South African National Defence Union v Minister of Defence and Others

• Judge: De Villiers J
• Judgment Date: 04 June 2004
• Citation: 2004 JDR 0274 (T)
• Docket Number: 23690/01
• Hearing Date: 11 September 2001
• Court: Transvaal Provincial Division

De Villiers J:

Introduction

1.1

The applicant ("SANDU") is a military trade union. The first three respondents ("the respondents") are the "collective employer" of the military members of the South African Defence Force. It is unnecessary to refer to the fourth respondent.

1.2

The applicant applies for an order declaring that the respondents' notice in terms of rule 7(1) is irregular as envisaged in rule 30(1) and for an order setting it aside.

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De Villiers J

1.3

The main issue is whether the present (fifth) constitution of SANDU has been validly adopted, alternatively whether any of the constitutions which preceded the present constitution are still valid.

1.4

If the present constitution is valid, a further issue is whether the deponent to applicant's founding affidavit, one Cornelius van Niekerk, has been authorised in terms thereof to act on its behalf. If a prior constitution is still valid, the issue is whether Van Niekerk has been authorised in terms thereof to act on applicant's behalf.

2.

The relevant facts are as follows:

2.1

In two main applications the applicant sought certain relief which turned on the issue whether there is in law a duty on the first three respondents (as the said "collective employer") to bargain collectively with the applicant.

2.2

VAN DER WESTHUIZEN J dismissed the main applications with costs. The applicant lodged an application for leave to appeal which was set down for hearing on 8 November 2002.

2.3

A day prior to the hearing of the application for leave to appeal the first three respondents ("the respondents") delivered a notice in terms of rule 7(1) disputing "the authority of the legal representatives, as well as the authority of one Cornelius van Niekerk to launch (the) application for leave to appeal on behalf of the applicant". Certain grounds for this contention are set out in the notice on the basis of which respondents dispute -

(a)

that Van Niekerk is or was duly and properly appointed as the national secretary of the applicant; and

(b)

that Van Niekerk purporting to act (in his alleged capacity as national secretary of the applicant) on behalf of the applicant, could duly and properly confer any authority on Jean Griesel Attorneys or any other legal representatives to act on behalf of applicant in the application for leave to appeal.

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De Villiers J

2.4

In reaction to the rule 7(1) notice, the applicant applied on notice of motion for an order declaring that respondents' notice in terms of rule 7(1) is irregular in terms of rule 30(1) and that it be set aside.

2.5

Van Niekerk is the deponent to applicant's founding affidavit in the application in terms of rule 30(1). In par 1.2 thereof he states that he is "duly authorised in terms of the provisions of clause 12.5.2 of the constitution of SANDU to lodge this application in terms of rule 30(1) ... against the first three respondents ... and to depose to this founding affidavit".

He annexes a copy of the relevant part of the applicant's constitution, as annexure "CVN1", containing the provisions of clause 12.5.2. (For the sake of convenience I shall refer to that constitution as "the fifth constitution".)

2.6

In the answering affidavit in the rule 30 application, the respondents aver, firstly that Van Niekerk was never validly and properly appointed as the national secretary of SANDU (par 3.9) and, secondly, (in par 3.10(h)) that the fifth constitution was never lawfully adopted as the constitution of SANDU. Further, that the provisions thereof (especially clause 12.5.2) cannot be a proper mandate for Van Niekerk. Thirdly, they submit (in par 3.11) that clause 12.5.2 is in any event not capable of an interpretation that it empowers the national secretary of SANDU carte blanche so that he can unilaterally embark upon litigation on behalf of SANDU or its members without any further or proper mandate or authorisation.

2.7

In applicant's replying affidavit, again deposed to by Van Niekerk, he avers that he was duly appointed as national secretary of the applicant with effect from 18 September 1994 and has been its national secretary since then (par 7). He avers that the fifth constitution was lawfully adopted as the constitution of SANDU and that its provisions are a proper mandate to him (paras 8.7 to 8.12).

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De Villiers J

2.8

Van Niekerk contends (in par 8.13) that, even if the fifth constitution is indeed invalid (which he denies) "the first, second and/or third constitution will then still be in place" and that clauses 5(b), 35, 40 and 43 of those constitutions empower him to litigate on behalf of the applicant. Furthermore, that the only remaining member of the original (Interim) National Executive Committee, Lt Col Hilton Smith ("Smith") has in any event mandated him to institute the main applications, the application for leave to appeal and the rule 30 application and has ratified everything he has done in this regard. In this regard Van Niekerk is supported by a confirmatory affidavit of Smith annexed to his affidavit (at 747-5).

