---

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: C122/16

Not Reportable

In the matter between:

FOOD AND ALLIED WORKERS UNION...............................................First Applicant

NAZO ATWELL......................................................................................Second Applicant

MNGUNI RAYMOND..............................................................................Third Applicant

MASEMOLA KATISHI..........................................................................Fourth Applicant

PHAKEDI MOLEKO..................................................................................Fifth Applicant

OLIVER MAKR..........................................................................................Sixth Applicant

And

CHAUKE KHAZAMULA NORMAN.....................................................First Respondent

BREDA JACQUELINE........................................................................Second Respondent

XWAZI SONGEZILE.............................................................................Third Respondent

GCWENSA BONGANI........................................................................Fourth Respondent

GIDANA MANDLA..................................................................................Fifth Respondent

MBEKI MONWABISI..............................................................................Sixth Respondent

KONOFANA MONWABISI................................................................Seventh Respondent

KHUMISI ISHMAEL............................................................................Eighth Respondent

MTHANTI BASIL...................................................................................Ninth Respondent

Heard: 06 July 2016

Delivered: 12 July 2016

LEAVE TO APPEAL: JUDGMENT

MOLAHLEHI J

Introduction

[1] This is an application for leave to appeal to the Labour Appeal Court against the whole of judgment and order made by Steenkamp J on 5 April 2016. The order made in that judgment reads as follows:

‘37.1 The expulsion of the first seventh applicants as members and office bearers of FAWU and as delegates to the national congress is suspended pending the determination of Part B of this application.

37.2 The disciplinary proceedings against the eighth and the ninth applicants, Messrs Khumalo and Mthanti, before the Notice Executive Committee (NEC) and disciplinary sub-committee are suspended pending the determination of part B.’

[2] Part B is an application for a declaratory order making the above order final. The purpose of this part of the litigation is to determine whether the NEC has the power to expel the respondents from the union as members and office bearers.

[3] The applicants, in their application for leave to appeal, contend that the court erred in finding that the NEC does not have original jurisdiction to expel members in that the only "appropriate level" to the union's structure may expel the respondents. The effect of this finding, according to them, is that members who hold elective position can never be expelled from membership of the union until they have been removed from their elected positions. This finding, according to them, disregard the following:

‘1.1 That the NEC is a supreme decision making body between national congress, which hold (sic) once 4 (four) years.

1.2 That Clause 20.6.14 grants the NEC the express power "to do such other lawful things as in the opinion of the NEC may appear to be in the interests of the union or its members and which are not inconsistent with the objectives or any other matter provided for in the Constitution".

1.3 That the Constitution does not preclude the NEC, acting in the interest of the union and members from expelling members.

1.4 That the judgment of Rabkin-Naiker J is distinguishable as it dealt with the powers of the NOB, having found that the NOBs sought to remove office bearers by means of exclusion.’

[4] In Chauke and Others v FAWU and Others,[1] the Court held that clause 20.6.1 of the Constitution of FAWU does not contemplate a situation in which the NOBs may remove office bearers by means of expulsion. It was for this reason that the court held that the expulsions were not in compliance with the constitution.

[5] The applicants distinguished that judgment from the present matter on the basis that it dealt with the power of the NOBs to discipline office bearers whereas in the present matter the issue involved the powers of the NEC.

[6] The judgment is further criticized by the applicants on the basis that it disregarded following:

a. the expulsion of the office bearers of the respondents was consequent upon the expulsion of the office bearers as members of the union.

b. The fact that the NEC enjoys incidental powers to expel the respondents as members of the union; and accordingly in expelling the respondents the NEC did not infringe on the rights.

c. The principle that in interpreting the constitutions of voluntary associations a benevolent interpretation should be adopted.

d. that where no rights have been infringed in the context of an interdict it is not necessary to enquire into the remainder of the requirements of an interdict.

[7] In relation to the issue of the consideration of suitable other available remedies, the applicants contended that the court erred in its application of the relevant facts. They further in this respect contended that the alternative remedy was available to the respondents in the form of the appeal to the National Congress which was scheduled for 18 April 2016.

[8] In argument counsel for the applicant argued that although the Constitutional Court (Con Court)  decision in National Treasury and Others v Opposition to Urban Tolling Alliance and Others (OLTA),[2] was decided in the context of public the issue relating to administration, the broad principles discussed in that case find application in this matter. I discuss the principles enunciated in that case later in this judgment. He further argued that there were prospects of success that another court could reasonably arrive at a different decision to that of Steenkamp J. He sought to persuade this court to adopt a flexible approach in determining whether or not an interim order is appealable.

[9] The respondent opposed the application, contending that the order was not appealable when regard is had to the provisions of s 166 of the Labour Relations Act of 1995.

