Amalgamated Society of Woodworkers of SA and Another v Die 1963 Ambagsaalvereniging

• Jurisdiction: South Africa
• Judge: De Vos J
• Judgment Date: 08 December 1966
• Citation: 1967 (1) SA 586 (T)
• Court: Transvaal Provincial Division

De Vos, J.:

First plaintiff is the Amalgamated Society of Woodworkers of South Africa, to which I shall refer hereinafter as the 'A.S.W.'. It is B a trade union registered as such in terms of the Industrial Conciliation Act, 28 of 1956. Second plaintiff is a common law universitas. This body corporate came into existence in Pretoria on 1st January, 1921, in terms of a constitution which laid down, in regard to its membership:

'Membership shall consist of the various trades unions referred to in schedule 'A', attached hereto, which may be added to from time to time C as provided in the next succeeding section provided always however that only the Pretoria Branch of any trades union will be eligible for membership.'

Schedule 'A' attached to the constitution contained the names of ten trade unions, including that of the first plaintiff, then called 'The Amalgamated Society of Carpenters and Joiners'.

D In regard to the manner in which the body was to be governed the following was stated:

'Each trades union (Pretoria Branch) which is a member of this Society shall, for every 100 members or part thereof, have the right to nominate to the Society. Such nomination shall take place by a vote of the majority of the said union and the delegate or delegates shall not be entitled to recognition unless his credentials from his particular branch have been properly drawn and approved.

E The government of the Society shall be in the hands of the delegates and the delegates shall amongst themselves elect an executive committee which shall consist of

1.

A president

2.

A vice-president

3.

Three trustees

4.

A secretary and treasurer.

Duties of Executive F

The president, the vice-president and the trustees shall be similar to that of directors as detailed in Table 'A' contained in the Fourth Schedule to the Companies Act of 1909.'

Explicit provision was made for the second plaintiff to hold property in its own name. In 1963 the second plaintiff had on its committee G delegates from the Pretoria Branches of only the following three trade unions, namely: The A.S.W. (first plaintiff), the Amalgamated Union of Building Trade Workers and the Transvaal Transport Workers Union. It had been functioning as an autonomous body for all practical purposes, its main purpose being to hold as owner and to administer a trades hall H building containing not merely the hall itself but also certain offices. In practice no curb was placed on the powers of the Pretoria Branches concerned in governing the second plaintiff through their delegates, of whom, at the crucial period over which the present dispute developed, there were two on the governing body for each trade union concerned.

From the minutes of a meeting of second plaintiff dated 21st August, 1963, it appears that a cheque for R58,500 was paid over to the second plaintiff as the price for which, for reasons which are irrelevant to the

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present issues, its fixed property had been sold. It there ore had liquid assets in the amount of R64,872 at its disposal, and the manner in which one-quarter of these assets, viz. R16,218, was ultimately disposed of is the burden of this story.

A The third party involved in the scheme and in the present case is the defendant, also a body corporate, in existence since 20th September, 1963. This party came to be the repository of the aforesaid R16,218, which the plaintiffs now claim.

The manner in which this came about can be concisely summarised, using, B for the time being and for the sake of convenience, as basis the version of witnesses for the defendant. To the extent that this version is in issue on aspects material to the conclusion arrived at, such disputed aspects will be dealt with in due course.

I pre ace this exposition with the observation, which is also common C cause, that the representatives of the Pretoria No. 1 Branch of first plaintiff, being the one and only Branch of this body which, at any time or stage, took an active interest in the affairs of second plaintiff, were bitterly averse to permitting the head office of their own trade union, the A.S.W., any participation in the financial fruits of the sale. When it, therefore, became clear to them that the continued co-operation of the three member unions within the second plaintiff was D drawing to a close and that substantial amounts would be available for distribution, if so desired, it became the frankly pro essed dominant aim of the representatives of the No. 1 Branch of the A.S.W. of the second plaintiff to put the money beyond the reach of the head office of the A.S.W., i.e. of the first plaintiff. It is only fair to add that E this seemed also to have been the attitude of the delegates of the Amalgamated Union of Building Trade Workers vis-à-vis their head office.

