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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case No: J272/22

In the matter between:

MANCANE SIBAYA                                                                       First Appellant

 

SELLO RAPAO                                                                              Second Appellant

 

REGINALD BAATJIES                                                                  Third Appellant

 

and

 

DAVID MOLEFE N.O.                                                                      First Respondent

 

NATIONAL UNION OF MINEWORKERS                                       Second Respondent

 

Heard:           16 February 2023

 

Delivered:     24 March 2023 (This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 24 March 2023.)

 

JUDGMENT

 

PHEHANE, J

 

Introduction

[1]          This is an application in terms of section 111(3) of the Labour Relations Act,[1] by the appellants to set aside the decision by the first respondent (Registrar) of 22 November 2021, to amalgamate the trade unions named the Liberated Metalworkers Union of South Africa (LIMUSA) and the National Union of Mineworkers (NUM) and to remove the names of the previous independent trade unions named LIMUSA and NUM from the register of trade unions.

 

[2]          It is common cause that the name of the amalgamated trade union is NUM. For the purposes of this judgment, the previous independent trade union is referred to as NUM1 and the amalgamated trade union is referred to as NUM2.

 

Relevant factual background

[3]          The chronology of the main events relevant to this dispute, as set out below, paints a picture of the factual background to the dispute. It is as follows:

 

3.1.      28 November 2014: LIMUSA is registered as a trade union by the Registrar with registration number L[...].[2]

 

3.2       2018: COSATU passes a resolution that LIMUSA and NUM1 should amalgamate.[3]

 

3.3       September 2019: LIMUSA, NUM1 and COSATU National Office Bearers (NOBs) meet and agree ‘in principle’ to amalgamate LIMUSA under NUM1.[4]

 

3.4       27 June 2020: Minutes and resolution of the National Congress of LIMUSA to negotiate and conclude an amalgamation agreement with NUM1, to authorise the Secretariat of LIMUSA to pursue such negotiations on behalf of LIMUSA and to depose to any affidavit and sign all documents in respect of the amalgamation application and to appoint MMS Attorneys to give effect to the resolution. Items 6, 6,1, 6.2 and item 7 of the minutes record the ‘in principle’ agreement of September 2019 between COSATU, LIMUSA and NUM to amalgamate LIMUSA under NUM, the proposal by NUM1 that a task team comprising of COSATU, LIMUSA and NUM1 deal with staff integration and transitional matters and that delegates report to their members about the National Congress resolution to amalgamate the two unions.[5]

 

3.5      16 July 2020: First meeting of the joint task team (comprising representatives of LIMUSA and NUM1) is established to negotiate terms of reference to guide the amalgamation process.[6]

 

3.6       14 September 2020: Second meeting of the joint task team.[7]

 

3.7       15 September 2020: LIMUSA’s General Secretary (Siboniso Mdletshe) provides the LIMUSA national task team with an update on the amalgamation process.[8]

 

3.8       January and February 2021: NUM1 appoints LIMUSA’s General Secretary (Mr. Mdletshe), Deputy General Secretary (Mr. Mawonga Madolo) and other LIMUSA officials as its permanent employees.[9]

 

3.9       3 February 2021: Mr. Mdletshe provides an update on the amalgamation process on a LIMUSA letterhead.[10]

 

3.10    15 February 2021: Last joint task team meeting attended by the remaining official of LIMUSA, its National Treasurer (according to the appellants).[11]

 

3.11    15 February 2021: Task team meeting report records inter alia, the financial matters of the two unions, staff integration and NOB deployments.[12]

 

3.12    18 March 2021: NUM1 resolution is taken to give effect to the resolution of its Special National Congress held on 4 to 6 September 2019 to negotiate and conclude an amalgamation agreement with LIMUSA, to authorise the secretariat of NUM1 to pursue such negotiations on behalf of NUM1 and appoint MMS Attorneys to do all that is necessary to give effect to the resolution.[13]

 

3.13    9 April 2021: The Registrar receives the application for amalgamation of the two unions.[14]

 

3.14    7 May 2021: The Registrar sends correspondence to MMS Attorneys that the amalgamation application received on 9 April 2021 is non-compliant with the provisions of the LRA relating to the amalgamation of trade unions.[15]

 

3.15    11 August 2021: Mr. Mdletshe of LIMUSA signs the amalgamation application in terms of section 102(2) of the LRA.[16]

 

3.16    13 August 2021: Acting KZN Chairperson of LIMUSA sends correspondence to the Department of Labour, seeking the suspension of the “dissolution of LIMUSA” on account of inter alia, LIMUSA’s constitution not being complied with.[17]

 

3.17    17 August 2021: the General Secretary of NUM1 (Mr. Makgabo William Mabapa) signs the amalgamation application in terms of section 102(2) of the LRA.[18]