[10] In the alternative the respondent’s counsel argued that if it was to be found that the order is appealable then that means that the findings made becomes definitive of the rights of the respondents and therefore the question whether another court may come to a different conclusion becomes res judicata. This argument is based on the findings made in the judgment of Rabkin Naicker, J. Reliance is specifically based on paragraphs [18] and [19] of that judgment which read as follows:

‘[18] Two observations made in the with respect to the respondent’s reliance on clause 25. First, that it cannot be corrected that any of the bodies of office bearers can discipline any member without reference to the level in the Union’s structure. The Constitution requires the requested body to determine sanction in respect of members holding positions in the different levels of organization, just as it requires a requisite body to hear an appeal. Secondly, clause 24 which deals with the removal from office of office bearers, cannot simply be bypassed and be rendered superfluous. A at section 95 of the LRA is instructive.

[19] The basis for requisite bodies to hear appeals as well as the need for separate provisions governing the discipline members per se and the removal from office of office bearers, is to be found in Section 95 (5) of the LRA which sets out the requirements for registration of the trade union and specifies the provisions union's constitution (and that of registered employers' organisation) must contain. Important for our purposes are the following clauses requiring that a constitution should:

(c) establish the circumstances in which a member will no longer be entitled to the benefit of membership;

(d) provide for the termination of membership;

(e) provide for appeals against loss of the benefit of membership or  termination of membership, prescribe a procedure for those appeals in determine to which those appeals may be made"

(m) establish the circumstances and the manner in which office- bearers, officials and, in the case of a trade union, trade union representatives, may be removed from office;

(n) provide for appeals against removal from office of office bearers, officials and, in the case of the trade union, taking representatives, prescribe a procedure for those appeals and determined the body to reach those appeals may be made.’

Legal principles: interim interdicts appealable?

[11] It is trite that any party aggrieved by an order or judgment of the Labour Court has the right to appeal against such judgment or order to the Labour Appeal Court (the LAC). An appeal to the LAC can only be with leave from the Labour Court. In terms of s 166 of the LRA an appeal lies against ‘any final judgment or final order’. The underlying policy arising from this provision is that the legislature seeks to discourage appeals against interlocutory orders. The policy is based on the consideration of avoiding piece meal approach to dispute resolution. 

[12] Interlocutory orders are defined by Cilliers, Loots and Nel in Civil Practice of the High Court in the following terms:

‘An interlocutory order is an order granted by a court at an intermediate stage in the course of litigation, settling or giving directions with regard to some preliminary or procedural question that has arisen in the dispute between the parties. Such order may be either interlocutory or an interlocutory order final or definitive effect. The distinction between a purely interlocutory order interlocutory order final effect is of great importance in relation to appeals.’

[13] The issue that often arises as concerning interlocutory orders is whether a particular order is appealable or not? The answer does not necessarily depend on the form of the order but rather on its substance which is either definitive or of final effect.[3] Ultimately it is the effect of the order on the substance of what is in dispute that would determine whether or not such an order is appealable. In Road Accident Fund v Commission for Conciliation, Mediation and Arbitration and Others,[4] Tlhotlhalemaje, AJ (as he then was) in dealing with this issue had the following to say:

‘[25] The question whether an interdict is interim or final is not a matter of form but of substance. The question depends on the effect of the interdict upon the issue and not only upon its form. An interim interdict is ordinarily a court order preserving or restoring the status quo. It would ordinarily be granted pending the final determination of the rights of the parties or some other event which forms part of, or is aligned to the subject matter of the litigation between the parties. By its nature, an interim order is intended to serve parties’ rights temporarily, and does not involve a final determination of the parties’ rights, nor does it affect their final determination.’

[14] The above is in line with what was said in South African Motor Industry Employers’ Association v South African Bank of Athens Ltd,[5] where the court held that in determining whether a decision is appealable consideration should not be given only to the mere form of the order but also predominantly to its effect.

[15] In Beinash v Wixley,[6] Mahommed CJ (as he then was) in dealing with this issue had the following to say:

‘This problem often arises when one or other party seeks to appeal against some preliminary or interlocutory decision, which is made by a court before it has arrived at a final conclusion on the merits of the dispute between the parties. The approach of the court in such circumstances is a flexible approach. In the words of Harms AJA in Zweni v The Minister of Law and Order 1993 (1) SA 523 (A) at 531J - 532A:

"The emphasis is now rather on whether an appeal will necessarily lead to a more expeditious and cost-effective final determination of the main dispute between the parties and, as such, will decisively contribute to its final solution."

What the court does is to have regard to all the relevant factors impacting on this issue. It asks whether the decision sought to be corrected would, if decided in a particular way, be decisive of the case as a whole or a substantial portion of the relief claimed, or whether such decision anticipates an issue to be determined in the main proceedings. The objective is to ascertain what course would best "bring about the just and expeditious decision of the major substantive dispute between the parties”.’

[16] It is apparent that the authorities have over the years grappled with formulating the test for determining whether an interim order or judgment can be said to be definitive or final in effect. In South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd,[7] the court quoted with approval the test which was formulated by Schreiner JA in Pretoria Garrison Institutes in the following terms:

‘The general test as to whether an order is a simple interlocutory one or not was stated by SCHREINER, J.A., in the Pretoria Garrison Institutes case, supra, as follows (at P. 870):

"... a preparatory or procedural order is a simple interlocutory order and therefore not appealable unless it is such as to 'dispose of any issue or any portion of the issue in the main action or suit' or, which amounts, I think, to the same thing, unless it 'irreparably anticipates or precludes some of the relief which would or might be given at the hearing.”’

