IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CCT 172/19 ...

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT 172/19

Labour Appeal Court Case No: DA8/2018

Labour Court Case No: D 722/2015 and D459/2016

In the matter between:

NATIONAL UNION OF METAL WORKERS

OF SOUTH AFRICA (KZN) Applicant

and

LUFIL PACKAGNG (ISITHEBE) First Respondent

(A division of Bidvest Paperplus ([ty) Ltd)

COMMISSION FOR CONCILIATION, MEDIATION Second Respondent

AND ARBITRATION

LEON PILLAY N.O Third Respondent

WRITTEN SUBMISSIONS OF THE APPLICANT (NUMSA)

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TABLE OF CONTENTS

INTRODUCTION……………………............................................................ 3

LITIGATION HISTORY……………………………………………………....... 4

Case No. D722/2015 – Labour Court ……………………….. 7

Case No. D459/2016 – Labour Court ……………………….. 8

Case No. DA8/2018 – Labour Appeal Court ………………... 10

COMMON CAUSE FACTS ………………………………………………....... 13

CONSTITUTIONAL INTERPRETATION ………………………………….... 14

INTERNATIONAL LAW ……………………………………………………….. 21

INTERPRETATION OF THE PHRASE “SUBJECT TO ITS

CONSTITUTION” ………………………………………………………………

23

CONTRACTUAL INTERPRETATION ……………………………………….. 28

VAN WYK & TAYLOR v DANDO & VAN WYK PRINT (PTY) LTD ………. 34

THE COLLATERAL CHALLENGE ANALOGY ……………………………... 35

LEAVE TO APPEAL …………………………………………………………… 38

COSTS ………………………………………………………………………….. 39

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INTRODUCTION

1. This appeal addresses NUMSA’s concerns over the rights to fair labour

practises and to the freedom of association and how the Labour

Relations Act 66 of 1995 (the “LRA”) as the statute that advances these

rights in the workplace is to be applied.

2. The applicant contends that the restrictive interpretation of section 4(1)(b)

by the Labour Appeal Court (LAC) unnecessarily infringes the rights to

fair labour practises and the right to freedom of association. It is

submitted that this section can, and so must, be interpreted so as not to

infringe upon these rights and accordingly should be interpreted as

required by both the Constitution and the LRA.

3. In section 23, the Constitution recognises the importance of ensuring fair

labour relations. The entrenchment of the right of workers to form and

join trade unions, as well as the right of trade unions, employers and

employer organisations to engage in collective bargaining, illustrates that

our Constitution contemplates that collective bargaining between

employers and workers is key in a fair industrial relations environment.

Section 23(2)(a) places no obvious limitation on the right to join a trade

union.

4. Section 18 of the Constitution recognises the right to freedom of

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association. The LRA itself also recognises this right in section 4.

5. The interpretation adopted by the LAC restricts the ability of the union

and its members to claim organisational rights. It is submitted that this

restriction results in a limitation of the union’s and its members’

constitutional right to fair labour relations and unnecessarily curtails the

right to freedom of association. As such the interpretation is in obvious

conflict with the Constitution, the purpose of the LRA and international

law.

6. The result of the LAC application of section 4(1)(b) is to remove the

union’s right to claim organisational rights for Lufil’s employees. But it

also declares as ultra vires and so as unlawful the relationship that 70%

of Lufil’s employees1 claim to be in with the union of choice.

LITIGATION HISTORY

7. In January 2015, NUMSA approached Lufil requesting that Lufil deduct

union fees for members who are employed by Lufil.2 Lufil refused the

request on the basis that its operations did not fall within the scope of

NUMSA, alleging that the union was not entitled to organise members

1 Record: Vol 1: Page 112, lines 8 – 20 and page 127, lines 19 – 23. 2 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 6 at paragraph 11 read with Annexure “PB1” at page 10.

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within Lufil’s workplace.3 NUMSA referred a dispute to the CCMA under

case number KNDB14987-14.

8. Lufil filed an application in terms of rule 31 of the CCMA rules, raising

what it termed a jurisdictional point, alleging that NUMSA did not have

the requisite locus standi to bring the dispute before the CCMA.4 NUMSA

filed an answering affidavit5 and Lufil replied thereto.6 The application

was decided on the papers and the third respondent delivered his ruling

on 19 June 2015 in which he found that NUMSA was entitled to claim

organisational rights from Lufil.7 The CCMA set the remainder of the

dispute down for hearing in terms of section 21(7) of the LRA.

9. Lufil launched proceedings to review the third respondent’s ruling in the

Labour Court, Durban under case number D722/15 on 31 July 2015.8 It

also sought to have the arbitration proceedings in the CCMA adjourned

pending the finalisation of the review under case number D722/15. This

application for adjournment was refused and the arbitration proceeded

3 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 6 at paragraph 12 read with Annexure “PB2” at pages 11 - 12. 4 Record: Vol 1: Notice of application and founding affidavit – jurisdictional point in Case No. KNDB14987-14 pages 1 - 16. 5 Record: Vol 1: Answering affidavit – jurisdictional point in Case No. KNDB14987-14 pages 20 - 37. 6 Record: Vol 1: Replying affidavit – jurisdictional point in Case No. KNDB14987-14 pages 38 - 44. 7 Record: Vol 2: Third Respondent’s Ruling – jurisdictional point in Case No. KNDB14987-14 pages 49 - 56. 8 Record: Vol 3: Review application – Case No: D722/15 pages 254 – 267.

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on 1 March 2016.9

10. The third respondent awarded NUMSA certain organisational rights on

14 March 2016.10 Lufil filed an application to review this award on 6 May

2016 under case number D459/16.11 The grounds of review are all but a

‘cut and paste’ of the first review and did not otherwise address the award

of organisational rights. In other words, the grounds of review of the

second award are the same as those advanced in the review of the

jurisdiction/ locus point. No factual defence was raised to NUMSA’s

competence or otherwise to organise in the affected industry.

11. Affidavits in review applications serve two primary purposes i.e. to define

the issues between the parties and to place the essential averments and

evidence before the parties and the Court. As a general principle in

reviews the applicant must make its case out in its founding affidavit and

the role of the reviewing Court is limited to deciding issues that are raised

in the founding affidavit.12 Essentially, therefore where the case for

review is not foreshadowed in the founding affidavit the application for

9 Record: Vol 2: Third respondent’s ruling - postponement in Case No. KNDB14987-14 pages 121 - 123. 10 Record: Vol 3: Third respondent’s ruling – organisational rights in Case No. KNDB14987-14 pages 246 - 253. 11 Record: Vol 4: Review application – Case No. D459/16 pages 282 - 296. 12 Cusa v Tao Ying Metal Industries & Others [2009] 1 BLLR 1 (CC) paragraph 67.

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review must fail.13

12. The applications under case number D722/15 and D459/16 were

consolidated and argued on 23 November 2017. Judgment was delivered

on 20 April 2018.14 The Labour Court dismissed the review and upheld

the third respondent’s findings.

13. The first respondent then sought and was granted leave to appeal to the

LAC under case number DA8/2018. The appeal was heard on 15 May

2019 and judgment was delivered on 13 June 2019.15 The LAC upheld

the appeal and set aside the CCMA’s arbitration award under case

number KNDB14987-14.