 

3.18    17 August 2021: Amalgamation agreement is signed between LIMUSA and NUM1.[19]

 

3.19    18 August 2021: The Department of Labour acknowledges receipt of NUM’s application for amalgamation.[20]

 

3.20    26 August 2021: The Registrar receives an undated letter ostensibly by Provincial Chairpersons of LIMUSA, inter alia, objecting to the amalgamation on the grounds that it is irregular as LIMUSA has not held a National Congress in terms of LIMUSA’s constitution to resolve to amalgamate with NUM and asks for the “co-operation” of the Registrar.[21]

 

3.21    11 September 2021: The appellants are appointed as members of the interim task team (by the Central Committee) to serve on the joint task team with NUM to negotiate the amalgamation agreement.[22] The second respondent disputes that the first appellant was a member of the task team, as he was not a NOB. It is common cause that the second and third appellants were members of the national task team.

 

3.22    14 September 2021: The appellants send a letter to the President of NUM1, essentially stating that LIMUSA exists as an independent registered union and is not an extension of NUM1 and not amalgamated with NUM1. The letter records that an Extended Central Committee meeting held on 11 September 2021 resolved to establish a new task team to resolve these issues with the leadership of NUM1 – this (new) “LIMUSA leadership task team” requests a meeting with the President of NUM1. [23] No resolution by the Extended Central Committee of 11 September 2021 was produced by the appellants appointing them as the “interim task team” or as the “LIMUSA leadership task team” of LIMUSA. It transpired during oral argument, that no such resolution exists. This is important and fatal to the appellants’ case. I deal with this in detail below.

 

3.23    14 September 2021: The First appellant sends an e-mail to the Registrar seeking a response to “their” letter. The Department of Labour responds on the same day stating that the amalgamation is under due process.[24]

 

3.24    17 September 2021: The appellants send correspondence to entities as the “interim leadership” of LIMUSA (with LIMUSA members), advising inter alia, that the amalgamation with NUM is not finalised and LIMUSA remains an independent trade union; further, imploring the entities not to “divert” LIMUSA’s subscriptions to NUM or “any other bank account other than that of LIMUSA”.[25]  

 

3.25    28 September 2021: The appellants meet with Mr. Phillip Vilakazi, the NUM1 Deputy President. According to the appellants, he undertakes to discuss their concerns with NUM1’s NOBs and revert to the trio, but does not.[26]

 

3.26    11 October 2021: Letter by the second appellant addressed to “whom it may concern” on a letterhead recording that the appellants are “LIMUSA task team members”, advising that Messrs. Mdletshe, Madolo, Motloki, Dweba, Sikiti and Hlongwane have left LIMUSA and have taken up positions with the “rival trade union”, being NUM1, and requesting the addressee to no longer communicate with them with “immediate effect”.[27] The first appellant is recorded in this correspondence and in subsequent correspondence by the appellants as the Chairperson of KwaZulu-Natal. However, he is cited in the appellants’ founding affidavit in these proceedings as the KwaZulu-Natal Deputy Chairperson. No resolution is attached appointing him as chairperson.

 

3.27    27 October 2021: The appellants send correspondence to Mr. Madolo (on a letterhead recording that the trio are “LIMUSA task team members”), cautioning him about his conduct which, in their view, amounts to misrepresentation, in that he informed SANRAL to stop paying over employees’ union subscription fees over to LIMUSA, and he did so, using LIMUSA’s letterhead. They reserve their right to institute legal action against him in his personal capacity and/or against NUM.[28]

 

3.28    In an undated letter to SANRAL (on the same letterhead referred to above), the appellants inform SANRAL that the letter by Mr. Madolo to SANRAL of 12 October 2021 is fraudulent as he is employed by a “rival” union being NUM1 and reminding SANRAL of their previous correspondence that the amalgamation is not yet finalised and that SANRAL should continue paying union membership subscriptions over to LIMUSA.[29]

 

3.29    8 November 2021: The appellants send an email to the Registrar referring to their letter of 14 September  2021 regarding the amalgamation with NUM1 and enquiring about the process “because of the misbehaviour of some comrades that are already employed by NUM”.[30]

 

3.30    18 November 2021: A meeting with the Deputy Registrar of Labour Relations is held where the appellants inform the Registrar that “LIMUSA” does not approve of the amalgamation until issues between the two unions have been resolved.[31]

 

3.31    22 November 2021: The Registrar informs the Secretary of NUM (emailed to MMS Attorneys), inter alia, that the application for amalgamation received on 9 April 2021 has been approved with effect from 22 November 2021 and that the registration will be published in the Government Gazette.[32]

 

3.32    22 November 2021: NUM2 is registered as a trade union by the first respondent.[33]

 

3.33    22 November 2021: LIMUSA’s name is removed from the register of trade unions by the first respondent.[34] (The same holds true for the name of NUM1. This is common cause).

