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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, DURBAN

CASE NO: 14515/2014

In the matter between:

MOHAU MOKGATLA......................................................................................FIRST APPLICANT

NOMFEZO MDINGI....................................................................................SECOND APPLICANT

DION MAKHURA...........................................................................................THIRD APPLICANT

PHUMLILE SHANGE..................................................................................FOURTH APPLICANT

SELLO SELEPE................................................................................................FIFTH APPLICANT

LANCE VEOTT................................................................................................SIXTH APPLICANT

ZAKHELE KHUMALO............................................................................SEVENTH APPLICANT

WYCLIFF MABUSELA..............................................................................EIGHTH APPLICANT

KENNEDY NKOSI.........................................................................................NINTH APPLICANT

KGOSI MAKWATI........................................................................................TENTH APPLICANT

THABISILE MANQELE.......................................................................ELEVENTH APPLICANT

NTOKOZO NZUZA.................................................................................TWELFTH APPLICANT

MAMPETI MALETE...........................................................................THIRTEENTH APPLICANT

and

SOUTH AFRICAN MUNICIPAL WORKERS UNION...............................FIRST RESPONDENT

SAMUEL MALOPE................................................................................SECOND RESPONDENT

JOHN DLAMINI........................................................................................ THIRD RESPONDENT

LORRAINE BAITSIWE.........................................................................FOURTH RESPONDENT

WALTER THELEDI....................................................................................FIFTH RESPONDENT

MOSES MIYA.............................................................................................SIXTH RESPONDENT

ORDER

The rule is discharged with costs, including the costs of two counsel, where employed.

JUDGMENT

Penzhorn AJ:

[1] The applicants seek confirmation of the order granted and rule nisi issued on 16 December 2014 in the following terms:

“1. The respondents are interdicted from proceeding with the Central Executive Committee (CEC) scheduled for 17^th to 19^th December 2014 in Durban.

2. The Central Executive Committee (CEC) meeting scheduled for 17^th to 19^th is declared unlawful and invalid.

3. The second to sixth respondents are interdicted from convening any meeting of the first Respondent without the invitation and/or participation of the Applicants.

4. The Finance Committee (FINCOM) meeting of the first respondent held on the 15^th to 16^th December 2014 is hereby set aside.

5. A rule nisi is hereby issued calling upon the first to sixth respondent to show cause on the 6^th January 2015 at 10:00 why this order should not be made a final order.

6. The respondents can anticipate this order by giving 24 (twenty four) hours’ notice of their intention to anticipate it.

7. That the respondents are ordered to pay the costs of this application on a scale between attorney and own client including costs occasioned by the employment of two counsel[s].”

(When I reserved judgment on 4 February 2015 paragraph 3 was amended but this amendment is not relevant to this judgment.)

[2] It is common cause that the applicants were not invited to the CEC meeting scheduled for 17 to 19 December and did not participate in the FINCOM meeting held on 15 and 16 December last year.

[3] The whole basis for the relief claimed then rests upon the applicants’ entitlement to be informed of and to participate in these organs of the first respondent. 

[4] In terms of section 9 of the first respondent’s constitution the CEC comprises of the national office bearers elected by national congress, provincial office bearers elected by provincial congresses, one representative for every completed five thousand members in such province provided that at least one third of the representatives must be woman, and officials of the union as decided by the NEC or national office bearers.

[5] FINCOM consists of the national treasurer, provincial treasurers, provincial secretaries as well as such other persons as may be appointed by the CEC from time to time.

[6] On the evidence before the court none of the applicants at the time this application was bought qualified as members of FINCOM.  That leaves the question of whether they were at the relevant time members of the CEC, entitling them to have notice of meetings, i.e. the meeting of 17 to 19 December, and being entitled to be invited and/or participate in such meetings.