Case No. D722/2015 – Labour Court

14. The challenge by Lufil in the CCMA was raised as a “jurisdictional

point”.16 It is evident however that it was in fact a challenge to NUMSA’s

locus to represent Lufil’s employees in an application for organisational

rights. 17 Lufil contended that because the printing and packaging

13 Rustenburg Platinum Mines Limited v CCMA & Others [2004] 1 BLLR 34 (LAC) paragraph 15. 14 Record: Vol 5: Judgment of the Labour Court, Gush, J pages 396 - 405. 15 Record: Vol 5: Judgment of the Labour Appeal Court pages 444 – 459. 16 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 8 paragraph 18. 17 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 5 paragraph 7.

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industry was not included in annexure B of NUMSA’s constitution as part

of its scope, its employees were not eligible to become members of

NUMSA.18

15. The third respondent determined that this was not a jurisdictional issue19

and that NUMSA had locus standi to seek organisational rights from Lufil

in accordance with the provisions of the LRA.20

16. Lufil sought to review the third respondent’s ruling essentially on the

basis that that the third respondent had made an error of law and had

made a ruling that no reasonable decision-maker in his position could

have made.21

Case No: D459/2016 – Labour Court

17. Lufil applied to review the third respondent’s award of 14 March 2016 on

the grounds of the review against the “jurisdictional” ruling.22 Lufil did not

attack the union’s suitability to represent its employees, save on the

limited argument that the union’s constitution did not extend to the paper

18 Record: Vol 1: Founding affidavit in Case No. KNDB14987-14 page 7 paragraph 14. 19 Record: Vol 1: Third respondent’s ruling – jurisdictional point in Case No. KNDB14987-14 page 52 paragraph 31. 20 Record: Vol 1: Third respondent’s ruling – jurisdictional point in Case No. KNDB14987-14 page 56 paragraph 51. 21 Record: Vol 3: Founding affidavit in the review application under case no. D722/2015 page 264 -265 paragraph 23. 22 Record: Vol 4: Founding affidavit in the review application under case no. D459/2016 page 293 -295 paragraphs 28 - 31.

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and plastics industry. So other than to look to the scope in annexure B

Lufil did not attack the arbitration award on any other basis. At odds with

what was argued before the LAC, Lufil made common cause that its

employees were members of NUMSA – it did not attack that association.

18. At the review both parties identified the crisp issue to be determined as

“whether the LRA entitled the Third Respondent [NUMSA] to represent

its members in an application for organisational rights and whether it was

entitled to those rights”.23

19. The court held that the third respondent’s ruling in case number D772/15

was not reviewable and that being so the review of the award in D459/18

also failed.24

20. The rational for such finding was summarised in paragraphs 28 to 30 of

the judgement which reads as follows:

‘[28] As far as locus standi is concerned, the conditions precedent to a

union wishing to exercise organisational rights, in accordance with

the LRA, need only satisfy two conditions:

a. Firstly, the union must be registered (see section 11, 14, 16

18 and 21). It is common cause that the third respondent is

a registered union;

23 Record: Vol 5: Judgment of the Court a quo page 373 paragraph 6. 24 Record: Vol 5: Judgment of the Court a quo page 379 paragraph 31.

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b. Secondly, that the union must be sufficiently representative

(sections 11, 12, 13, 15, 16, 18 and 21. It appears from the

papers that the third respondent is sufficiently representative

of the applicant’s employees. (70% of the applicant’s

employees are members of the third respondent.)

[29] Had the legislature intended the scope of registration or the union’s

constitution to be determinative of the right to organisational rights,

it would have said so. The essence of the organisational rights

contained in part A of Chapter 3 are rights enjoyed essentially at the

instance of the employees as members of the union.

[30] In so far as this matter is an application to review and set aside the

ruling, the parties were ad idem that the outcome of that application

depends solely on whether the LRA precluded the third respondent

from representing its members in applying for organisational rights.

I am not persuaded that the provisions of the LRA do that. The LRA

sets out specifically what is required for a union to seek

organisational rights and it is beyond any doubt that the third

respondent has satisfied those requirements.’25

Case No. DA8/2018 – Labour Appeal Court

21. Lufil then noted an appeal against the whole of the judgment of the court

a quo.26

22. In its leave to appeal, Lufil stated the grounds upon which it intended to

25 Record: Vol 5: Judgment of the Court a quo page 379 paragraphs 28 - 30. 26 Record: Vol 5: Notice of appeal page 387 - 389.

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rely as follows:

‘1. That another court might reasonably reach a conclusion other than –

1.1 that the ruling of the Second Respondents in respect of which the

matter under CCMA case number D722/15 was brought was a

decision to which a reasonable decision-maker would have come

in the circumstances, and that the ruling of the Second

Respondent in respect of which the matter under case number

D459/16 was brought was a decision to which a reasonable

decision-maker could have come in the circumstances; and

1.2 more particularly, and without derogating from the generality of

the aforegoing, that another court might reasonably reach a

conclusion other than –

1.2.1 that the prevailing case law on the issue in question

supported the findings of the Second Respondent;

1.2.2 that third parties, such as the Applicant in this case, are

not able to challenge the locus standi of unions, such as

the Third Respondent in this case, to refer disputes on

behalf of individuals who are not entitled to be members

of that union, in terms of the union’s own Constitution;

1.2.3 that the First Respondent had jurisdiction to consider

the dispute referred by the Third Respondent; and

1.2.4 that there are only two conditions precedent to a union

in the position of the Third Respondent bringing such a

dispute (registration and sufficient representativity).’

23. In the Labour Appeal Court, Lufil challenged NUMSA’s entitlement to

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claim its employees as members. 27 It now sought to declare the

association of union and member ultra vires or unlawful.

24. The Labour Appeal Court held that:

‘The correct legal position, therefore, is that NUMSA had to show that it was

sufficiently representative. The employees on which it relied in alleging it

was sufficiently representative could not be and thus were not, in law

members of NUMSA, as they did not fall within the scope of the union in

terms of NUMSA’s constitution. As such, NUMSA was not sufficiently

representative of the employees at the workplace and therefore was not

entitled to any organisational rights. The commissioner erred in not coming

to that conclusion and committed a material error of law, which resulted in an

unreasonable decision. The Labour Court erred equally in not setting aside

the award on that basis.’28

25. It is against this decision that the Applicant seeks leave to appeal and

seeks an order upholding this appeal with costs.

26. In summary the Applicant’s grounds for leave to appeal are:

26.1. the LAC erred in interpreting section 4(1)(b) of the LRA in

isolation and without proper regard to the substantive rights

afforded through sections 18 and 23 of the Constitution;

27 Record: Vol 5: Judgment of the Labour Appeal Court page 448 - 449 paragraph 13. 28 Record: Vol 5: Judgment of the Labour Appeal Court page 457 paragraph 37.

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26.2. the LAC erred in holding that trade unions are precluded from

admitting as members, employees who are not employed in a

particular sector;

26.3. the LAC erred in relying on Van Wyk and Taylor v Dando and

Van Wyk Print (Pty) Ltd [1997] 7 BLLR 906 (LC);

26.4. the LAC erred in its analogous reasoning regarding collateral

challenges.29

COMMON CAUSE FACTS

27. The following facts are common cause, on the pleadings before the

Labour Court.

27.1. Chapter 2(2) of NUMSA’s constitution provides:

‘All workers who are or were working in the metal and related industries are

eligible for membership of the Union subject to the discretion of the relevant

Shop Stewards Council …’

27.2. Annexure B of NUMSA’s constitution deals with “the scope of the

Union” and provides that “the Union shall be open to all workers

29 Record: Vol 6: Founding affidavit in Application for Leave to Appeal to the Constitutional Court page 469 – 470 paragraph 15.

