Matthews and Others v Young

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA and Kotzé JA
• Judgment Date: 29 August 1922
• Citation: 1922 AD 492
• Court: Appellate Division

De Villiers, J.A.:

The Amalgamated Engineering Union is a trade union registered and having its headquarters in the United Kingdom under the laws governing such combinations of work-men. It has an extensive membership also in South Africa and elsewhere. At the time of the circumstances detailed below the parties to this action were all members of this trade union, the defendants being the South African Council of the union. It is admitted that as such council the defendants were entrusted under

De Villiers, J.A.

the constitution of the union, with the general conduct of its business in the Union of South Africa. On the 25th November, 1920, the defendants purported to expel the plaintiff from the union and notified the fact of such expulsion to his employers, the Municipal Council of Johannesburg. The trouble arose through the fact that the plaintiff had drawn an increase of 10 per cent. offered by the municipality to certain of their employees while the question of its acceptance was still under consideration by the society. It is common cause that it was a condition of plaintiff's employment with the municipal council that he should be and continue a member of a trade union. In consequence of his expulsion from the union the plaintiff was at once given the usual 24 hours' notice and dismissed from his employment by the municipal council.

The action of the South African council in expelling the plaintiff from the union was challenged in the Witwatersrand Local Division by way of petition, and on the 22nd December, 1920, the Court reinstated him as a member of the union, with full rights and privileges. He has, however, not been re-employed by the municipal council. The gravamen of his complaint in the petition was that at no time was he called before the South African council of the union to answer any charge made against him. This mistake of the union was afterwards rectified, everything apparently took place en règle and on the 4th February, 1921, he was expelled from the union a second time.

The facts of the case may be briefly stated. The municipal employees at Johannesburg had asked for an increase of wages, and the municipality offered a 10 per cent. increase to certain only of its employees. On the 29th September, 1920, a notice was published in the Rand Daily Mail by order of the joint shop stewards ordering all municipal employees not to accept the proposed increase until it had been assented to by the joint shop stewards or by an aggregate meeting of employees. The plaintiff says he did not know of this notice, nor did he know that there was to be an aggregate meeting of employees on Sunday, 10th October, and that he did not know that a strike was threatened. The learned judge who heard the case, however, points out that Ritchie, a member of the plaintiff's branch of the union, says he discussed the matter with plaintiff and advised him not to take the 10 per cent., and then proceeds: - "I am satisfied that he knew that meetings were to be held to consider the question of

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acceptance or non-acceptance of the municipality's offer." It is in evidence that a notice of the shop stewards similar to the one which had appeared in the Press had been posted at the Power Station. The plaintiff admits he saw the notice but says he disregarded it because it was not signed. But the learned judge finds that he told Lewis, chief clerk at the Power Station, who called his attention to this notice, that he was working for the municipality and not for the shop stewards. It so happened that the plaintiff was granted his annual leave from Monday, the 11th October, till 31st October, but be was actually away from work from the previous Saturday evening, although he continued to live in Johannesburg throughout the period. An aggregate meeting of the municipal employees was held on Sunday, 10th, at which a resolution was passed endorsing the resolution of the shop stewards that the increase should not be accepted until the offer had been made to all the employees of the municipality. It was also decided that a further meeting should be held three, days later to decide whether drastic action should be taken, but before that date the municipality agreed to arbitration.

On Monday, the 11th October, the plaintiff took the balance of pay due to him including the 10 per cent. On his return on 1st November he met Geraghty and Hanson, two shop stewards, who asked him if he had accepted the 10 per cent. He said yes he had accepted everything due. They thereupon told him to lay off work and go home. This he refused to do, and told them that was the first he had heard of the resolution by a meeting of the municipal employees held on the 10th October against the acceptance of the 10 per cent. On the 13th November the plaintiff received a letter from the secretary of the union informing him that if he failed to comply with the ruling of the shop stewards committee he would be liable to expulsion from the society. After this the defendant Matthews, who is chairman of the South African Council, asked the plaintiff what he was going to do about the letter, to which plaintiff said he was in the employ of the council and not of the shop stewards, and was not prepared to reply to the letter as they had told him to go home. On the 15th November the plaintiff received a letter from the shop stewards' committee stating that he had acted in defiance of the shop stewards' committee and aggregate meeting of employees and that as a result he must immediately resign from the employ of the

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Council. The plaintiff continued as before. On the 26th November a meeting of the South African Council was held, at which it was resolved: "That owing to the recommendations from the central district committee re Bro. Young, we as a council, have no alternative but to uphold the shop stewards' resolution and exclude thus member for acting contrary to the interest of this society. That the following resolution be forwarded to Mr. Sankey, general manager, i.e., this is to inform you that A. E. Young, electrician, was excluded from the Amalgamated Engineering Union, as from even date, by order of the S.A council of this society." On the same day Matthews saw plaintiff again and asked him to resign his position with the council, and on his refusal handed him a letter in which the council brought the above resolution of the South African council of the 26th November to his notice, giving as authority for their action rule 21 (1).

Rule 21 (1), under which the defendants purported to act provides inter alia that any member of the society who, in the opinion of Ms branch, or the executive council, shall have acted contrary to the interests of the society, might be expelled by his branch with the approval of the executive council, or might be excluded by the executive council from the society. The same section of the rule goes on to provide: "It shall be necessary to give notice to any member of the intention to proceed against him under this rule and of the grounds or matters which the branch are proposing to consider." The rule does not say so in explicit terms, but there can be no doubt that the member so notified is entitled to be heard and should be afforded an opportunity of defending himself when the matter comes before the branch or the council for consideration. The plaintiff, it is true, knew the charge against him, and had no doubt showed himself defiant, and might have taken up the same attitude if he had been formally confronted with the charge. He himself says that he had been forced to join the union and was an unwilling member. But he was a member, and as such had...