 

3.34    22 November 2021: The First, second and third appellants cease serving in their respective positions as “Deputy Chairperson” of LIMUSA in KwaZulu-Natal, National Treasurer of LIMUSA and First Vice President of LIMUSA.[35]

 

3.35    23 November 2021: The Registrar publishes a notice in Government Gazette No. 157 that NUM2 has been registered as a trade union with effect from 22 November 2021 under registration number L[...]; LIMUSA and NUM1 amalgamated to establish NUM2 under registration number L[...]; and the names of LUMISA (L[...]) and NUM1 (L[...]) had been removed from the register of trade unions.[36]

 

3.36    15 December 2021: Mbali Attorneys sends a letter to the Registrar asking for reasons for his decision to amalgamate LIMUSA and NUM1 in terms of section 111(1) of the LRA, and requests copies of the amalgamation application submitted by NUM on 9 April 2021.[37]

 

3.37    20 January 2022: The Registrar responds to the letter by Mbali Attorneys dated 15 December 2021 (in terms of section 111(2) of the LRA) and provides Mbali Attorneys with a copy of the submission recommending the approval of the amalgamation.[38] (The annexures to this submission appear on pages 124 to 165 of the Record. It is common cause that these are the documents that the Registrar took into consideration when he approved the amalgamation application).

 

3.38    11 March 2022: The appellants lodge this application in terms of section 111(3) of the LRA.[39]

 

Argument and analysis

[4]          It is common cause that LIMUSA sought to be amalgamated with NUM1. In September 2019, the Congress of South African Trade Unions (COSATU) resolved that LIMUSA and NUM1 should amalgamate to preserve the proliferation of trade unions in the same sector. It is also common cause that, subsequent to the aforesaid COSATU resolution, LIMUSA and NUM1 each took resolutions to amalgamate to form one union under NUM. The LIMUSA resolution was taken on 27 June 2020. The NUM1 resolution was taken during September 2020 and was given effect in a further resolution of 18 March 2021. In both the aforesaid resolutions, the two unions resolved that MMS Attorneys should take all necessary steps to give effect to the amalgamation. The denial by the appellants that MMS Attorneys was not their attorney of record in the amalgamation process is thus false, given the resolution of 27 June 2020, which the appellants do not deny and in fact, concede that it complies with Chapter 16, clause 1 of the LIMUSA constitution.[40]

 

[5]          Ms. Millard, on behalf of the appellants, states that this present appeal is premised on two grounds:

 

5.1         The first ground is that the amalgamation does not fully comply with the provisions of Chapter 16 of LIMUSA’s constitution, which read as follows:

 

‘CHAPTER 16

 

16. AMALGAMATION AND MERGER

 

If a National Congress resolves that the aims and objects of this constitution will be achieved by amalgamating or merging with another trade union or trade unions, amalgamation or merger should happen, provided that:

 

1)            two thirds of National Congress vote in favour;

 

2)            the terms and conditions negotiated with the other party/parties;

 

3)            the majority of the central committee agree with these terms; and

 

4)            members of a general meeting called for this purpose ratified the central committee’s decision.’[41]

 

5.2            Ms. Millard for the appellants, concedes that the resolution of 27 June 2020 complies with clause 1 of chapter 16. However, the provisions of clauses 2 to 4 of chapter 16, were not complied with. The appellants challenge the Registrar and the second respondent to produce the resolution of the general meeting that ratified the Central Committee’s decision to agree with the terms and conditions negotiated between LIMUSA and NUM1 in respect of the amalgamation.

 

5.3            The second ground is that the amalgamation is tainted with bad faith in that the previous General Secretary and Deputy General Secretary of LIMUSA (Messrs. Mdletshe and Madolo respectively) took up full-time employment with NUM1 in January and February 2021, and therefore, were no longer members of LIMUSA and were not authorised to act in a representative capacity for LIMUSA. Consequently, Mr. Mdletshe signed the amalgamation application in terms of section 102 of the LRA during August 2021, he was no longer representing LIMUSA, but, NUM1 and this is supported by his relinquishing his signing powers of LIMUSA’s bank account.[42] The appellants content in the same vein, that Mr. Madolo also relinquished his signing powers in respect of LIMUSA’s bank account.[43] The appellants allege that Mr. Mdletshe misrepresented to the Registrar, that he acted on behalf of LIMUSA in his involvement in the amalgamation process. This allegation is false, given the appellants’ concession that the resolution of 27 June 2020 complies with clause 1 of chapter 16 of LIMUSA’s constitution. The appellants allege that the amalgamation process was effectively a process by NUM1 alone and that LIMUSA was not represented.

