Ntlokose v National union of Metal Workers of South Africa (NUMSA) and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: GN Moshoana J
• Judgment Date: 23 July 2022
• Court: Labour Court
• Hearing Date: 22 July 2022
• Docket Number: J885/22

Moshoana J:

Introduction:

[1]

A trade union is a continuous association of wage-earners for the purpose of maintaining or improving the conditions of their employment [2] . Thus trade unions do not exist for the leaders but for the workers. The more that social democracy develops, grows, and becomes stronger, the more the enlightened masses of workers will take their own destinies, the leadership of their own movement, the determination of its direction into their own hands [3] . The masses are in reality their own leaders, dialectically creating their own development process [4] . It is increasingly becoming evident that bunfights within trade union movements are gaining prominence and taking a centre

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stage. Lately, this Court has experienced an avalanche of trade union leadership tussles much to the chagrin of the workers on behalf of whom trade unions prevail. On 17 June 1948, the International Labour Organisation (ILO) adopted the Freedom of Association and Protection of the Right to Organise Convention No 87 of 1948. Article 2 of the Convention explicitly states that workers shall have the right to establish and subject only to the rules of the organisation concerned, to join an organisation of their own choosing. Article 3 provides that workers shall have the right to draw up constitution and rules, to elect their representatives in full freedom.

[2]

As a sequel of the above, section 23 (2) of the Constitution of the Republic of South Africa, 1996 explicitly provides that every worker has the right (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union. All the above bares testimony to the undeniable fact that a trade union prevails for the workers and not the leaders of the trade union. The bedrock of trade unionism is the enjoyment of full rights of freedom of association which ultimately metamorphose into worker control of their own movement.

[3]

That said, before me is an urgent application launched by a member of Numsa, Ruth Ntlokose (Ntlokose). What ignited the present application is the suspension of Ntlokose by one of the structures of Numsa, namely the Central Committee (CC) on or about 14 July 2022. Ntlokose contends that in suspending her and other union members there was non-compliance with the provisions of the constitution of Numsa. In a matter of days, from 25-29 July 2022, Numsa is to hold its national congress. Ntlokose harbours an intention to contest for positions in the up-coming congress. The application is duly opposed by Numsa and its General Secretary, Mr Irvin Jim (Jim). After hearing submissions from the parties, this Court reserved its judgment. What follows hereunder are the reasons and the order of this Court. Although parties have filed voluminous papers [5] , this application fulcrums on a rudimentary issue of compliance with the constitution of Numsa. Put

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differently, the matter oscillates on the lawfulness of the actions of Numsa through its constitutional structures. Ntlokose contends that Numsa has failed to comply with various provisions of the constitution. Numsa and Jim disputes any non-compliance with the constitution.

[4]

Section 157 (1) of the LRA affords the Labour Court exclusive jurisdiction to deal with all matters in terms of the LRA. Section 158 (1) (e) of the LRA provides that the Labour Court possess discretionary powers to determine a dispute between a registered trade union and any one of the members about non-compliance with the constitution of that trade union. The dispute raised by Ntlokose as "any one of the members" is about non-compliance with the constitution of Numsa. The jurisdictional powers of the Labour Court are not placed in dispute. What was fervently placed in dispute was the locus standi in iudicio of Ntlokose to act on behalf of the other members who equally allege non-compliance with the constitution. Additionally the need for an urgent relief in respect of those other members was oppugned.

[5]

Over and above dealing with the central non-compliance issue, this judgment shall address the issue of locus standi in iudicio as well as the urgency of the matter.

Background facts:

[6]

Owing to the limited basis upon which the current dispute oscillates, it is obsolete to give a detailed narration of the facts relevant to the dispute. There are a barrage of allegations and counter-allegations, hence the application ran into hundreds of pages. A full rendition of the facts will serve no laudable purpose but only to elongate this judgment. It suffices to mention that Ntlokose is the elected second Deputy President of Numsa. As indicated above on or about 14 July 2022, Jim communicated the decision of the CC to her, which decision was taken on 11-12 July 2022. The decision was to immediately suspend her membership pending a disciplinary hearing into her conduct regarding the South African Federation of Trade Unions (SAFTU)

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presidency. Allegedly, Ntlokose contested for a position contrary to the caucused position of Numsa to field and support another candidate [6] .

[7]

Prior to her suspension, Numsa had suspended about 25 of its members in various regions. Additionally, the CC had placed the Mpumalanga Regional Council (MRC) under "administration". The CC also adopted the credentials for the congress which is scheduled to commence on 25-29 July 2022.

[8]

As indicated earlier Ntlokose was discontented by the actions of Numsa and its structures to unconstitutionally (a) suspend other members; (b) suspend her; (c) place the biggest region, RMC under administration; and (d) adopting the credentials for the congress. She contended that the upcoming congress would be unconstitutional and it deserves an injunction. On or about 20 July 2022 some 30 members were identified as being not accredited and not permitted to attend the national congress because they are suspended. Those members encased Ntlokose and the 25 members identified in this application. On or about 18 July 2022, Ntlokose launched the present application seeking audience on an urgent basis for declaratory and interdictory reliefs. As outlined above, Numsa and Jim opposes the granting of the reliefs. The above sums up the pertinent facts of the current dispute.

Argument:

[9]

Both representatives provided this Court with efficacious and erudite heads of argument. This Court expresses gratification to such a benevolent gesture from both erudite counsel. Both counsel are applauded for that. Given the robust but inexorable engagements of counsel by the Court this matter was sufficiently ventilated in Court. In summary, the submissions of Mr Nhlapo, who ably appeared on behalf of Ntlokose are that the matter is urgent;

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Ntlokose has the necessary locus standi...