[7] In this regard paragraph 3 of the order as granted on 16 December is considerably broader than the order actually sought in the notice of motion.  The order sought in paragraph 4 of the notice of motion, which corresponds with paragraph 3 of the order granted, seeks to interdict the second to sixth respondents “from convening any Central Executive Meeting and/or a Special Central Executive Meeting without the invitation and/or the participation of the applicants”.  In other words it does not seek to interdict “any meeting of the first respondent”.

[8] For present purposes I accept that where the rule nisi referred “to any meeting” it was clearly intended to refer to meetings of the CEC.

[9] On 29 September 2014 Vally J granted an order in the Gauteng High Court in case no. 21815/2014 in favour of the applicants, as well as other applicants in that matter, paragraphs 2, 3 and 4 of which read as follows:

“2. The decision of the first respondent to expel the first, second, third, fifth, seventh, ninth, tenth, eleventh, twelfth and thirteenth applicants is declared to be unlawful and invalid and is set aside.

3. The decision of the first respondent to suspend the fourth and fourteenth applicants is declared unlawful and is set aside.

4. The decision of the first respondent to remove the fifteenth applicant is declared unlawful and is set aside.”

[10] The first, second, third, fourth and fifth applicants in that matter are again the first, second, third, fourth and fifth applicants now before me.  The seventh applicant is now the sixth applicant, the ninth applicant is now the seventh, the tenth is the eighth, the eleventh is the ninth, the twelfth is the tenth, the thirteenth is the eleventh, the fourteenth is the twelfth and the fifteenth is the thirteenth applicant now before me.

[11] The effect of the court setting aside the decisions of the first respondent to expel and/or suspend and/or remove the applicants, as the case may be, clearly has the effect that any subsequent acts by the first respondent in respect of such applicants, which depend on such first act being valid, will be unlawful.  In this regard the SCA held in Seale v Van Rooyen NO and Others 2008(4) SA29 at 50 C-D:

“I think it is clear from Oudekraal, and it must in my view follow, that if the first act is set aside, the second act that depends for its validity on the first act must be invalid as the legal foundation for its performance was non-existed.”

[12] On the facts before me and applying the Plascon-Evans test, at the time this application was brought, 15 December 2014, none of the applicants were office bearers of the first respondent entitling them to attend or be invited to meetings of the CEC, or for that matter FINCOM. In summary the position each applicant held with the first respondent qualifying them as members of the CEC (and/or FINCOM) is as follows:

[12.1] The first applicant had been the provincial secretary for Gauteng but his term in office expired in August 2014.

[12.2] The second applicant had been a deputy provincial secretary for Gauteng and his term in office also expired in August 2014.

[12.3] The third applicant had been the regional chairperson for Johannesburg and his term of office also expired in August 2014.

[12.4] The fourth applicant was the deputy regional chairperson for Johannesburg and his term of office also expired in August 2014.

[12.5] The fifth applicant was the provincial chairperson for the North West Province but a motion of no confidence against him was passed on 25 November 2014 as a result of which he lost this position.

[12.6] The sixth applicant was not re-elected as a shop steward by his constituency, as a result of which he lost his position as provincial chairperson for the Western Cape. 

[12.7] The seventh applicant, who had been the provincial chairperson of Mpumalanga, was also not re-elected as shop steward.

[12.8] As regards the eighth applicant, he had been a shop steward from Secunda, but his three year term in office lapsed in August 2014.

[12.9] The same applies to the ninth applicant who had been a shop steward from Emalashleni, but his term also expired in August 2014.

[12.10] The tenth applicant’s term as shop steward also lapsed in
August 2014.

[12.11] The eleventh applicant was a member of the first respondent and not a shop steward or office bearer.

[12.12] The twelfth applicant had been a shop steward at Umhlathuzi Local Municipality but was subsequently appointed as human resource manager at Ilembe.  This resulted in him ceasing to be a shop steward in terms of section 5.4.9 of the first respondent’s constitution.

[12.13] The thirteenth applicant had been the national treasurer of the first respondent but she was removed from this position by way of a vote of no confidence, in terms of clause 16.5.4 of the constitution, at a special CEC meeting in May 2014.