 

[6]          The appellants allege that the Registrar was required in terms of the provisions of section 102 read with section 96 of the LRA, to satisfy himself that both constitutions of LIMUSA and NUM1 had been complied with before approving the amalgamation application. The appellants allege that they had informed the Registrar as well as the President of NUM1 (Mr. Vilakazi) that the amalgamation application was tainted with bad faith on account of LIMUSA not being represented and Mr. Mdletshe misrepresenting that he represented LIMUSA and on account of chapter 16 of the constitution of LIMUSA not being complied with.

 

[7]          It is common cause that in April 2021, an amalgamation application by MMS Attorneys on behalf of both LIMUSA and NUM1 was launched. The Registrar raised a number of concerns with the application and directed MMS Attorneys to the relevant provisions of the LRA in order that the application be compliant with the provisions of the Act.

 

[8]          Subsequently, in August 2021, MMS Attorneys, on behalf of LIMUSA and NUM1, submitted a joint amalgamation application to the Registrar.

 

[9]          The appellants allege that they were not aware that an amalgamation application had been submitted to the Registrar. They had a “suspicion” that such an application had been submitted. The appellants do not, in the founding affidavit, disclose what informed their “suspicion”. What the appellants plead in the founding affidavit is that a meeting of the Extended Central Committee was held, in which meeting, it was resolved that the three appellants be appointed as members of the “new task team”, to look into “irregularities” pertaining to the amalgamation application. Subsequently, the appellants sent correspondence to the Registrar and to the president of NUM 1, essentially, objecting to the amalgamation process and complaining about the conduct of Mdletshe. In an undated letter received by the Registrar on 26 August 2021, the appellants required that the Registrar suspend the amalgamation process until such time as the issues that the appellant had complained about had been resolved between the two unions. The Registrar raised this letter with MMS Attorneys, who in turn, informed the Registrar that the letter was anonymous. This letter was before the Registrar when he considered the amalgamation application. The Registrar took the view that the letter was discredited by the Resolution of 27 June 2020.

 

[10]       Satisfied that this application met the provisions of section 102 of the LRA, the Registrar approved the amalgamation application, where-after, the amalgamation was published on 23 November 2021.  

 

[11]       In keeping with the contention that it was not the Registrar’s duty to ensure compliance with the constitutions of both unions, having been satisfied that an amalgamation agreement was concluded and submitted to him, Ms. Rambachan-Naidoo on behalf of the Registrar, handed up the Labour Appeal Court (LAC) decision in Ninian & Lester (Pty) Ltd v Crouse NO and others,[44] (Ninian) to support the Registrar’s contention, as I understand it, that the Registrar is not required to concern himself with an objector’s objection insofar as it relates to the process of amalgamation of bargaining councils in terms of section 34, read with section 29 of the LRA.

 

[12]       In my view, Ninian is distinguishable insofar as the amalgamation processes of bargaining councils and trade unions are concerned. Section 34 read with section 29(3) of the LRA make provision for the publication of the amalgamation of bargaining councils for public comment, which includes a process of receiving objections from members of the public. The applicant for amalgamation may, in terms of section 29(6), respond to the objection. The application and objection(s) are sent to NEDLAC for consideration. As stated in Ninian, sections 34 and 29 of the LRA do not make provision for the Registrar to consider the objection and to provide the objector with feedback. For this reason, the objector is considered in Ninian, as a member of the public, who does not have locus standi to bring an application in terms of section 111(3) of the LRA.

 

[13]       No provision is made in section 102 of the LRA for a process to object to the amalgamation application of trade unions, and for the publication of any objections. Had it been the legislature’s intention that there is to be an objection process, it would have been provided for in section 102. 

 

[14]       That being said, Ninian is instructive as to who has locus standi to bring an application in terms of section 111(3) of the LRA. This determination is pivotal in this present case. For this reason, the parties were requested to address the Court on whether, in terms of Ninian, the appellants in this present case have locus standi to bring this application. I discuss this in detail below.

 

[15]       Mr. Ramarumo, on behalf of the second respondent (which he explained is NUM2), submits, and wisely so, that the second respondent no longer proceeds with its preliminary point challenging the initial notice of motion that was delivered by the appellants which did not set out the timeframe for the filing of answering affidavits.[45]

 

[16]       The second respondent challenges the authority of the first appellant to bring this application on the basis that he was not a national office bearer (NOB) of LIMUSA before the amalgamation and further, on the basis that, at the time this application was launched, LIMUSA ceased to exist. The second respondent contends that the constitution of LIMUSA did not provide for a structure termed the “Extended Central Committee”. In addition, the appellants could not, when asked by this Court, if a resolution of the Extended Central Committee existed that appointed them as “new task team members” or the “leadership of LIMUSA”, produce such a resolution. No such resolution exists. This was ultimately conceded by Ms. Millard on behalf of the appellants during the proceedings.