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employed in any of the following industries”. The annexure lists

21 different industries but does not include the packaging

industry.

27.3. NUMSA is a registered trade union.

27.4. NUMSA has as members a majority of Lufil’s employees.30

28. It is against that factual background that the interpretation of section

4(1)(b) becomes important.

CONSTITUTIONAL INTERPRETATION

29. Section 39(1) of the Constitution provides that:

'When interpreting the Bill of Rights, a court, tribunal or forum -

(a) must promote the values that underlie an open and democratic society

based on human dignity, equality and freedom;

30 The first respondent denies that this is common cause in its answering affidavit to the applicant’s application for leave to appeal to this Court. See Record: Vol 6: answering affidavit to the application for leave to appeal to the Constitutional Court page 512 paragraph 39. It avers that it has ‘purported members’. In its review applications under case numbers D722/15 and D459/16 it avers that ‘A number of Lufil’s employees are members of NUMSA’. See Record: Vol 3: Founding affidavit in application for review under case number D722/15 page 262 paragraph 12 and Record: Vol 4: Founding affidavit in application for review under case number D459/16 page 288 paragraph 13. See Also Vol 2: Page 127, Lines 19-24.

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(b) must consider international law; and

(c) may consider foreign law.'

30. Section 3 of the LRA declares that its provisions must be construed

purposively and in compliance with the Constitution and the public

international law obligations of the Republic. It reads:

‘Any person applying this Act must interpret its provisions —

(a) to give effect to its primary objects;

(b) in compliance with the Constitution; and

(c) in compliance with the public international law obligations of the

Republic.'

31. The primary objects of the LRA are listed in section 1 thereof. In part A

section 1 reads:

‘The purpose of this Act is to advance economic development, social justice,

labour peace and the democratisation of the workplace by fulfilling the

primary objects of this Act, which are —

(a) to give effect to and regulate the fundamental rights conferred by

section 23 of the Constitution of the Republic of South Africa, 1996;

(b) to give effect to obligations incurred by the Republic as a member state

of the International Labour Organisation;

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(c) to provide a framework within which employees and their trade unions,

employers and employers' organisations can —

(i) collectively bargain to determine wages, terms and conditions of

employment and other matters of mutual interest; and

(ii) formulate industrial policy; and

(d) to promote —

(i) orderly collective bargaining;

(ii) collective bargaining at sectoral level;

(iii) employee participation in decision-making in the workplace; and

(iv) the effective resolution of labour disputes.'

32. The LRA accordingly recognises the importance of fair labour practises

and the role that collective bargaining plays in achieving this

constitutional objective.

33. Section 4 is headed ‘Employees' right to freedom of association’ and

section(1)(b) reads:

‘Every employee has the right to join a trade union, subject to its constitution.’

34. Compliance with the Constitution includes the discharge of the obligation

imposed by s 39(2) which obliges, in mandatory terms, every court to

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promote the objects of the Bill of Rights when interpreting legislation.31

35. In Makate this Court stated the following in regard to section 39(2):

‘The objects of the Bill of Rights are promoted by, where the provision is

capable of more than one meaning, adopting a meaning that does not limit a

right in the Bill of Rights. If the provision is not only capable of a construction

that avoids limiting rights in the Bill of Rights but also bears a meaning that

promotes those rights, the court is obliged to prefer the latter meaning.' 32

36. The first step is to determine whether the legislative provision implicates

rights in the Bill of Rights. If it does, then the approach stipulated in

section 39(2) must be followed.

37. The hierarchy of the Constitution, as the supreme law, dictates that when

there are two conflicting but reasonable interpretations of a particular

provision in a statute then the Court should give effect to the

interpretation which best protects the values underlying the Constitution.

The court therefore must read the legislation in a way which gives effect

to the fundamental values of the Constitution.33

31 POPCRU v SACOSWU and Others 2019 (1) SA 73 (CC) paragraph 84. 32 Makate v Vodacom Ltd 2016 (4) SA 121 (CC) paragraph 89. 33 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC) paragraph 91. Investigating Directorate – Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd & Others 2001 (1) SA 545 (CC) paragraph 22.

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38. This court has stressed that any legislation must be viewed through the

prism of the Constitution. For it is the Constitution and not the legislation

that provides the principles and values and sets the standards to be

applied.34

39. Section 18 of the Constitution states:

‘Everyone has the right to freedom of association.’

40. Section 23 of the Constitution provides:

‘(1) Everyone has the right to fair labour practices.

(2) 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;

and

(c) to strike.

(3) Every employer has the right –

(a) to form and join an employers' organisation; and

(b) to participate in the activities and programmes of an employers'

organisation.

34 Du Toit v Minister of Transport 2006 (1) SA 297 (CC) [26]

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(4) Every trade union and every employers' organisation has the right –

(a) to determine its own administration, programmes and activities;

(b) to organise; and

(c) to form and join a federation.

(5) Every trade union, employers' organisation and employer has the right

to engage in collective bargaining. National legislation may be enacted

to regulate collective bargaining. To the extent that the legislation may

limit a right in this chapter, the limitation must comply with s 36(1).

(6) National legislation may recognise union security arrangements

contained in collective agreements. To the extent that the legislation

may limit a right in this chapter, the limitation must comply with s 36(1).'

41. Section 4(1)(b) of the LRA is designed to give effect to sections 18 and

23 of the Bill of Rights.

42. As stated by this Court in POPCRU:

‘[87] The right to engage in collective bargaining lies at the heart of industrial

relations. This right is conferred on trade unions and employers. This is the

only right which may be exercised simultaneously by protagonists in a labour

dispute. This is so because the bargaining takes place between the trade

union and the employer. Participation of each side in the collective

bargaining constitutes the exercise of the right. Absent the right, the objects

of the LRA such as labour peace, social justice and the advancement of

economic development may not be achieved.

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[88] Notably, on the workers' side, the right is conferred on a trade union.

This makes membership of a trade union the gateway to collective

bargaining for workers. Therefore, the right of every worker to form and join

a trade union is critically linked to the right to engage in collective bargaining.

[89] The right to form and join a trade union guarantees freedom of

association for workers. Its importance is acknowledged not only in the

Constitution but also in international law….”35

43. In construing section 4(1)b) of the LRA a meaning that limits the rights

encapsulated in sections 18 and 23 of the Constitution must be

eschewed. If the section is reasonably capable of a meaning that

promotes the rights concerned, it must be preferred above other

meanings. Section 23 of the Constitution informs section 4(1)(b) of the

LRA, not the other way.

44. This Court has stated the following in SATAWU:

‘(C)onstitutional rights conferred without express limitation should not be cut

down by reading implicit limitations into them, and when legislative provisions

limit or intrude upon those rights they should be interpreted in a manner least

restrictive of the right, if the text is reasonably capable of bearing that

meaning.’36

45. Sections 18 and 23 of the Constitution are rights stated without express

35 POPCRU note 31 above paragraphs 84 to 89. 36 SATAWU and Others v Moloto and Another NNO 2012 (6) SA 249 (CC) paragraph 44.

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limitation. Accordingly, section 4(1)(b) of the LRA requires an

interpretation that is least restrictive of those rights if the text is

reasonably capable of bearing that meaning.

