Crisp v South African Council of the Amalgamated Engineering Union

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Wessels JA, Curlewis JA and Stratford JA
• Judgment Date: 20 November 1929
• Citation: 1930 AD 225
• Court: Appellate Division

Wessels, J.A.:

I do not propose to give a detailed statement of all the facts in this case as they are fully set out in the judgment of the JUDGE-PRESIDENT, and have been admirably summarised by BARRY, J in the Transvaal Provincial Division, and I propose to avail myself of that summary for the essential facts necessary for our decision. The present appeal is concerned with the question whether the respondents were entitled to declare that the appellant was ineligible for the office of organiser for South Africa, to refuse to declare that he was elected as such and to issue a circular to the branches of the Amalgamated Engineering Union calling for fresh nominations for the office of organiser. This question, however, is connected with other earlier disputes between the appellant and the South African Council of the Amalgamated Engineering Union. These disputes had reference to resolutions of the South African Council between 1921 and 1924 by which the appellant had been granted (1) money in lien of holiday leave, (2) a salary as secretary to the Council whilst receiving a salary as organiser, and (3) an increase to his salary of £428 per annum which he had at the date of amalgamation in 1920, (4) money for so-called late meetings. The validity of these money payments to appellant was challenged, and eventually the Executive Council of the Amalgamated Engineering Union the supreme governing and administrative body of that society having its seat in England, upon appeal gave its ruling that Crisp was not entitled to the extra salary paid to him as organiser, nor was he entitled to extra payment for deferred holiday leave, nor to the salary while acting as both secretary and organiser, nor to the fees for late meetings. The Executive Council ordered that these moneys must be refunded, and asked Crisp to make an offer as to how he would comply with the order. Appellant thereupon, in his letter of 29th August, 1924 requested the Executive Council to send the matter to the Society's appeal court together with his letter for their ruling thereon; at the same time

Wessels, J.A.

he offered to repay the amount claimed from him (over £200) at the rate of £4 per month. The Executive Council thereupon ordered him to pay £50 down, and the remainder at a larger amount per month than the £4 suggested by him. The South African Council conveyed this order to appellant, and fixed the repayment at £50 down and £5 per month. Appellant was informed that the Executive Council would forward his appeal to the final Appeal Court. On the 14th May the Executive Council instructed the South African Council to inform appellant that he must within one month give effect to their order or else they would proceed to expel him. Appellant had asked for the reasons of the Executive Council's decision as he was entitled to do by the rules, but these were not sent to him. Thus matters stood in March, 1926, and so they remained until 1928. Appellant was not expelled (the notice having been suspended), he did not comply with the order to refund moneys he had been overpaid, and he remained in office as the South African organiser. His term of office expired in August, 1928. In April, 1928, the South African Council called for nominations for the post of organiser. Appellant and six others were nominated. Appellant accepted nomination and sent in his election address. None of the others accepted nomination; appellant, therefore, was the only candidate. Rule 2 (1) of the Society's rules provides: "Should only one member accept nomination for any office he shall be declared duly elected."

In June, 1928, the Executive Council enquired from the South African Council whether appellant had refunded the moneys, and upon receiving a negative reply the Executive Council informed the South African Council that inasmuch as Crisp had not complied with their order to refund the moneys, he was ineligible for the position of organiser. During the same month the South African Council asked the Executive Council to repeal their ruling. This the Executive Council refused to do and informed the South African Council that they were - not to accept 'the appellant's nomination. Upon this order the South African Council acted and refused to declare appellant elected, and afterwards called for fresh nominations. Hence Crisp's application to the Witwatersrand Local Division for an order (a) to declare him duly elected as organiser for the period 4th August, 1928.

Wessels, J.A.

to 3rd August, 1931, (b) to restrain the South African Council from calling from nominations and electing another organiser, (c) costs. This petition was heard by the JUDGE PRESIDENT of the Transvaal Provincial Division at Johannesburg, and on 27th December, 1928, an order was given in terms of the prayer. From this order there was an appeal by the members of the South African Council to the Transvaal Provincial Division. The latter Court held that Crisp's proper course before resorting to the law courts was to exhaust his domestic remedies and appeal to the Society's final Court of Appeal. The appeal of the South African Council was therefore upheld and the judgment of the Witwatersrand Local Division altered to dismissal of the application...