Tramway and Omnibus Workers' Union (Cape) v Heading

• Jurisdiction: South Africa

Tramway and Omnibus Workers' Union (Cape) Appellant v Heading Respondent
1938 AD 47

1938 AD p47

Citation	1938 AD 47
Court	Appellate Division
Judge	Curlewis CJ, Stratford JA, Beyers JA and De Wet JA
Heard	October 12, 1937; October 13, 1937
Judgment	October 26, 1937

Flynote : Sleutelwoorde

Trade Union — Powers — Essential services — Strike — Whether ultra vires the Union — Liability of Union — Act 11 of 1924, section 15.

Headnote : Kopnota

A Trade Union composed of members engaged solely on essential services was incorporated under section 15 of Act 11 of 1924. Among the purposes set out in its constitution were (a) to protect and further the interests of members in relation to their employment; (b) to promote the interests of members; (c) to facilitate the settlement of disputes by constitutional methods, if possible; (d) to do such other things as may appear to be in the interest of members collectively during the course of members' employment.,

Held, that if the Union thought that a declaration of, or a participation in, a strike was a means of protecting or furthering the interests of members, then it had authority under its constitution to do such acts.

Held, further, that the legislature had not only not dealt with the power of such a Union to call a strike, but by penalising such a Union when in certain circumstances it did call a strike, it had recognised the existence of the power.

The decision of the Cape Provincial Division in Heading v Tramway Omnibus Workers' Union, confirmed.

Case Information

Appeal from a decision of the Cape Provincial Division

(WATERMEYER, J., and CENTLIVRES, J.).

The facts appear from the judgment of STRATFORD, J.A.

1938 AD p48

W. H. Mars, K.C. (with him M. Schaeffer), for the appellant: Appellant as a statutory body has only the powers given it by Act 11 of 1924, as amended and is prohibited from using any other powers. The doctrine of ultra vires in its true sense has no application to a natural person. See Halsbury's Laws of England (Hailsham ed., Vol. 5, p. 404, para. 669); Baroness Wenlock v River Dee Co. (36 Ch. 674 at p. 685, note): Amalgamated Society of Railway Servants v Osborne (1910, A.C. 87 at p. 94); Rex v Bonanza Greek Co. (1916, 1 A.C. 566, at pp. 577, 578, 582); Ashbury Railway Carriage & Iron Co. v Riche (L.R. 7, Eng and Ir. App. 653, at p. 693 and 33 L.T. 450 at p. 456); Halsbury's Laws of England (Hailsham ed., Vol. 8, p. 72, note (x); Palmer's Company Precedents (12th ed., Vol. I, Ch. VII, p. 569); Trevor v Whitworth (12 A.C. 409, at p. 436); In re Peveril Gold Mines Ltd. (1898, 1 Ch. 122 at p. 131); Welton v Saffery (1897, A.C. 299, at p. 330); Deuchar v Gas Light and Coke Co. (1925, A.C. 691) and Oram v Hutt (1914, 1 Ch. 98). These authorities show too that even an express provision in the Union's constitution which was not authorised by the Act would be void.

In essential services the Act not only does not concede the possible right to strike but it in effect prohibits and excludes the possibility of a strike or lock-out, as it imposes on the parties to a dispute settlement by arbitration and makes the award of an arbitrator binding on them. See sec. 11 (1), (2), (3).

Though sec. 12 (2) makes it a criminal offence for a trade union concerned in non-essential services to take part in a strike, sub-sec. (3), in dealing with essential services, omits all reference to trade unions and only refers to individuals because it is legally impossible for a union concerned with essential services to strike. See Rex v Givantoni and Others (1932 CPD 1).

Alternatively a statute may penalise an action which is in fact a nullity in law. See Harker v Britannic Assurance Co. Ltd. (1928, 1 K.B. 766, at p. 772); Connors v London and Provincial Assurance Co. (1913, 6 B.W.C.C.N. 146) cited in Halsbury's Laws of England (Hailsham ed., Vol. 15 p. 354 note (r) ).

Appellant cannot be held liable in respect of an act which is ultra vires which its officials have purported to do in its name as this is purely a question of agency. See Houldsworth v City of Glasgow Bank (5 A.C. 317, at p. 326). A corporation which has no power to do any particular act cannot have the power to give a legal.

1938 AD p49

or binding mandate to anyone else to perform such act. See Mill v Hawker (1874, L.R. 9, Exch. 309 at p. 317); Poulton v London & S.W. Railway Co. (1867, L.R. 2 Q.B. 534, at p. 540); Green v London General Omnibus Co.

(7 C.B.N.S. 290 at p. 302); Dunne v Durban Corporation (25 N.L.R. 33 at p. 37); Halsbury's Laws of England (Hailsham ed., Vol. 8, p. 105, para. 174; Vol. I, p, 287, para. 473; Vol. 5, p. 414, para. 684); Lindley on Companies (6th ed., Vol. 1, pp. 213, 257); Bowstead on Agency arts. 4, 31; Goodhart's Essays in Jurisprudence and Common Law pp. 91 if, 104, 105, 107; Salmond's Jurisprudence (7th ed., p. 345). I admit that a passage in Salmond on Torts (3rd ed., p. 57) based on Campbell v Paddington Corporation (1911, 1 K.B. 869) is opposed to the above view.

Para. 9 of the plea means that the suspension or cessation of work did not constitute a strike because the suspension or cessation was occasioned by a lawful summary termination of employment on the part of the employees concerned. See Rex v MacDonald and Others (1935 T.P.D. 153).

R. H. Gregorowski, K.C. (with him T. Reay) for the respondent: There may be no industrial council or conciliation board in existence when a dispute in regard to essential services arises. See secs. 2, 4, 5, 11 of the Act. In any event there is no provision in the Act making it compulsory to refer a dispute to an industrial council or a conciliation board.

The doctrine of ultra vires which applies to the contracts of a statutory corporation is not applicable to delicts. See McKerron on Delicts p. 71; Salmond on Torts (7th ed., p. 77, 9th ed., p. 59); Pollock on Torts (13th ed., p. 62); Street on Ultra Vires pp. 264, 265; Mersey Docks and Harbour Trustees v Gibbs (1866, L.R. I H.L. 93 at p. 126); Colonial Mutual Life Assurance Society Ltd v MacDonald (1931 AD 412 at p. 430). Where a delict has been expressly authorised by a statutory corporation, it would be no defence for the corporation to set up that the act was ultra vires its constitution or illegal in law. See authorities cited above and Doolan v Directors of Midland Railway Co. (2 A.C. 792, at p. 806); Union Government v Heiberg (1919 AD 477, at p. 483); Mill v Hawker (supra and 10 Ex. 92); Brownlow v Metropolitan Board of Works (1864, 16 C.B. N.S. 546); Mackenzie Kennedy v Air Council (1927, 2 K.B. 517); Harker v Britannic Assurance Co. (supra); Ormiston v Great Western Railway Co. (1917, 1 K.B. 598 at p.

1938 AD p50

STRATFORD, J.A.

602); Dunn v Durban...