INTERNATIONAL LAW

46. This Court has already recognised that in interpreting section 23 of the

Constitution an important source of international law will be the

conventions and recommendations of the ILO.37

47. The Freedom of Association and Protection of the Right to Organise

Convention, 1948 (No 87) and the Right to Organise and Collective

Bargaining Convention, 1949 (No 98) are relevant. South Africa is a

member of the ILO and has ratified both these conventions.

48. With regard to international law on freedom of association at the

workplace, this court observed in Bader Bop:

‘An important principle of freedom of association is enshrined in art 2 of the

Convention on Freedom of Association and Protection of the Right to

Organise which states:

"Workers and employers, without distinction whatsoever, shall have

the right to establish and, subject only to the rules of the organisation

37 South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) at paragraph 25.

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concerned, to join organisations of their own choosing without previous

authorisation.

Both committees have considered this provision to capture an important

aspect of freedom of association in that it affords workers and employers an

option to choose the particular organisation they wish to join. Although both

committees have accepted that this does not mean that trade union pluralism

is mandatory, they have held that a majoritarian system will not be

incompatible with freedom of association, as long as minority unions are

allowed to exist, to organise members, to represent members in relation to

individual grievances and to seek to challenge majority unions from time to

time.’38

49. This Court in Bader Bop stated further:

‘Of importance to this case in the ILO jurisprudence described is firstly the

principle that freedom of association is ordinarily interpreted to afford unions

the right to recruit members and to represent those members at least in

individual workplace grievances; and, secondly, the principle that unions

should have the right to strike to enforce collective bargaining demands. The

first principle is closely related to the principle of freedom of association

entrenched in s 18 of our Constitution, which is given specific content in the

right to form and join a trade union entrenched in s 23(2)(a), and the right of

trade unions to organise in s 23(4)(b). These rights will be impaired where

workers are not permitted to have their union represent them in workplace

disciplinary and grievance matters, but are required to be represented by a

rival union that they have chosen not to join.’39

38 National Union of Metal Workers of South Africa and Others v Bader Bop (Pty) Ltd and another 2003 (3) SA 513 (CC) at paragraph 31. 39 Bader Bop note 38 above at paragraph 34.

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INTERPRETATION OF THE PHRASE “SUBJECT TO ITS CONSTITUTION”

50. What then is the meaning to be given to the phrase “subject to its

constitution” in section 4(1)(b).

51. Lufil contends that the proviso in Section 4 limits the unions to which an

employee may apply.40 Accordingly, it argues that it is open to the

employer to object to membership of a particular union where the union’s

scope does not cover that particular area of employment.41

52. Such an interpretation limits the right to freedom of association and the

right of every worker to form and join a trade union, both of which are

unrestricted rights.

53. It is further submitted that the argument is at odds with a rational

common-sense interpretation of section 4 which would give effect to the

rights enshrined in sections 18 and 23 of the Constitution.

54. It is submitted that the correct interpretation of section 4(1) (b) is that it

regulates the relationship between the union and its member. In that

context then the member may join if he/she satisfies the applicable rules

40 Record: Vol 5: Judgment of the Labour Appeal Court page 448 - 449 paragraphs 13 – 15. 41 Record: Vol 5: Judgment of the Labour Appeal Court page 449 - 450 paragraph 16.

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of the union. This is the common-sense meaning of the affected proviso

to the LRA, “subject to its constitution”.

55. The proviso to the LRA section 4(1)(b) simply confirms that the freedom

of association includes the right to exclude those who are not prepared

to conform to the group’s requirements. It includes the right to require

those who join an association to conform to its principles and its rules.42

56. This allows the union (not the employer) to restrict members at its behest

or for that matter to exclude a particular member if the member does not

observe the rules of the union. It does not lie for the employer to raise

an objection. The relationship is between union and member and it is a

contractual relationship. As such the parties to the contract may choose

to ignore a provision or may treat a so-called rule as prescriptive not

proscribed.43

57. In the National Industrial Court of Nigeria in the matter of Nesoil Plc v

National Union of Petroleum and Natural Gas Workers44 the Court states

[with reference to the ILO]:

‘From these statements of principles, we hold that the claimant has no locus

42 Wittmann v Deutscher Schulverein Pretoria & Others 1999 (1) BCLR 92 (T) paragraph 117. 43 Aussenkehr Farms (Pty) Ltd v Trio Transport CC 2002 (4) SA 483 (SCA) paragraph 25. 44 Suit No: NIC/LA/08/2010.

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standi, and so is a busy body, regarding the question whether the defendant

is the appropriate union to unionize its staff. The locus is with either the staff

themselves or some other rival union that lays claim to jurisdictional

mandate. The interest of the claimant regarding this question is passive and

does not entitle it to come to court. Only two categories of persons have the

locus to challenge the defendant in this regard. They are: a rival union

challenging the jurisdictional mandate of the defendant over the staff of the

claimant or the staff of the claimant indicating individually and in writing that

they are opting out and so check-off dues should no longer be deducted.’

58. Our courts have also considered the question of whether an employer

has a right to interfere with the relationship between the trade union and

its members.

59. In City of Johannesburg v SA Municipal Workers Union & Others45 the

Court found that an employer even with the best of intentions could not

gain locus standi to interfere in the internal workings of a trade union.

The Court held that an employer is not a party to the trade union

constitution that only regulates the relationship between the union, its

members, and officials.

60. It has likewise been held that the rights enshrined by the LRA and by the

Constitution should not be limited by reading in a provision that workers

may not strike in demand of organisational rights for a union that is

45 (2017) 38 ILJ 1342 (LC) paragraph 19.

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restricted in its scope by its own Constitution.46

61. Dealing specifically with the restriction in section 4(1)(b), Steenkamp J in

the Mabote47 decision stated the following:

‘[26] What, then, to make of the restriction in s 4(1)(b) of the LRA that an

employee may join a trade union 'subject to its constitution'?

[27] That restriction appears to me to regulate the relationship between the

trade union and its members inter se. It is for the trade union to decide

whether or not to accept an application for membership and whether or not

that member is covered by its constitution. It could not have been the

intention of the legislature unduly to restrict the right to representation by a

trade union to the extent that it is up to a third party — such as an employers'

organization — to deny a worker that right, based on the trade union's

constitution.’

62. That view was endorsed by the LAC in MacDonald’s Transport Upington

(Pty) Ltd v Association of Mineworkers & Construction Union & others48.

The Court held that a union constitution is no more than a contract

between an institution and its members. Its terms and compliance with

its terms, as in all contractual relationships, involves only the parties to

the union constitution. If the union and its members are satisfied it is not

open to the employer to challenge membership. In relation to the dictum

46 Bidvest Food Services (Pty) Ltd v National Union of Metalworkers of SA & Others (2015) 36 ILJ 1292 (LC) paragraph 23. 47 National Union of Metalworkers obo Mabote v CCMA & Others (2013) 34 ILJ 3296 (LC). This decision was confirmed on appeal in Kalahari Country Club v National Union of Mineworkers & another (2015) 36 ILJ 1210 (LAC) albeit on factual grounds and not on the grounds referred to herein. 48 (2016) 37 ILJ 2593 (LAC) paragraphs 41 - 44.

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in Mabote quoted above, Sutherland JA stated:

‘I concur wholly with the view that ‘it is not for an employer to interfere with

the internal decisions of a trade union as to whom to allow to become a

member’ and such dictum is equally applicable to the circumstances of this

case.’49

63. It seems clear that any sufficiently representative trade union and even

those that merely claim to be sufficiently representative may seek to

enforce the organisational rights they claim the LRA confers upon them

through an adjudication process (through mediation or arbitration).50

64. In the Bader Bop matter Ngcobo JA, agreeing with the majority was

moved to add:

‘[62] In my view, part A does not preclude an unrepresentative union from

obtaining organisational rights if this part is properly construed in light of

Section 23 of the Constitution, Section 4 of the LRA and the ILO conventions.