2.9

A supplementary affidavit by the respondents' deponent was filed subsequent to the filing of applicant's replying affidavit. It answers a challenge to the authority of respondents' deponent which was raised by Van Niekerk in applicant's answering affidavit. However, nothing is raised in the said supplementary affidavit in reply to Van Niekerk's averments in par 8.13 of applicant's answering affidavit, referred to above.

2.10

If the respondents had wished to contest any factual averment in par 8.13 of the replying affidavit, on the basis that it was a new averment to which they wished to reply, they could, of course, have done so subject to leave being obtained from the court in that regard, but this did not happen.

3.

Mr Dunn SC, assisted by Mr Davis, appeared for the applicant. Mr Oosthuizen, who appeared for the respondents, indicated that he was not proceeding with the argument that Van Niekerk had not been duly and properly appointed as the national secretary of the applicant.

4.

It is convenient to commence with the issue relating to the validity of the constitutions of the applicant and to deal with the constitutions in the order in which they were allegedly adopted.

The relevant provisions of the various constitutions of SANDU.

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De Villiers J

5.1

Van Niekerk avers (in par 8.7.1 at 391) that he and the Interim National Executive Committee of the applicant drafted and adopted the first constitution (annexure GdP2 at 172 er seq). He states that he signed it in his capacity as national secretary on 22 September 1994.

5.2

The first constitution provides in clause 17 thereof (at 176): "Die Raad sal die hoogste liggaam van die Unie wees." In terms of clause 4(a) "Raad" means "die Nasionale Raad van die Suid-Afrikaanse Nasionale Weermag Unie bestaande uit die afgevaardigdes na 'n vergadering van die Raad". Clause 16 provides:

"Die Raad het die bevoegdheid om

...

(e) [d]ie grondwet van die Unie met 'n twee-derdemeerderheid stem te verander."

There is no other provision which creates or contemplates any other power of amending the first constitution.

5.3

The respondents' deponent avers that the Board "has never been in place" and contends that the first constitution could, therefore, not have been validly amended in terms of the first constitution itself (par 3.10 (b) at 152). Van Niekerk does not dispute the averment that the Board has never been in place (par 36 at 54-55) and that in the absence of a Board the second and third constitutions have never been accepted by the Board (par 38 at 437). However, he avers that prior to the amendments which resulted in the second and third constitutions,

"the proposed amendments were first communicated to the applicant's active members by post, during 1996. As no objections were received from any of the applicant's active members, the Interim National Executive Committee and I proceeded with the amendments and adopted these constitutions"

(par 8.7.2 at 392). Van Niekerk goes on to say that "SANDU obtained the consent of its members in this manner" (ibid. at 393).

5.4

It is to be noted that the second and third constitutions both contain the same provisions as the first constitution, namely that the Board is the highest body of SANDU (clause 17) and that it has the power to amend SANDU's constitution with a two thirds majority vote

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De Villiers J

(clause 19(e)). Van Niekerk avers that the second and third constitutions contain grammatical amendments and that the third constitution makes provision for the registration of the applicant as a trade union as contemplated by section 11 of the Public Service Labour Relations Act, 1994 (par 8.7.2 at 392).

5.4

The respondents point out that SANDU's fourth constitution (annexure GdP5 and dated 1 March 1998) proclaims expressly in its preamble and in clause 1.1.1 thereof that it is a "constitutional" amendment under clause 19(e) of the third constitution (par 3.10(e) at 153). Respondents aver that this

"cannot be true, because at no time was a democratically elected 'Raad' or congress in place to affect such an 'amendment' (which was in fact a complete repeal and substitution of the third constitution)"

(par 3.10(e) at 153). This is not denied in applicant's replying affidavit (par 39 at 438). Respondents' averment that the fourth constitution is invalid is, however, denied (ibid).

5.5

Van Niekerk avers (in par 8.7.3 at 393 et seq) that the amendments in the fourth constitution were brought about in order to comply with the provisions of the then newly promulgated Labour Relations Act, 66 of 1995, in order for the applicant to become re-registered under the provisions of the new Act. He says that during January 1998 the applicant forwarded a letter...