did not follow the constitution of Numsa.

[4] With regard to Ladlakova, the members allege that chapter 9 (2) (f) of the constitution was breached because, of inadequate notification of the local shopstewards council meeting. Given this alleged breach, the members called for a rerun of the elections but the region has ignored that call. Numsa contends that the appropriate remedy would have been to compel the region to rerun as opposed to approaching this Court on a self-created urgency, since the impugned elections happened in September 2021 already.

[5] With regard to Nelspruit, the gripe is the verification exercise. According to the members, by not conducting the verification exercise there was a breach of the constitution and the adopted guidelines –

which were not produced in Court.

Contentions of the members

[6] Mr Manchu, who appeared on behalf of the members, submitted that the provisions of chapter 4 of the Numsa constitution were breached due to lack of the verification exercise before elections. He pointed the Court to clause (2) (ii) which reads: “Election of office bearers: The Local Shop Steward Council shall from amongst its members Local Office Bearers. These shall be a Chairperson, Deputy Chairperson, Secretary and Deputy Secretary. These four shall be the Local’s representatives at the Regional Executive Committee.”

[7] He further submitted that since the elections were not preceded by a verification exercise – which the members are not asking this Court to conduct – there could not be legitimate local representatives at the looming regional congresses. As a result, this Court must issue an order halting the looming congresses and order a rerun of the elections.

Contentions of Numsa

[8] Mr Raizon appearing for Numsa submitted that there is no urgency and any urgency is a self-created urgency. On that score, this Court should dismiss the application due to lack of urgency. He further submitted that barring the inadequate notice in respect of Ladlakova, the members failed to demonstrate any non-compliance with the Numsa constitution in respect of the others.

Evaluation

[9] The nature of the dispute to be determined by this Court is that of non-compliance with the constitution of a trade union. It is trite that in motion proceedings a party stands and fall by its founding

papers. In other words, a party must allege in its founding papers the provisions of the constitution that has not been complied with. Section 158 (1) (e) of the LRA does not empower the Labour Court to determine a dispute about an interpretation and application of the constitution per se. The first and most important allegation to make in the founding papers is to set out the provisions allegedly not complied with. It may happen that in determining the dispute over non-compliance, a Court may interpret a provision in order to establish a non-compliance.

[10] Hearing a matter as one of urgency involves an exercise of discretion. The only reason why this Court entertained this matter as one of urgency is that the regional congresses were looming. In the exercise of my discretion, I heard the application. In my view, there must have been a reason why the legislature found it necessary to involve the Labour Court in a dispute that involves trade unions and its members or potential members. In my view the reason emanates from the purpose of the LRA as outlined in section 1 of the LRA; namely to advance labour peace; to promote orderly collective bargaining and effective resolution of labour disputes. Given these imperatives, such disputes possess inherent urgency, the same way as section 189A (13) of the LRA, disputes do.

[11] A prolonged dispute between the trade union and its members threatens labour peace and may stifle orderly collective bargaining or effective resolution of labour dispute. Since the legislature deemed it necessary for the Labour Court to deal with a dispute of non-compliance, this Court cannot send back warring parties on a simple basis that there is no urgency. That approach may lead to labour unrest, compromise of constitutional rights and ineffective resolution of labour disputes. A constitution of a trade union is a statutory document. Non-compliance with it equates non-compliance with the law and ultimately non-compliance with the rule of law. Section 96 (1) (b) of the LRA requires submission of a constitution in order to gain registration. Section 95 (1) (b) of the LRA requires an adoption of a constitution that complies. Therefore, a constitution of a trade union is an important founding document in terms of the LRA. When it is not complied with, this Court is exalted to act without any delay.

Has the members made a case of non-compliance?

[12] In order to ignite the exclusive jurisdictional powers of the Labour Court non-compliance

must be alleged. Thereafter, the power of this Court is to determine the alleged dispute of non-compliance. In law the word determine means the conclusion of a dispute by rendering a final decision. In relation to Hlanganani, the members allege that chapter 2 of the constitution was not complied with. Chapter 2 deals with membership of Numsa. The complaint of the members in this regard is that some members who were elected are not members in ‘good standing’. Chapter 2 does not mention or define what a member in ‘good standing’ is. Clause 2 (3) deals with the consequences of termination of membership. According to the clause, a person ceases to be a member if (a) he or she resigns; (b) by being unemployed in the industry; or (c) by being expelled. Of importance, the clause provides that a member loses membership automatically 13 weeks after being unemployed in the industry. However, that member may retain membership as an associate or continuation member. To the extent that the members allege that some members are no longer employed in the industry, they needed to allege and prove that the 13 weeks reprieve period had expired and that they did not retain membership in other categories. No such allegations were made and proven.