Neither does the LRA. On the contrary, part A and in particular Section 20

supports the conclusion that the intention of part A is not to deny

organisational rights to unrepresentative unions by expressly conferring such

rights on representative unions.’

65. In this case both the employees and the union accept their relationship

and they seek to bargain collectively with the employer. The employer

49 MacDonald Transport note 48 above paragraph 45. 50 Bader Bop note 38 above at paragraph 25. See also POPCRU note 31 above where this Court held that minority unions are entitled to engage in collective bargaining.

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cannot invoke their contract to avoid its obligations under the LRA.

66. The words “subject to its constitution” must be read to mean that the

union and its members are entitled to regulate their relationship. Thus, if

a union’s constitution disqualifies membership of certain employees, it is

entitled to deny such membership. It is not however bound to deny such

membership.

67. Lufil’s interpretation is at variance with the constitutional canon of

construction. It is also dissonant with international law and in conflict with

section 3 of the LRA which expressly demands that the provisions of the

Act be construed in compliance with the Constitution and public

international law. It is accordingly submitted that Lufil’s interpretation

must be rejected.

68. It bears mention that the effect of the LAC judgement is to end the Lufil

employees’ membership of the union. That ensues even though the

individual employees, whose particular human rights are directly

impinged, were not in person party to the proceedings.

CONTRACTUAL INTERPRETATION

69. Lufil submits that because the LRA leaves it to the trade union

themselves to prescribe qualifications for admission to membership in

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their constitutions, and because NUMSA’s constitution does not refer to

the paper and packaging industry, Lufil’s employees are not eligible for

membership of NUMSA.51

70. Chapter VI, Part A deals inter alia with the registration and regulation of

trade unions. The sections relevant to this application are sections 95(1)

and 95(5)(b) and (c). Section 95(1) provides:

‘Any trade union may apply to the registrar for registration if-

(a) it has adopted a name that meets the requirements of subsection (4);

(b) it has adopted a constitution that meets the requirements of

subsections (5) and (6);

(c) it has an address in the Republic; and

(d) it is independent.’

71. Sections 95(5)(b) and (c) provide that the constitution of any trade union

(or employer’s organisation) that intends to register as a trade union must

prescribe qualifications for, and admission to, membership and establish

the circumstances in which a member will no longer be entitled to the

benefits of membership.

51 Record: Vol 5: Judgment of the Labour Appeal Court page 450 paragraph 17. Record: Vol 6: Answering affidavit in Application for leave to appeal to the Constitutional Court pages 502 – 503 paragraphs 20 - 23.

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72. Chapter 2(2) of NUMSA’s constitution provides:

‘All workers who are or were working in the metal and related industries are

eligible for membership of the Union subject to the discretion of the relevant

Shop Stewards Council …’ 52

73. Annexure B of NUMSA’s constitution deals with “the scope of the Union”

and provides that “the Union shall be open to all workers employed in any

of the following industries”. The annexure lists 21 different industries but

does not include the packaging industry.53

74. The purpose of a trade union’s constitution is to regularise the

relationship between the union and its members. It is submitted that just

as the provisions of the LRA are to be interpreted so as to give effect to

the rights enshrined in the Bill of Rights, so too must a union’s

constitution. This is part of the unitary exercise of interpretation.

75. In Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport

(Edms) Bpk the Court stated the following in regard to the interpretation

of contracts:54

‘…Whilst the starting point remains the words of the document, which are the

only relevant medium through which the parties have expressed their

52 Record: Vol 5: NUMSA’s Constitution page 403. 53 Record: Vol 5: NUMSA’s Constitution pages 438 – 442. 54 2014 (2) SA 494 (SCA) paragraph 12.

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contractual intentions, the process of interpretation does not stop at a

perceived literal meaning of those words, but considers them in the light of

all relevant and admissible context, including the circumstances in which the

document came into being. The former distinction between permissible

background and surrounding circumstances, never very clear, has fallen

away. Interpretation is no longer a process that occurs in stages but is

'essentially one unitary exercise'. Accordingly it is no longer helpful to refer

to the earlier approach.’

76. There is nothing in the wording of NUMSA’s constitution to suggest that

only workers in the metal and related industries are eligible for

membership. The scope as set out in annexure B is likewise not

restrictive.

77. Chapter 2.2 would read “Only workers who are or were working in the

metal and related industries are eligible for membership of the Union

subject to the discretion of the relevant Shop Stewards Council…” if it

were to be given the restrictive interpretation contended for by Lufil.

Annexure B to NUMSA’s constitution would likewise have to read “the

Union shall be open only to all workers employed in any of the following

industries”.

78. There is accordingly nothing in the wording which limits members to the

industries referred to.

79. Moreover, the scope appears as an annexure to the Constitution. The

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scope may be amended by the central committee from time to time.55

There are no formal requirements for an amendment of the scope and

that in itself shows that the scope is far from immutable.

80. The Minister of Labour has issued guidelines in terms of section 95(8) of

the LRA that are to be applied by the Registrar of Labour Relations in

determining whether an applicant for registration is a genuine trade union

(or a genuine employer’s organisation).56 Paragraph 8 of the guidelines

under the heading ‘Qualification for membership of a trade union’ reads:

‘In terms of section 95(5)(b) of the LRA, the constitution of a trade union must

prescribe the qualifications for membership. There is no requirement in the

LRA that a trade union confine its membership to employees in a particular

sector or sectors of the economy or a particular geographical region.

However, the failure to place appropriate qualifications on membership may

indicate, together with other factors, that the trade union is not a genuine

trade union.’

81. It cannot be suggested that NUMSA is not a genuine trade union, but

what is informative is the acknowledgement that the LRA does not

require that a trade union confine its membership to employees in a

particular sector or sectors. This is not a requirement for the registration

of a trade union.

55 Record: Vol 5, page 416, paragraph 2(d)(xiv). 56 Government Gazette No. 42121, 19 December 2018.

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82. The International Labour Office has published a compilation of decisions

of the Committee on Freedom of Association.57 Chapter 6 deals with the

rights of organizations to draw up their constitutions and rules. Item 564

reads:

‘In the Committee’s opinion, the mere existence of legislation concerning

trade unions in itself does not constitute a violation of trade union rights, since

the State may legitimately take measures to ensure that the constitutions and

rules of trade unions are drawn up in accordance with the law. On the other

hand, any legislation adopted in this area should not undermine the rights of

workers as defined by the principles of freedom of association. Overly

detailed or restrictive legal provisions in this area may in practice hinder the

creation and development of trade union organizations.’58

83. In not requiring a closed list of the sectors which the union represents,

the legislation in regard to the registration of trade unions is in keeping

with what is stated above. NUMSA’s constitution itself must also be read

so as to uphold the principles of freedom of association and the right to

fair labour practices.

84. In the exercise of a unitary interpretation of NUMSA’s constitution it is

submitted that the right to freedom of association and fair labour

practices, is the most important informative tool as to the ambit of such

constitution. It is accordingly submitted that NUMSA’s constitution does

57 Freedom of Association: Compilation of decisions of the Committee on Freedom of Association; sixth edition, 2018. 58 The 2006 Digest, para 370 is referenced.