 

[17]       The second respondent asserts that the appellants are merely disgruntled former employees of LIMUSA.

 

[18]       Mr. Ramarumo further submitted that chapter 16 of LIMUSA’s constitution had not been complied with to the letter, on account of the amalgamation process wanting to move full steam ahead to absorb LIMUSA employees into NUM. The National Congress meeting of 27 June 2020 resolved that employees of LIMUSA should be integrated into NUM therefore, no structures existed within LIMUSA to hold a general meeting. The second and third appellants participated in the task team processes that oversaw the absorption of LIMUSA employees into NUM as early as January and February 2021 and they did not, at that stage, raise any dissatisfaction with the amalgamation process. Neither did they pursue any remedies that would have been available to them at the time, while LIMUSA was still in existence, to challenge the amalgamation process on the grounds they now pursue, some two years later. The implication of setting aside the amalgamation would mean two years’ work of transferring assets, taking over rights, obligations and liabilities, all, of which had the aim of putting LIMUSA on a better financial footing, would be undone.[46] The purpose of LIMUSA joining NUM was due to the financial challenges LUMISA faced, as contained in LIMUSA’s Special Central Committee Report.[47] The appellants fleetingly deny that this was the purpose of the amalgamation in their replying affidavit. 

 

[19]       The second respondent contends that in terms of the LIMUSA constitution, National Congress appointed national office bearers. National Congress sat every four years. The 27 June 2020 resolution resolved that the two unions amalgamate and that staff be absorbed into NUM during the transitional period while the amalgamation process was underway. The national task team that oversaw the amalgamation process and the transitional arrangements, directed that Mr. Mdletshe and Madolo continue to hold the positions of General Secretary and Deputy General Secretary General of LIMUSA until the amalgamation was finalised. This was because pursuant to the passing of the 27 June 2020 resolution, no National Congress would sit in four years’ time, given the resolution.

 

Legislative framework

 

[20]       It is pertinent to highlight the provisions of the relevant provisions of the LRA regarding the amalgamation of trade unions.

 

[21]       Section 102 of the LRA provides as follows:

 

‘102.   Amalgamation of trade unions or employers’ organisations –

 

(1)          Any registered –

 

(a)       trade union may resolve to amalgamate with one or more other trade unions, whether or not those other trade unions are registered; and

 

(b)       …

 

(2)       The amalgamating trade unions or amalgamating employers’ organisations may apply to the registrar for registration of the amalgamated trade union or amalgamated employers’ organisation, even if any of the amalgamating trade unions or amalgamating employers’ organisations is itself already registered, and the registrar must treat the application as an application in terms of section 96.

 

(3)       After the registrar has registered the amalgamated trade union or amalgamated employers’ organisation the registrar must cancel the registration of each of the amalgamating trade unions or amalgamating employers’ organisations by removing their names from the appropriate register.

 

(4)       The registration of an amalgamated trade union or an amalgamated employers’ organisation takes effect from the date that the registrar enters its name in the appropriate register.

 

(5)       When the registrar has registered an amalgamated trade union or amalgamated employers’ organisation –

 

(a)       all the assets, rights, obligations and liabilities of the amalgamating trade unions or the amalgamating employers’ organisations devolve upon and vest in the amalgamated trade union or amalgamated employers’ organisation; and

 

(b)       the amalgamated trade union or amalgamated employers’ organisation succeeds the amalgamating trade unions or the amalgamating employers’ organisations in respect of –

 

(i)            any right that the amalgamating trade union or the amalgamating employers’ organisations enjoyed;

 

(ii)          any fund established in terms of this Act or any other law;

 

(iii)         any arbitration award or court order;

 

(iv)         any collective agreement or other agreement;

 

(v)          membership of any council; and

 

(vi)         any written authorisation by a member for the periodic deduction of levies or subscriptions due to the amalgamating trade unions or amalgamating employers’ organisations.’

 

[22]       Section 96 of the LRA states:

 

‘96.      Registration of trade unions or employers’ organisations

 

(1)       Any trade union or employers’ organisation may apply for registration by submitting to the registrar –

 

(a)       a prescribed form that has been properly completed;

 

(b)       a copy of its constitution; and

 

(c)       any other information that may assist the registrar to determine whether or not the trade union or employers’ organisation meets the requirements for registration.

 

(2)       The registrar may require further information in support of the application.

 

(3)       The registrar –

 

(a)       must consider the application and any further information provided by the applicant; and

 

(b)       if satisfied that the applicant meets the requirements for registration, must register the applicant by entering the applicant’s name in the register of trade unions or the register of employers’ organisations.

