Dennis v Garment Workers' Union, Cape Peninsula

• Jurisdiction: South Africa
• Judgment Date: 02 September 1954
• Citation: 1955 (3) SA 232 (C)

Dennis v Garment Workers' Union, Cape Peninsula
1955 (3) SA 232 (C) [*]

1955 (3) SA p232

Citation	1955 (3) SA 232 (C)
Court	Cape Provincial Division
Judge	Diemont AJ
Heard	August 17, 1954; August 19, 1954
Judgment	September 2, 1954

Flynote : Sleutelwoorde G

Voluntary association — Domestic tribunal — Stay of sentence pending appeal — No right thereto unless such right expressly or impliedly provided for in constitution — Trade Union — Garment Workers' Union (Cape) — Constitution of — No stay of execution of sentence of executive pending appeal under sec. 12 (3) — H Practice — Applications and motions — Respondent dealing in his opposing affidavit with hearsay evidence in applicant's petition — Respondent's right to object not waived.

Headnote : Kopnota

However reasonable and equitable it may be that the decision of a domestic tribunal should not be given effect to pending an appeal, such a rule cannot

1955 (3) SA p233

be invoked unless provision is made therefor either expressly or impliedly in the constitution. If a term is to be implied it must be a necessary term - not merely a reasonable or equitable one. No term must necessarily be implied, in the constitution of the Garment Workers' Union of the Cape Peninsula, in favour of a stay of execution of any sentence passed by the executive committee. Once the executive has pronounced its sentence suspending a member that sentence stands unless A as the result of a successful appeal under section 12 (3) of the constitution the sentence is subsequently set aside.

In motion proceedings the respondent has no opportunity to object to hearsay evidence in the applicant's petition and affidavit until the matter comes to Court. He is therefore compelled to deal with the allegations made by the applicant in his opposing affidavits and by so doing he does not intend to waive his right to object to the offending B paragraphs in the applicant's petition and affidavit.

Case Information

Return day of a rule nisi. The facts appear from the reasons for judgment. At the hearing counsel for the respondent applied in limine to strike out certain paragraphs of applicant's supporting affidavit. The C application was opposed by counsel for applicant. After argument judgment was reserved on this point but argument proceeded on the merits.

D. B. Molteno, Q.C. (with him G. Friedman), for the applicant: There is a dispute in the present case entitling applicant to a declaratory order: Ex parte Ginsberg, 1936 T.P.D. 155; Williams v Benoni Town Council, 1949 (1) SA 501; Maitland Cattle Dealers (Pty.) Ltd. v. D Lyons, 1943 W.L.D. 1.

The relationship between the parties is governed by the contract between them and by the principles of the Common Law: Jockey Club of South Africa v Feldman, 1942 AD 340. On a proper construction of the constitution a decision of the executive committee to suspend or expel a E member does not become operative or final until that member has exhausted his remedies on appeal under sub-section 3. In any event it is a well-established rule of Common Law that the execution of a sentence is suspended pending the determination of an appeal: Reid and Another v Godart and Another, 1938 AD 511; Mpanza v Minister of Native Affairs F and Others, 1946 W.L.D. 225; Alexander v Jokl and Others, 1948 (3) SA 269; Levin v Felt & Tweeds, Ltd., 1951 (1) SA 213 at pp. 217, 218.

G. Gordon, Q.C. (with him H. J. Brodie), for the respondent: The Common Law rule that an appeal suspends execution applies only to judicial proceedings. The cases on this point, e.g. Mpanza v Minister of Native G Affairs, 1946 W.L.D. 225; Hollis v Chase and Others, 8 S.C. at p. 5; Levin v Felt & Tweeds, 1951 (1) SA 217; Olifants Tin 'B' Syndicate v de Jager, 1912 AD 481, all deal with judicial proceedings and the basic authorities, Voet and other Roman-Dutch writers, clearly deal with the rule only in this connection. The rule cannot be extended to apply to a domestic tribunal. Execution may be suspended in the latter case H only if the relevant statute or contract incorporates the rule expressly or by necessary implication: Abbott v Sullivan, 1952 1 A.E.R. at p. 230; Lee v Showman's Guild of Great Britain, 1952 1 A.E.R. at p. 1174; Kahn v Louw, 1951 (2) SA 211; Cape Indian Congress v Transvaal Indian Congress, 1948 (2) SA 595. There is no case directly in point, but useful analogies can be drawn to show that the proceedings

1955 (3) SA p234

of domestic tribunals are not 'judicial proceedings', and therefore the Common Law rule cannot apply to them: see Louvis and Others v Oiconomos and Others, 1917 T.P.D. 465; Tobacco Manufacturers Committee v Jacob Green & Sons, 1953 (3) SA 480; Long v Bishop of Cape Town, 4 S. 162 A at p. 176. Where the proceedings are not laid down in the statute or contract the sole test is natural justice: Crisp v SA Council of Amalgamated Engineering Union, 1930 AD 225; Feldman v Jockey Club of South Africa, 1942 AD 340.

The constitution of the Garment Workers' Union does not provide for the B automatic suspension of execution on the lodging of a notice of appeal. Nor can such rule be implied. In any event, although called such, this is not an appeal: it is a retrial. It is cardinal to an appeal that the same body cannot sit on appeal.

In any event, the court will not interfere with the internal workings of an association or company: Smith v Garment Workers' Union, 1936 CPD C 249; Buckley Companies Act, 12th ed., p. 168 (statement of the rule in Foss v Harbottle), particularly in an ex parte matter; Ex parte Petersen and Others, 1936 (1) P.H. M. 3.

Molteno, Q.C., in reply.

Cur adv vult.

Postea (September 2nd). D

Judgment

Diemont, A.J.:

The petitioner in this matter has been an employee in the clothing industry for some seventeen years and was a member of respondent trade union for a number of years prior to her suspension E therefrom on 30th July, 1954. The respondent Union is known as the Garment Workers' Union of the Cape Peninsula, and is registered as a trade union under the Industrial Conciliation Act, 36 of 1937.

On 2nd August, 1954, at 4.45 p.m. the petitioner approached this Court for an urgent interdict. She alleged in her petition that a trade union F with its headquarters in the Transvaal (referred to for convenience as the Transvaal Union) had been conducting a campaign for the establishment of a single national union for all the garment workers throughout South Africa. Petitioner stated that she had taken an active part in the campaign for a national union and that the executive committee of respondent Union were aware of her activities and were opposed to the formation of a national union. It appears that a special G general meeting was called by the respondent on 30th June, 1954, at the Woodstock Town Hall for the purpose of passing a resolution on the question of a national union. This meeting became unruly and broke up in disorder before it had been properly opened. Petitioner disclaims all responsibility for this but states that on 15th July, 1954, she was notified that she must appear before the executive committee on 26 July, H 1954, to answer a number of charges preferred against her. She appeared with witnesses at an enquiry into her conduct at the general meeting. She stated that she adduced evidence of her witnesses and herself refuting the allegations contained in the charge and explaining her conduct at the meeting and went on to make the following averments in the petition: -

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