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not prohibit membership of workers not explicitly stated in the

constitution.

VAN WYK AND TAYLOR V DANDO AND VAN WYK PRINT (PTY) LTD

85. The LAC relied on Van Wyk and Taylor v Dando and Van Wyk Print (Pty)

Ltd59 as authority for the proposition that a union acts ultra vires its own

constitution when it allows membership of individuals who are not

permitted to be members of that union in terms of the union’s own

constitution and that when a union does so it is not immune to attack from

third parties.

86. The doctrine of stare decisis obliges the LAC in this matter to follow the

approach in MacDonald’s Transport60 and not that in Van Wyk.

87. Lufil avers that MacDonald’s Transport supports Lufil’s case. It relies on

paragraphs 35 and 42 of that judgment in support of this submission and

concludes:

‘The Court’s endorsement of the view that “it is not for the employer to

interfere with the internal decisions of a trade union as to whom to allow to

become a member” therefore has no application in the present type of case.

59 [1997] 7 BLLR 906 (LC). 60 MacDonald’s Transport note 48 above.

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The Court was not concerned with an ultra vires argument, as in the present

case.’61

88. This submission is simply incorrect. The court in MacDonald’s Transport

endorsed the view stated above in relation to Mabote’s case which dealt

specifically with the restriction in section 4(1)(b).62

89. In any event the Labour Courts have consistently held that it is not for an

employer to interfere with the relationship between a trade union and its

members.63

90. The facts in Van Wyk are entirely distinguishable as the members

concerned were accepted as members for an ulterior purpose - a

purpose contrary to section 3 of the LRA.

THE COLLATERAL CHALLENGE ANALOGY

91. The LAC held the following in regard to the collateral challenge analogy:

‘In applying to the CCMA to be granted organisational rights NUMSA sought

to invoke the coercive power of the State. The CCMA cannot impose upon

Lufil its coercive power, in granting NUMSA the organisational rights it seeks

61 Record: Volume 6: Answering affidavit in application for leave to appeal to the Constitutional Court pages 503. – 505 paragraphs 25 – 29. 62 MacDonald’s Transport note 48 above at paragraph 45. Mabote at note 47 above. 63 See City of Johannesburg note 45 above and Bidvest Food Services note 46 above.

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if the basis for seeking this rights (the employees’ purported membership) is

not legally valid (because the union acts ultra vires its own constitution in

allowing these employees to be its members.)64

92. It is accepted that a CCMA award is administrative action.65

93. The Court in Oudekraal66 stated the following:

‘[26] For those reasons it is clear, in our view, that the Administrator's

permission was unlawful and invalid at the outset. Whether he thereafter also

exceeded his powers in granting extensions for the lodgement of the general

plan thus takes the matter no further. But the question that arises is what

consequences follow from the conclusion that the Administrator acted

unlawfully. Is the permission that was granted by the Administrator simply to

be disregarded as if it had never existed? In other words, was the Cape

Metropolitan Council entitled to disregard the Administrator's approval and

all its consequences merely because it believed that they were invalid

provided that its belief was correct? In our view, it was not. Until the

Administrator's approval (and thus also the consequences of the approval)

is set aside by a court in proceedings for judicial review it exists in fact and it

has legal consequences that cannot simply be overlooked. The proper

functioning of a modern State would be considerably compromised if all

administrative acts could be given effect to or ignored depending upon the

view the subject takes of the validity of the act in question. No doubt it is for

this reason that our law has always recognised that even an unlawful

administrative act is capable of producing legally valid consequences for so

long as the unlawful act is not set aside.

…

[31] Thus the proper enquiry in each case - at least at first - is not whether

64 Record: Volume 5: Judgement of the Labour Appeal Court page 457 paragraph 36. 65 Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC) paragraph 110. 66 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA).

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the initial act was valid but rather whether its substantive validity was a

necessary precondition for the validity of consequent acts. If the validity of

consequent acts is dependent on no more than the factual existence of the

initial act then the consequent act will have legal effect for so long as the

initial act is not set aside by a competent court.

[32] But just as some consequences might be dependent for validity upon

the mere factual existence of the contested administrative act so there might

be consequences that will depend for their legal force upon the substantive

validity of the act in question. When construed against the background of

principles underlying the rule of law a statute will generally not be interpreted

to mean that a subject is compelled to perform or refrain from performing an

act in the absence of a lawful basis for that compulsion. It is in those cases -

where the subject is sought to be coerced by a public authority into

compliance with an unlawful administrative act - that the subject may be

entitled to ignore the unlawful act with impunity and justify his conduct by

raising what has come to be known as a 'defensive' or a 'collateral' challenge

to the validity of the administrative act. Such a challenge was allowed, for

example, in Boddington v British Transport Police, in which the defendant

was charged with smoking a cigarette in a railway carriage in contravention

of a prohibitory notice posted in the carriage pursuant to a byelaw. The

House of Lords held that the defendant was entitled to seek to raise the

defence that the decision to post the notice (which activated the prohibition

in the byelaw) was invalid because the validity of the decision was essential

to the existence of the offence….’

94. In an attempt at analogous reasoning it is submitted that the following is

the correct approach.

94.1. The third respondent’s ruling and award stand until they are set

aside on review which is precisely what Lufil had done.

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94.2. It is not open to Lufil to simply ignore the ruling and award but in

the event that it were to do so and it did not comply with the award

and NUMSA then decided to compel it to comply with the award,

then Lufil could raise a ‘collateral challenge’ stating that the

award given was unlawful.

95. In any event it is difficult to fathom why the acceptance by NUMSA of the

Lufil employees as members would constitute an administrative act. That

is precisely what Lufil regards as unlawful.

96. In the context of CCMA hearings and the binding effect of a

Commissioner’s award the Lufil analogy is untenable.

LEAVE TO APPEAL

97. In terms of section 167(3)(b) of the Constitution, this Court has jurisdiction

to decide constitutional matters and issues connected with constitutional

matters.

98. This application concerns the interpretation of provisions of the LRA. The

applicant submits that the interpretation adopted by the LAC constitutes

an infringement of its right to fair labour relations and its right to freedom

of association and also infringes its members’ rights to fair labour

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relations and freedom of association as fully canvassed above. This

court’s jurisdiction is thus engaged.

99. The interpretation adopted by the LAC restricts the ability of the union

and its members to claim organisational rights. It is submitted that this

restriction results in a limitation of the union’s and its members’

constitutional right to fair labour relations and unnecessarily curtails the

right to freedom of association. The LAC interpretation, if it stands, will

affect all trade unions and their members who are similarly situated.

Several cases are pending before the Labour Court dealing with the

same or similar issues. The importance of the issue thus extends beyond

the interests of those directly involved in it.

100. It is accordingly submitted that in light of the constitutional issues at stake

and its importance in the greater scheme of things, it is in the interests of

justice that leave to appeal be granted.67

COSTS

101. The general rule for an award of costs in constitutional litigation between

a private party and the State is that if the private party is successful, it

67 Myathaza v Johannesburg Metro Bus Services (SOC) Ltd and others 2018 (1) SA 38 (CC) paragraph 17. SACCAWU & Others v Woolworths (Pty) Ltd 2019 (3) SA 362 (CC) paragraph 20.

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should have its costs paid by the State, and if unsuccessful, each party

should pay its own costs68 is not applicable in this case.

102. It is submitted that Lufil’s stance in this ligation indicates a desire to avoid

the collective bargaining provisions of the LRA. This it is not entitled to

do.