 

(4)       If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar—

 

(a)       must send the applicant a written notice of the decision and the reasons for that decision; and

 

(b)       in that notice, must inform the applicant that it has 30 days from the date of the notice to meet those requirements.

 

(5)       If, within that 30-day period, the applicant meets the requirements for registration, the registrar must register the applicant by entering the applicant’s name in the appropriate register.

 

(6)       If, within that 30-day period, an applicant has attempted to meet the requirements for registration but the registrar concludes that the applicant has failed to do so, the registrar must—

 

(a)       refuse to register the applicant; and

 

(b)       notify the applicant in writing of that decision.

 

(7)       After registering the applicant, the registrar must –

 

(a)       issue a certificate of registration in the applicant’s name; and

 

(b)       send the certificate and a certified copy of the registered constitution to the applicant.’

 

[23]        Section 111 of the LRA provides as follows:

 

‘111.   Appeals from registrar’s decision –

 

(1)       Within 30 days of the written notice of a decision of the registrar, any person who is aggrieved by the decision may demand in writing that the registrar provide written reasons for the decision.

 

(2)       The registrar must give the applicant written reasons for the decision within 30 days of receiving a demand in terms of subsection (1).

 

(3)       Any person who is aggrieved by a decision of the registrar may appeal to the Labour Court against that decision, within 60 days of –

 

(a)       the date of the registrar’s decision; or

 

(b)       if written reasons for the decision are demanded, the date of those reasons.

 

(4)       The Labour Court, on good cause shown, may extend the period within which a person may note an appeal against a decision of the registrar.

 

(5)       An appeal in terms of this section against a decision by the registrar in terms of section 106 does not suspend the operation of the registrar’s decision.’

 

[24]       In Ninian, the LAC, referring to the majority decision in Francis George Hill Family Trust v South African Reserve Bank and others,[48] found that the definition of “any person who is aggrieved” by the decision on the Registrar as provided in section 111(1) of the LRA refers to any person who has a legal grievance, in other words, one whose rights are adversely affected by the decision of the Registrar.

 

[25]       In Ninian, the LAC per Zondo JP (as he then was), stated as follows[49]:

 

‘I think that it would not be inaccurate to say that the Appellate Division held that the cases tended to view that an aggrieved person is not someone who is simply disappointed at a certain decision but is a person who has a legal grievance. At 102C Hoexter JA, writing for the majority, said:

 

“Leaving aside the significance of statutory context in particular cases the tenor of decided cases in South Africa points, I think, to the general conclusion that the words “person aggrieved” signify someone whose legal rights have been infringed – a person harbouring a legal grievance. The current of judicial interpretation would appear to run in the same direction in the decisions of English courts - see the remarks of Donovan J in Eating Corporation v Jones…”’ (Emphasis added).

 

[26]       The LAC went on to state that this Court should be concerned with concrete and disputes and not disputes that are abstract or academic. The LAC stated as follows:[50]

 

‘In my view the starting-point in considering the contending submissions made by the parties on the meaning of the aforesaid phrase [“person who is aggrieved by the decision of the registrar”] in sec 111(3) of the Act is the principle that courts of law exist to deal with concrete disputes and not pronounce on abstract issues and advise on differing contentions. Counsel for the second and further respondents made a submission to this effect. In support thereof he referred to Geldenhuys and Neethling v Beethin 1918 AD 426 at 441 where the Appellate Division said:

 

“… Courts of law exist for the settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions, or to advise different contentions, however important”.

 

He submitted that that is the rationale for locus standi. In my view a statute must, as far as possible, be interpreted in a way that does not mean that courts must decide abstract or academic issues or give legal advice. An Act should not lightly be interpreted so as to allow persons who have no locus standi to bring to Court actions and applications for the courts to make decisions on abstract or academic issues. As far as possible a statute must be construed in a manner that allows persons who have genuine, real and concrete disputes to bring their disputes to the courts the courts to pronounce on such disputes. This has to be so because courts play a vital role in the maintenance of stability in society which they do by adjudicating and resolving disputes which exist among members of society, on the one hand and, on the other, those in authority including various spheres of government. If, therefore, the courts’ time to adjudicate and resolve such concrete and real disputes is going to be taken up by the Courts considering and making all kinds of pronouncements desired by various members of society on abstract or academic questions, this will have an adverse impact on those members of society who have real and concrete disputes and who want their disputes resolved. Those real and concrete disputes will be subjected to long delays before they receive the attention of the courts because the courts will be busy with abstract and academic issues or will be busy effectively giving legal advice through judgments to persons who have no concrete disputes to be adjudicated.’(Emphasis added).