I revert to an exposition of the scheme. On 21st August, 1963, second plaintiff adopted a proposal earmarking the assets of the second plaintiff and consisting of the sum of R64,872 as to 50 per cent for the F Amalgamated Union of Building Trade Workers (Pretoria Branch), as to 25 per cent for the Transvaal Transport Workers Union and as to 25 per cent for the A.S.W. Pretoria No. 1 Branch.

Following on this a letter of resignation of the Transvaal Transport Workers Union was received at a meeting of 29th August, 1963, and it was G thereupon resolved to pay to the resigning member union its share of the available money, viz. R16,218, or a 25 per cent share. Simultaneously its resignation was accepted. Second plaintiff was, therefore, left with two member unions acting through their respective branches, viz. the first plaintiff and the Amalgamated Union of Building Trade Workers, as well as 75 per cent of the original sum.

H Meanwhile the A.S.W. No. 1 Branch, acting through its secretary, one Jooste, sought legal advice to devise a flawless procedure to safeguard 'its' 25 per cent share against the claims of the head office of the first plaintiff. Advice was obtained, and as a result a further meeting of the Pretoria Trades Hall Committee was held on 18th September, 1963. Despite the prior resignation of the Transvaal Transport Workers Union, this body was again represented. It appeared that Jooste, a prime mover in the whole scheme to safeguard the money of the A.S.W. No. 1 Branch, and not only secretary of this Branch as well as of the

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Pretoria Trades Hall Committee, but also secretary of the defendant, had written to the Transvaal Transport Workers Union requesting, on behalf of second plaintiff, the temporary return of the Transvaal Transport Workers Union to the Pretoria Trades Hall Committee for the specific A purpose of implementing the scheme as then conceived in the light of legal advice obtained. The Transvaal Transport Workers Union acceded to the request and, therefore, sent its delegates back to attend the meeting of 18th September.

The meeting noted the new position which had arisen and, as then constituted, with the Transvaal Transport Workers Union delegate back B within its ranks, the resolution of 21st August was rescinded and it was then resolved to keep the 75 per cent of the assets of the second plaintiff intact, instead of paying out a further amount to the A.S.W. No. 1 Branch. Jooste explained in evidence that this new resolution had been taken so as not to allow the A.S.W. No. 1 Branch to acquire a right C to the funds, as such an acquisition would in fact have amounted to an acquisition by the first plaintiff of the money so acquired. This was clearly according to legal advice received. According to him, it was then planned to transfer the money to a new body to be founded for the benefit of Pretoria workers. Later on that same day of 18th September, D 1963, a second meeting of the Pretoria Trades Hall Committee was held when the minute of the resolution earlier that day was confirmed and a letter of resignation of the Transvaal Transport Workers Union was again received and, for the last time, accepted. On 19th September, 1963, a further meeting was then held by the Pretoria Trades Hall Committee. The minutes reflect, firstly, that it was resolved that R16,218 be made E available to the defendant; secondly, the resignation of the A.S.W. No. 1 Branch from the second plaintiff by letter of that same date was noted.

On 20th September, 1963, the defendant was founded, the foundation members being the A.S.W. No. 1 Branch of Pretoria and the Blanke Bouwerkersvereniging. Second plaintiff's offer of R16,218 was F immediately accepted and on or about that date the amount was paid over to defendant. On 2nd October, 1963, the A.S.W. No. 1 Branch resigned from defendant, forfeiting, in terms of defendant's constitution, all rights to the property of defendant. This resignation was accepted. Subsequently, to complete the tale, Jooste and what may be termed the G governing majority of the members of the A.S.W. No. 1 Branch, Pretoria, resigned from that Branch and from the A.S.W. as such. The Branch nevertheless retained at least a few members who subsequently requested the executive of the A.S.W., i.e. the first plaintiff, to intervene on their behalf. Thence the present litigation.

H Plaintiffs now both claim that amount of R16,218 and attacked this scheme in a number of ways and on a basis of...