103. Whilst the parties had initially adopted the principles of Zungu69 in the

Labour Court NUMSA was entitled to claim the costs of opposing the LAC

appeal. Having failed in the Labour Court it is uncertain why Lufil claimed

the costs of the appeal or why the LAC deviated from Zungu.

104. It is accordingly submitted that the Applicant is entitled to costs in this

appeal including the costs of the application for leave to appeal both

including that of two Counsel.

105. The order in the LAC should be set aside. The appeal therein ought to

have been dismissed with Lufil to pay the applicant’s costs.

68 Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) paragraph 43. 69 Zungu v Premier of the Provinces of KwaZulu-Natal & Others (2018) 39 ILJ 523 (CC). 69 Zungu v Premier of the Provinces of KwaZulu-Natal & Others (2018) 39 ILJ 523 (CC).

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INDHRASEN PILLAY SC

CHAMBERS

DURBAN

24 October 2019

☏ 031-305 1771

LISA K OLSEN

CHAMBERS

DURBAN

24 October 2019

☏ 031-305 1774

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT Case No: CCT172/19

LAC Case No: DAB/2018

Labour Court Case No: D722/2015 & D459/2016

In the matter between:

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA (KZN) Applicant

and

LUFIL PACKAGING (ISITHEBE)

[A DIVISION OF BIDVEST PAPERPLUS (PTY) LTD] First Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION Second Respondent

LEON PILLAY N.O. Third Respondent

FIRST RESPONDENT’S WRITTEN SUBMISSIONS

I INTRODUCTION ................................................................................................ 1

II FACTS AND LITIGATION HISTORY ............................................................ 3

III THE COMMON LAW AND THE LRA ........................................................... 6

COMMON LAW .............................................................................................................. 6

THE LRA ...................................................................................................................... 8

Registration .............................................................................................................. 9

Organisational Rights ............................................................................................ 12

NUMSA’s Interpretation of s 4(1)(b) ..................................................................... 13

The Collateral Challenge Analogy ......................................................................... 16

IV NUMSA MEMBERSHIP .................................................................................. 18

V CASE LAW ......................................................................................................... 21

SUPPORTING CASE LAW .............................................................................................. 21

CASES ABOUT INDIVIDUAL RIGHTS ............................................................................. 25

CONCLUSION ............................................................................................................... 29

VI THE CONSTITUTION SUPPORTS LUFIL .................................................. 30

THE ROLE OF S 39(2) .................................................................................................. 31

THE RIGHT TO JOIN A TRADE UNION .......................................................................... 34

THE RIGHT TO FREEDOM OF ASSOCIATION ................................................................. 36

ANY LIMITATION IS JUSTIFIABLE ................................................................................ 40

VII INTERNATIONAL AND COMPARATIVE LAW ....................................... 41

INTERNATIONAL LAW .......................................................................................... 42

COMPARATIVE LAW ............................................................................................. 46

VIII CONCLUSION ................................................................................................. 49

1

I INTRODUCTION

1. If a union wants to obtain organisational rights in a workplace from an

employer, it has two options. It can convince the employer through dialogue or

industrial action to grant it those rights. Or, if it is “sufficiently representative”1

of the employees in that workplace, it can pursue a claim for organisational

rights under Part A of Chapter III of the Labour Relations Act 66 of 1995

(LRA).

2. The question in this case is simple. If a union follows the second path, can it

claim as members employees who are not entitled, under the union’s own

constitution, to join that union? Put differently, when a union claims

organisational rights against an employer under the LRA, is the employer

precluded from resisting the claim on the basis that its employees cannot

lawfully be members of the union?

3. The Applicant (NUMSA) says the answer to both questions is Yes. It argues

that unions are free to disregard their constitutions and to admit as members

whomsoever they please, regardless of any provisions in their constitutions

governing eligibility for membership. Admission to membership, it contends, is

a purely internal issue. Even if the union admits as a member an employee not

eligible under its constitution to be admitted, the employer has no right to

question the validity of such membership.

1 LRA s 11.

2

4. The First Respondent (Lufil) says the answer to the questions is No. It argues

that, when a union asserts a claim before the CCMA for organisational rights

under the LRA, it seeks to enlist the coercive power of the state. To do so it

must establish that it is “sufficiently representative” of the employees in the

workplace; and to do this, it needs to show that the employees in the workplace

that it claims as its members have validly been admitted as members. This will

not be the case where the union’s constitution precludes the employees from

being admitted as members.

5. Lufil’s answer does not limit the constitutional rights of unions or of employees.

NUMSA remains free to amend its constitution, expand its scope, and enable it

lawfully to admit Lufil’s employees. And Lufil’s employees are free to join any

union whose constitution does not preclude them from becoming a member.

6. In truth, holding unions to their constitutions, particularly when it comes to

expanding the scope of the union, promotes – rather than limits – their

associational rights. When a union purports to admit members contrary to its

founding document, it limits the rights of all its existing members to associate

on the terms they agreed: the union’s constitution.

7. These heads of argument are structured as follows:

7.1. Part II briefly summarises the relevant facts and litigation history;

7.2. Part III sets out how union membership is regulated under the common

law and the LRA;

7.3. Part IV demonstrates that Lufil’s employees fall outside the scope of

3

NUMSA’s constitution;

7.4. Part V addresses the relevant case law and shows why NUMSA’s

argument is unpersuasive;

7.5. Part VI establishes that the Constitution support’s the LAC’s

interpretation; and

7.6. Part VII deals with international and compartive law.

II FACTS AND LITIGATION HISTORY

8. Lufil operates in the paper and packaging industry.2

9. In 2015, NUMSA requested organisational rights from Lufil, claiming that 70%

of Lufil’s employees were its members.3

10. Lufil demurred. It pointed out that, in terms of NUMSA’s constitution, it could

not admit as members employees working in the paper and packaging industry.4

While NUMSA can, under its constitution, admit employees in a wide range of

industries, from industrial chemicals to the IT industry, it has consciously

chosen in its constitution not to extend its scope to paper and packaging.5

11. NUMSA referred to the Commission for Conciliation, Mediation and

Arbitration (CCMA) a claim for organisational rights under the LRA.6 Lufil

objected, on the basis that NUMSA was not entitled to organisational rights in a

2 Founding Affidavit at para 8: Record Vol 1, p 5.

3 Founding Affidavit at para 11: Record Vol 1, p 6. The letter appears as PB1: Record Vol 1, p 10.

4 Founding Affidavit at para 12: Record Vol 1, p 6. The letter appears as PB2: Record Vol 1, p 11.

5 See Part IV below.

6 Founding Affidavit in Review of Ruling at para 17: Record Vol 3, p 263.

4

workplace that fell outside its permitted constitutional scope. It also asserted

that its employees were not eligible to be members of NUMSA and that in

admitting them NUMSA had acted ultra vires its own constitution.7

12. In June 2015, the Third Respondent (the Arbitrator) sided with NUMSA on

the preliminary point.8 Lufil approached the Labour Court to review the

Arbitrator’s preliminary ruling (Review of Ruling).9

13. In March 2016, on the basis of the original ruling, the Arbitrator granted

NUMSA organisational rights in terms of ss 12 to 16 of the LRA.10

Lufil took

that decision on review in the Labour Court as well (Review of Award).11

14. The two reviews were consolidated before the Labour Court. The Labour Court,

on 20 April 2018, upheld the Arbitrator’s rulings.12

Its reasoning can be

captured in this statement: “Had the legislature intended the scope of

registration or the union’s constitution to be determinative of the right to

organisational rights, it would have said so.”13

It also held that the rights at

issue were rights of the employees, not rights of the union.14

7 Record Vol 1 pp 7-8, FA para’s 12.6, 14, 16u and 17.1. This was denied in NUMSA’s answering affidavit – Record vol

1pp 23-24, AA para’s 6.8 and 8.4. 8 Ruling on Preliminary Issue: Record Vol 2, p 49. The Arbitrator held (correctly, with respect – at para 33) that the

employer’s point was not jurisdictional, but nonetheless raised a “preliminary” issue, which should be decided in the

interests of expeditious dispute resolution. His ruling was that “NUMSA is entitled to claim organizational rights from

the Employer Party”. This was understood by all concerned (including the Arbitrator himself, as his subsequent award

demonstrates) as disposing of the argument that NUMSA could not rely on members admitted by it in breach of its

constitution to establish that it was “sufficiently representative”. 9 Notice of Motion: Record Vol 3, p 254.