 

[27]       The LAC went on to state as follows at paragraph [31] in consideration of one of the primary objects of the LRA that is, the promotion of effective resolution of labour disputes:

 

‘… The effective resolution of disputes entails an expeditious resolution of disputes. The Labour Court’s ability to play its role in providing an effective resolution of disputes in line with the relevant primary object of the Act would be seriously undermined if it began to entertain matters brought to it by persons and organizations who have no locus standi in the matters they brought to that Court. The same would apply to this Court with regard to subsequent appeals on those matters. I do not think that the legislature has made it clear in s 111 that it intends that the Labour Court should be burdened with appeals by persons who have no locus standi as that term is understood at common law or no legal and substantial interest or when such persons’ rights are not affected in any adverse way by the relevant decisions of the registrar. (Emphasis added).

 

[28]       And finally, the LAC stated thus:[51]

 

‘As counsel for the second and further respondents submitted, where a phrase has been given a certain meaning by the Courts and parliament uses such a phrase in a later Act, Parliament is presumed to have intended such phrase to bear the meaning that has previously been given to the phrase by the Courts. In this case, as the decision of the Appellate Division in the Francis George case reveals, the reference to an aggrieved person or a person who is aggrieved had been interpreted judicially in a number of cases before the passing of the [Labour Relations Act, 1995]. Accordingly, parliament must be taken to have intended the meaning that the Courts had previously given to the phrase to apply to the same phrase in s 111(3). That is that a ‘person who is aggrieved by a decision of the registrar’ in s 111(3) is a person who has a legal grievance or whose legal rights may be adversely affected by the decision against which they seek to appeal.’  

 

[29]       With the afore-going in mind, the LAC concluded that “the right to appeal is not based upon disappointment of a benefit which a party may have received if some other decision has been made”.[52]

 

Locus standi

[30]       I raised with Counsel for the parties during oral examination, the meaning of the words ‘aggrieved person’ as it appears on section 111(3) of the LRA, as meticulously articulated by the LAC in Ninian.

 

[31]       Mr. Ramarumo submitted that in terms of the decision in Ninian, the appellants lack locus standi as they have no legal grievance and no rights which are adversely affected by the decision of the Registrar. I agree.

 

[32]       Having informed this Court that no resolution exists appointing the appellants as “new members” of the task team (or as the “interim leadership” for that matter), Ms. Millard submitted that the absence of the resolution is irrelevant; and that what is relevant, is that the respondents are unable to produce a resolution by the general meeting ratifying the amalgamation. In the premises, she submitted that there had been non-compliance with Chapter 16 of LIMUSA’s constitution and the Registrar, having been notified of such non-compliance, did not satisfy itself as to the requirements of the Constitution of LIMUSA and for that reason, his decision should be set aside.

 

[33]       It is surprising that the appellants seek to hold the second respondent to the terms of the constitution of LIMUSA, while on the other hand, the appellants do not hold themselves to that same constitution. It is not disputed that the LIMUSA constitution did not provide for a structure such as an “Extended Central Committee”. The saying “what’s good for the goose is good for the gander” holds true: the appellants cannot seek to hold other members to the constitution and absolve themselves from its provisions.

 

[34]       What of the Registrar’s duty to satisfy himself of the provisions of LIMUSA’s constitution in view of the statutory provision that an amalgamation application must be considered in terms of the provisions of section 96 of the LRA? The appellants’ letter of objection states that LIMUSA had not held a National Congress to resolve to amalgamate it with NUM. This is a false allegation in view of the minute of 27 June 2020 and the resolution itself. The appellants admit the resolution is compliant, as stated above. In the circumstances and in my view, the Registrar was correct when he held the view that the appellants’ objection is obliterated by the 27 June 2020 resolution.

 

[35]       Ms. Millard submitted that the amalgamation agreement itself, states that the amalgamation would not take effect until the constitutions of the respective unions are complied with. The problem that arises for the appellants, is that they contend that no amalgamation agreement was entered into. Not only is this false, but they cannot, on the one hand, tell this Court that there was no amalgamation agreement, and on the other hand, rely on the agreement they dispute. Another saying holds true: the appellants “cannot have their cake and eat it.”

 

[36]       A further issue arises from the appellants’ concession that no resolution of the Extended Central Committee exists. It is this: the allegation in the founding affidavit that this resolution was taken, which establishes the trio as the “interim leadership” or “new task team” of LIMUSA, is false. In the circumstances, absent a valid resolution by a valid structure as provided in the constitution of LIMUSA, the trio have, in my view, no rights that are adversely affected by the decision of the Registrar; they have no legal grievance. In short, the appellants lack locus standi to bring this application.