[17] In OUTA, the case relied on as indicated earlier by counsel for the applicants,  the Con Court in dealing with the issue  whether it should entertain the appeal against an interim order which had been issued by the Gauteng High Court had the following to say regarding the general stance taken by the courts concerning appeal against interim orders:

‘[24] It is so that courts are rightly reluctant to hear appeals against interim orders that have no final effect and that in any event are susceptible to reconsideration by a court when the final relief is determined. That, however, is not an inflexible rule.  In each case, what best serves the interests of justice dictates whether an appeal against an interim order should be entertained. That accords well with developments in case law dealing with when an appeal against an interim order may be permitted.’[8]

[18] The Constitutional Court had earlier, in International Trade Administration Commission v SCAW South Africa (Pty) Ltd,[9] upheld the jurisprudence that had emerged from the Supreme Court of Appeal (SCA) regarding the approach to adopt when dealing with appeals against interim orders. It found that the law was authoritatively restated in the Zweni’s case and accordingly had the following to say:

‘As we have seen, the Supreme Court of Appeal has adapted the general principles on the appealability of interim orders, in my respectful view, correctly so, to accord with the equitable and the more context-sensitive standard of the interests of justice, favoured by our Constitution. In any event, the Zweni requirements on when a decision may be appealed against were never without qualification. For instance, it has been correctly held that in determining whether an interim order may be appealed against regard must be had to the effect of the order rather than its mere appellation or form. In Metlika Trading Ltd and Others v Commissioner, South African Revenue Service the Court held, correctly so, that where an interim order is intended to have an immediate effect and will not be reconsidered on the same facts in the main proceedings it will generally be final in effect.’

Evaluation

[19] The relief granted in this matter, as it currently stands, does not, in my view, constitutes an end in itself but is only an interim measure to preserve the status quo in relation to the question of whether the NEC has the power to expel the respondent as members of the union. This much is apparent from the reading of the judgment, the details of which are dealt with below. Put in another way, the order does not preserve a clear right for the respondents in as far as  the issue of expulsion is concerned but rather affords them the constitutional protection pending outcome of the main matter. It does not dispose of the issue of whether the NEC has implied power to expel officials of the union as members.

[20] I do not agree with the applicants' submission that reliance on the earlier decision of Rabkin-Naicker J, necessarily makes the order a definitive and of final effect justifying granting leave to appeal to the LAC. Steenkamp, J in the earlier judgment states clearly that:

‘[28] Prima facie, the same principles hold true for discipline by the NEC. Only the appropriate level of the union’s structure may expel the applicants.

[29] In any event, the NEC only has the power to suspend – and not to expel office bearers in terms of clause 20.6.11 of the constitution:

“The NEC, subject to the provisions of this constitution, shall have the power:

…

20.6.11 to suspend any BEC, PEC or office-bearer or members for violations of provisions of this constitution or in the interest of the union.”

[30] Given the provisions of the constitution and the judgment of Rabkin-Naicker J, I hold that the applicants have established at least a prima facie right, even if open to some doubt, not be expelled by the NEC. That decision should be suspended pending the determination of part B.’[10]

[21] The Learned Judge further, in making the order was influenced by the balance of convenience and apprehension of the irreparable harm. These issues are dealt with as follows:

‘Balance of convenience

[31] The balance of convenience favours the applicants. If their positions are filled before this dispute is finalised, it will be nigh impossible to regain them. And they would be prevented from attending the imminent national congress and the provincial congresses preceding the national congress. The respondents, on the other hand, will suffer no great inconvenience if the action against the applicants is suspended.

Apprehension of irreparable harm

[32] The applicants have at least an apprehension of irreparable harm. Should the decision of the NEC stand, they will not be able to attend the national congress; their positions will be filled, and it would be very hard for them to regain those positions.’[11]

[22] The issue of the perceived delay in prosecuting part B of the litigation does not assist the applicants. There is nothing in law that stops them from approaching the Registrar and requesting to have the matter rerolled on a priority basis. They could also have requested the Judge President for a judicial file management of the matter.

[23] In my view the applicants have failed to make out a case justifying the granting of leave to appeal in the context where the order made is of an interim nature and the matter is still to be determined in terms of prayers set out in part B of the notice of motion. In the circumstances of this case, I see no reason both in law and fairness why costs should not follow the results.

Order

[24] In the premises, the application for leave to appeal to the Labour Appeal Court against the whole judgment and the order made by Steenkamp, J, on 5 April 2016, is dismissed with costs.

E, Molahlehi, J

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate. T Motau SC

Instructed by: Werkmans Attorneys

For the Respondent: Advocate. HM Viljoen with Advocate JKS Macdonalds

Instructed by: BCHC Attorney

---