[13] In law, compliance means an act of complying with a command, desire, wish, order or rule. The members allege that the attendees at the elective conference must be paid up members. No clause in chapter 2 refers to any paid up members. It is difficult to comprehend the notion of paid

up members. In most cases, the subscriptions of trade union memberships are paid through an employer within the contemplation of

section 13 of the LRA.

[14] The members further allege that the endorsement of the other group by the regional chairperson

and the secretary was done without following the constitution. Sadly, the members do not point out the provisions in the constitution that obliges the officials to follow a specified procedure. Absent that, there can be no case for non-compliance that can be made. Chapter 4 referred to by Mr Manchu does not make that case at all notwithstanding the fact that the chapter was not pleaded in the founding affidavit. Mr Manchu appropriately so, jettisoned any case predicated on the election guidelines. The guidelines are not part of the constitution nor has it been alleged by the members that the guidelines are part of the constitution.

[15] Accordingly, in respect of Hlanganani no case for non-compliance has been made. Therefore, the members must fail in their quest before me.

[16] In relation to Ladlakova, the members allege that chapter 9 (2) (f) of the constitution has been breached. Sadly, Numsa does not dispute this. All it does is to raise technical defences – lack of urgency – and the choice of remedy – compel the regional committee to conduct a re-run. As pointed out earlier, in the exercise of my discretion I chose to hear the matter as one of urgency. It may well be so that the members may have opted to bring some form of a mandamus. The fact that they opted to approach this Court to exercise its powers under section 158 (1) (e) of the LRA does not mean that they must be non-suited due to the available options. The jurisdictional powers of this Court remain intact.

[17] In order to determine whether chapter 9 (2) (f) of the constitution has not been complied

with, this Court is required to consider the text of the provisions. The relevant clause deals with how long is the notice period. It states that “at least ten days”. The phrase at least means not less than or at the minimum. Therefore, the minimum or a lesser period of notification is ten days. Giving less than ten days means the notice is defective. The constitution allows verbal notification directly to members at the discretion of the

local chairperson. Inasmuch as the constitution directs that a ten days’ notice be given, it further provides that “if a representative, official or office bearers does not receive a notice as described above, the proceedings of the relevant meeting are still valid.”

[18] Therefore, the non-compliance with the provisions of the constitution does not lead to a nullity of the elections. It thus become unnecessary to have a re-run. It appears to be common cause that the relevant officials had agreed to a re-run. The fact that they failed to date to call for such a re-run does not suggest that the constitution has been breached thereby. As I see it, since the proceedings are not invalidated by a lesser notice period, ordering a re-run will be ineffective in law. Accordingly, the members must fail in their quest for a re-run at Ladlakova.

[19] In relation to Nelspruit, the members do not point to any provisions of the constitution that has been allegedly breached. The case made in the founding papers is the following:

“66. YTC, through their purported delegates, expressly stated that whether or not verification is done, they will be launching this Local Shop Steward Council (LSSC). This was a direct disregard for the union’s constitution as well as NEC and CC adopted guidelines for local office bearer elections.”

[20] As indicated earlier, nowhere in the constitution is provision made for a verification

process. The allegation of direct disregard of the constitution is made in hollow. Accordingly, the members must fail in this regard.

Interdict

[21] In view of the fact that Numsa is not acting unlawfully – failing to comply with a constitution – it must axiomatically follow that this Court cannot consider any prohibition. An interdict is a remedy available

for an unlawful conduct. Hence its requirements of clear right; irreparable harm; and lack of alternative remedy. It is indeed, so that the members have a right to full compliance with the constitution of Numsa. On the evidence presented, the members failed

to demonstrate full non-compliance with the constitution of Numsa. Mr Raizon passionately argued that there exists a dispute of fact, which requires the application of the Plascon Evans rule. I do not agree. The onus lies on the members to prove non-compliance and they have failed dismally to discharge that onus. For that reason, they failed to move from the starting blocks.

Costs

[22] When it comes to costs, this Court possesses a wide discretion. In my view, this is not a matter where an award of costs is warranted. The appropriate order to make is that of no order as to costs.

[23] For all the above reasons, the urgent application must fail.

[24] In the results, the following order is made:

Order

1. It is declared that Numsa did not breach its constitution.

2. The allegation of non-compliance and the application is hereby dismissed.

3. There is no order as to costs.

_______________________

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicants : Mr T Manchu

Instructed by

: Gani Mayet Attorneys, Houghton.

For the Respondent : Mr J Raizon

Instructed by

: Minnaar Niehaus, Port Elizabeth

[1] Act 66 of 1995 as amended.