[13] There is no dispute on the affidavits that in order to occupy positions in SAMWU the applicants were only eligible to do so after they had been elected as shop stewards.[1]  It follows that the expiry of a term of office as a shop steward also means that the term of office which an applicant occupies also comes to an end.[2]

[14] On the papers before me then, none of the applicants at the time these proceedings were brought held office within the structures of the first respondent, in terms of which they were members of the CEC, that is unless the judgment of Vally J had the effect of altering this, or the subsequent judgments to which I will refer had such an effect.

[15] As I read Vally J’s judgment, what His Lordship set aside were the decisions to expel the applicants as members of the first respondent.  He did not deal with any elected office they held within the structures of the first respondent and which they then lost or no longer held by reason of the normal functions of the first respondent.

[16] The right to occupy a position in SAMWU is contractual in nature and arises out of membership thereof and the provisions of its constitution.[3]

[17] By way of example, the fact that a term of office as provincial secretary has expired, the situation of the first applicant, was not affected by the judgment.  The judgment had nothing to do with the fact that the first applicant was also the provincial secretary of Gauteng.  What it dealt with was his membership per se.  Putting it differently, had the unlawful act, as found by Vally J to have occurred, namely his expulsion, not taken place, he would still have ceased being provincial secretary in August 2014, for the simple reason that his term had expired. 

[18] Here also for instance the fact that the twelfth applicant was transferred out of his constituency and for that reason and in terms of the constitution ceased to be a shop steward, was not covered by the order made by Vally J.  Nor could it be.  His transfer was in the normal course of events and was clearly not unlawful.

[19] Here I was also referred by counsel for the applicant to the order made by Victor J on 5 December 2014 in case no. 21815/204 where she ordered the respondent officials of the first respondent in that case “to allow the applicants access to the first respondent’s offices in the Republic of South Africa without restriction and to their specific positions they held in the first respondent”.  In a later order granted by the same judge, on 15 December 2014, the respondents were held not to have complied with the order of 5 December 2014 “to the effect that the applicant(s) be restored to their leadership positions they held prior to their application of Vally J.”

[20] But all this to my mind begged the question as to what positions the applicants indeed held before the date of Vally J’s order, 29 September 2014, and whether or not such positions were effected by his order.

[21] These orders also do not affect positions lost after 29 September 2014 through the lawful workings of the first respondent’s constitution.

[22] All this is demonstrated by the decision in Tshongweni v Ekurhuleni Metropolitan Municipality[4] in which the court found that it was not competent to reinstate a dismissed employee where his fixed-term contract had expired.  The court held that all the authorities suggest that the remedy of reinstatement is confined to reinstatement into the contract of employment in existence at the date of dismissal.  If the duration of that contract is limited and the expiry of the contract precedes the date on which the finding of unfair dismissal is made, reinstatement is not a competent remedy.[5]

[23] This principle also applies when shop steward positions were lost after the court order of Vally J.  Just as Van Niekerk J found in Tshongweni that the court cannot make a new contract for an employee whose contract has expired,[6]  this court too cannot make a new contract for the parties contrary to the provisions of the first respondent’s constitution.

[24] By reason then of the fact that the applicants, none of them, held office entitling them to attend and participate in the CEC, or for that matter FINCOM, the applicants have failed to make out a case for the relief claimed.

ORDER

[25] In the result the rule is discharged with costs, including the costs of two counsel, where employed.

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G.H. Penzhorn A.J.

Date of Hearing : 4 February 2015

Date of Judgment : 20 February 2015

Counsel for Applicants : M.M. Petlane, with him C.M. Sihlali

Instructed by : Mathopo Attorneys

Johannesburg

Counsel for Respondents : G.O. Van Niekerk S.C., with him K. Allen

Instructed by : Maenetja Attorneys

Johannesburg

c/o Tomlinson Mnguni James

Umhlanga Rocks

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