 

[37]       It bears mentioning that the second and third appellants were members of the national task team that was established by the 27 June 2020 resolution to give effect to the amalgamation. They signed the attendance register of the National Congress meeting that bore the 27 June 2020 resolution. They formed part of the national task team’s decision to absorb Messrs. Mdletshe and Madolo into NUM in the amalgamation process. They did not, at that early stage or soon thereafter, when LIMUSA was still in existence, invoke legal remedies at their disposal, in the interest of LIMUSA, to challenge the amalgamation process on the basis that it was not in compliance with its constitution.

 

[38]       The essence of the correspondence sent by the appellants to entities that employed LIMUSA members is to inform them that LIMUSA is an independent union and that they should continue to deduct membership subscriptions from LIMUSA employees and pay them over to LIMUSA and not to NUM. In the case of the membership subscriptions of SANRAL, the trio are brazen to threaten Mr. Madolo with legal action. The tone of their correspondence points to the trio having appointed themselves as the new leadership of LIMUSA, without any due process in terms of the LIMUSA constitution. They show their dissent to the amalgamation process, which they claim not to know was underway, knowing full well, that it was, in view of the updates provided by Mr. Mdletshe.

 

[39]       Even if I am wrong that the appellants lack locus standi as they fall outside the definition of “aggrieved persons” in section 111(3) of the LRA, on the Plascon Evans principle[53], I find for the respondents. The appellants have in bringing these proceedings and in conducting themselves during these proceedings, submitted several falsehoods as I have pointed out above. The version by the appellants is not only misleading to this Court, but it is also dishonest. This then brings me to the question of costs. 

 

Costs

 

[40]       Ms. Ramachan-Naidoo submits that, on the reading of the appellant’s heads of argument, it is unclear whom they represent, as paragraph 32.3 of their heads of argument states that the appellants seek an order directing both the respondents to pay LIMUSA’s cost. On a reading of the appellants’ heads of argument, they submit that they are members and office bearers of LIMUSA. This begs the question, as to whom the appellants act on behalf of when they bring this application before this Court. It is common cause that when this application was launched, LIMUSA ceased to exist.

 

[41]       The Registrar seeks a costs order against the appellants on the basis that this application is frivolous.

 

[42]       The appellants, on the other hand, seek a costs order against the Registrar on the basis that, as it admits, it was not privy to the internal disputes between the two unions and within LIMUSA. Therefore, it is submitted by Ms. Millard on the appellants’ behalf, that the Registrar ought to have simply issued a notice that it would abide by the decision of this Court: there was no basis for the Registrar to oppose this application. I disagree: the first Registrar is well within its rights to oppose this application and to give reasons as to why its decision to amalgamate the two unions was correct on the basis of the information that was submitted to it in terms of the provisions of the LRA.

 

[43]       Section 162 of the LRA makes provision on the circumstances in terms of which this Court can issue an order for the payment of costs and provides as follows:

 

‘162.   Costs

 

(1)       The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness.

 

(2)       When deciding whether or not to order the payment of costs, the Labour Court may take into account –

 

(a)       whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and

 

(b)       the conduct of the parties –

 

(i)         in proceeding with or defending the matter before the Court; and

 

(ii)        during the proceedings before the Court.

 

(3)       The Labour Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court.’

 

[44]       The Constitutional Court[54] has stated that the general rule in this Court is that costs do not follow the result, unless there are circumstances that warrant an order for the payment of costs.

 

[45]       In view of the appellants’ concession that no resolution exists, the allegations in the founding affidavit as to the existence of this resolution are false. The submission on behalf of the appellants that such resolution is irrelevant, when tasked to produce it, is concerning.

 

[46]       In light of the aforesaid conduct of the appellants in prosecuting this application and their conduct in these proceedings as highlighted above,[55] to show this Court’s displeasure, I exercise my discretion to order the appellants to pay the costs of the respondents on a punitive scale.

 

[47]       This application, in my view, is frivolous. In bringing this application, the appellants’ have burdened this Court with an academic dispute of the kind cautioned against in Ninian, along with a voluminous record, when genuine disputes that require hearing and are waiting for a hearing date ought to have been heard instead of this unmeritorious application.

 

[48]       In the premises the following order is made:

 

Order

 

1.            The application is dismissed.

 

2.             The appellants are to pay the costs of the application on a scale as between attorney and client, jointly and severally, the one paying and the other to be absorbed.

 

M.T. M Phehane

Judge of The Labour Court Of South Africa

 

Appearances:

For the Appellants:	Adv. K Millard
Instructed by:	Mbali Attorneys
For the First Respondent:	Adv. Rambachan-Naidoo
Instructed by:	The State Attorney, Pretoria
For the Second Respondent:	Adv. Ramarumo
Instructed by:	MMS Attorneys.

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