Klemp v Mentz, NO and Others

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: Ramsbottom J
• Judgment Date: 04 January 1949
• Citation: 1949 (2) SA 443 (W)
• Hearing Date: 14 December 1948

Ramsbottom, J.:

In the year 1941, the Mine Workers' Union, which is a Trade Union, registered in terms of Act 36 of 1937, amended its constitution by the addition of the following clauses:

'135. No election of any shaft steward or any member to any office or to membership of the General Council or the Executive Committee or the Finance Committee shall be held until six months after the date of the termination of the war in term of sec. 1, Act 29 of 1940.

136. All persons holding office (including shaft stewards) on the date this constitution comes into force and/or members of the General Council, Executive Committee or the Finance Committee shall continue in such office and/or as members of such committees until new elections shall have been held as provided for in clause 135.

137. Should any vacancy occur in the position of shaft steward or in the General Council, the Executive Committee or the Finance Committee before the first election held after clauses 135 and 136 have ceased to operate the Executive Committee shall appoint a member eligible to hold the position to fill the vacancy.

138. The election of the General Council in March, 1941, and any appointment made in terms of the preceding clause shall be deemed to have been validly made and shall not be open to attack by any member of the union, until six months after the date of the termination of the war in terms of sec. 1 of Act 29 of 1940.'

These amendments were approved by the Industrial Registrar and have, until recently, been in force.

It is not necessary for me to refer to the troubles through which the Union has passed or to the abortive efforts which were made in the years 1946 and 1947 to procure the election of officers, General Council, and Committees - matters which were dealt with in de Beer v Mineworkers' Union and Others (1948 (4), S.A.L.R. 503). It is sufficient to say that up to July of this year no validly held elections had taken place since 1941, but that there was in existence a General Council consisting of persons who had been elected in March, 1941, and others who had been appointed to fill vacancies in accordance with the provisions of clause 137 of the constitution of the Union. It is common cause that the said General Council was the General Council of the Union, validly exercising its powers under the constitution.

Ramsbottom J

In July, 1948, as the result of negotiations between representatives of rival factions in the Union, the General Council, in the exercise of its powers under clause 129 of the constitution of the Union, amended the constitution by adding a new clause numbered 140. Paras. (1) and (2) of the new clause read:

'(1) Notwithstanding anything to the contrary in this constitution contained, the following provisions shall apply in connection with and consequent upon the elections provided for in this clause which elections shall when completed be deemed to have been the first elections after the termination of the war and described in clauses 134 to 137, and thereafter notwithstanding the provisions of the said clauses elections shall be held in terms of the provisions of the constitution, other than those contained in this clause, and clauses 134 to 137 shall have no further effect.

(2) The commission referred to in this clause shall be a commission consisting of a chairman and two members appointed by the Minister of Labour and these amendments shall be deemed to incorporate a request to the Minister to appoint such a commission. The Minister may at any time revoke any such appointments made in terms hereof and may appoint another person in the place of the person whose appointment has been so revoked or in place of any person who for any other reason has ceased to hold such appointment in terms hereof.'

Specific duties were assigned to the commission which include the following: -

(a) (i)

To supervise and control the elections which were to be held in terms of the new clause.

(ii)

To supervise the administration of the Union's affairs by the interim executive committee (for the appointment of which provision was made) and to take such action as it might deem necessary in order to protect the interest of the Union's members and to ensure a proper control over its funds until all the new members of the executive committee which was to be elected had assumed office.

(iii)

To compile a list of shafts which should be recognised as at August 31st, 1948, for the purpose of electing shaft stewards, and a list of branches of the Union as at August 31st, 1948.

(iv)

To compile for each such shaft and each such branch lists of members who, as at August 31st, 1948, should be entitled to vote at the elections of shaft stewards.

(b)

Until the completion of the elections, to exercise supervision over the performance of their duties by office bearers, officers, official and bodies holding office in terms of the constitution. For this purpose the commission was empowered

Ramsbottom J

to disallow any action by any such office bearer, officer, official or body which in its opinion was improper or unreasonable.

The clause then provided for the holding of elections, which were to be held on November 1st, 1948, and for the conduct of such elections, and for the appointment of an interim Executive Committee. This last provision was necessary because what remained of the old Executive Committee had been dissolved in 1946.

These amendments were approved by the Industrial Registrar, acting in accordance with sec. 10 (3) (b) of Act 36 of 1937, on July 21st, 1948. The Minister appointed the first, second and third respondents as members of the commission with the first respondent as chairman, and the commission entered upon its duties. Voters' lists were compiled, and the election of shaft stewards which was held on November 1st was conducted under the control and supervision of the members of the commission.

The applicant, who is a member of the Mineworkers' Union, and who was, until November 10th, 1948, chairman of the Near East Branch, has applied for an order declaring all the acts of the commission invalid, declaring that the elections of shaft stewards held on November 1st, 1948, were null and of no force and effect, restraining the respondents from convening meetings of the General Council and of the Executive Committee of the Union pending the decision of the application, and restraining the first three respondents from performing any further acts in connection with the affairs of the Union.

The applicant cited as respondents the three commissioners and the Mineworkers' Union. The fifth respondent who is a member of the Union and who was elected a shaft steward on November...