10 Arbitration Ruling: Record Vol 3, p 246.

11 Notice of Motion: Record Vol 4, p 282.

12 Labour Court Judgment: Record Vol 5, p 371.

13 Labour Court Judgment at para 29: Record Vol 5, p 379.

14 Ibid.

5

15. Lufil appealed to the Labour Appeal Court.15

The LAC (Musi JA and Murphy

and Savage AJJA) upheld the appeal. It held that s 4(1)(b) of the LRA

necessarily implies that the right to join a trade union is “circumscribed by the

membership eligibility criteria in the trade union’s constitution”.16

Accordingly,

if a trade union purports to admit a member contrary to its constitution, “[s]uch

a decision is ultra vires and invalid and, as such, susceptible to challenge by the

employer from whom organisational rights – based on the membership

concerned – is sought.”17

It summarized its reasoning as follows:

“The correct legal position, therefore, is that NUMSA had to show that it was

sufficiently representative. The employees on which it relied in alleging it was

sufficiently representative could not be and thus were not, in law members of

NUMSA, as they did not fall within the scope of the union in terms of NUMSA’s

constitution. As such, NUMSA was not sufficiently representative of the employees at

the workplace and therefore was not entitled to any organisational rights.”18

It also held that:

“The requirement that eligibility to join a trade union be determined by the provisions

of its constitution, as adopted by its own decision-making body and registered by the

Registrar, gives effect to the legitimate government policy of orderly collective

bargaining at sectoral level. The means of implementation, involving supervision of

the scope of union activity by the Registrar, are minimally restrictive and are

carefully tailored to the purpose of achieving the policy. Section 4(1)(b) of the LRA is

accordingly consistent with the Constitution.”19

16. NUMSA now seeks leave to appeal to this Court.

15

Statement of Grounds for Appeal: Record Vol 5, p 381. 16

LAC Judgment at para 30: Record Vol 5, p 454. 17



LAC Judgment at para 32: Record Vol 5, p 455.

6

III THE COMMON LAW AND THE LRA

17. This Part sets out the regulation of union membership under common law and

under the LRA. It demonstrates that NUMSA’s approach is alien to our law.

COMMON LAW

18. The position under the common law is simple: an association only has the

powers granted to it by its founding document. As the Court put it in

Abrahamse:

“A corporation is commonly styled a ‘legal person’, but the appellation ‘person’ is

applicable to it only by analogy; and the analogy fails when it is thus clearly stated

that this legal person is wanting in much that belongs to a natural person — that its

course of existence is marked out from its birth; that it has been called into being for

certain special purposes; that it has all the powers and capacities, and only those,

which are expressly given it, or are absolutely requisite for the due carrying out of

those purposes; and that all the obligations it affects to assume which do not arise

from or out of the pursuit of such purposes, are null and void.”20

19. A union is, in law, a voluntary association. It exists, ultimately by virtue of a

contractual relationship, where “[t]he contract among its members and between

the members and the trade union is embodied in the constitution”.21

The

20

Abrahamse v Connock’s Pension Fund 1963 (2) SA 76 (W) at 79, quoting Street on the Doctrine of Ultra Vires 4,

quoted with approval in ABSA Bank Ltd v South African Commercial Catering and Allied Workers Union National

Provident Fund (Under Curatorship) 2012 (3) SA 585 (SCA) at para 31. 21

National Union of Metal Workers of South Africa and Others v Congress of South African Trade Unions and Others

[2014] ZAGPJHC 59 at para 34, citing Ex parte United Party Club 1930 WLD 277; Turner v Jockey Club of SA 1974 (3)

SA 633 (AD); Natal Rugby Union v Gould [1998] ZASCA 62; 1999 (1) SA 432 (SCA) at 440.

7

constitution of a union therefore “determines the nature and scope of the

union’s existence and activities, while also prescribing and demarcating the

powers of its various functionaries.”22

20. As a matter of common law, if a person is precluded by a union’s constitution

from becoming a member, the union – and anyone purporting to act on its

behalf – has no power to admit her as a member and she is incapable as a matter

of law of becoming one. Any purported admission of such employees as

members is ultra vires the union's constitution and invalid.23

21. This Court has endorsed that position in the context of one of the most

important forms of voluntary associations – political parties. In Ramakatsa,

Yacoob J wrote:

“I do not think that the Constitution could have contemplated political parties could

act unlawfully. On a broad purposive construction, I would hold that the right to

participate in the activities of a political party confers on every political party the

duty to act lawfully and in accordance with its own constitution. This means that our

Constitution gives every member of every political party the right to exact compliance

with the constitution of a political party by the leadership of that party.”24

22. This Court rightly recognized that adherence to an association’s constitution is a

necessary condition for the right to participate in that association. As we

22

NUMSA v COSATU (n 21) at para 37. 23

Van Wyk and Taylor v Dando and Van Wyk Print (Pty) Ltd (1997) 7 BLLR 906 (LC), particularly at 910 F-G; South

African Local Government Association v Independent Municipal Allied Workers Union and others [2014] 6 BLLR 569

(LAC), particularly at para's 30-32; Gründling v Beyers and others 1967(2) SA 131 (W), particularly at 139H - 140B,

1490-F and 151C; Sorenson v Execitive Committee, Teamway and Omnibus Workers Union (Cape) 1974 (2) SA 545 (C),

particularly at 551C-552F; E Fergus & S Godfrey ‘Organising and Bargaining Across Sectors in South Africa: Recent

developments and Potential Problems’ (2016) 37 ILJ 2211 at 2227; Lord Wedderburn The Worker and the Law (3rd

ed.)

(Sweet and Maxwell) 748-9; Martin v Scottish TGWU [1952] AU ER 691 (HL) (union has no capacity to admit in breach

of its constitution and decision to admit therefore null and void); and Yorkshire Miners Association v Howden (1905) AC

256 (HL). 24

Ramakatsa and Others v Magashule and Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC) at para 16.

8

explain in more detail in Part VI, the same must be true of unions.

THE LRA

23. The LRA reinforces and reflects the same approach.

24. Before referring to the provisions most directly in point, we point out that s 3(a)

of the LRA requires that any person applying the LRA must interpret its

provisions to give effect to its primary objects. In terms of s 1, its “primary

objects” include “to give effect to and regulate” the fundamental rights

conferred by the Constitution; “to provide a framework” within which

employees and their trade unions and employers’ organisations can collectively

bargain; and to promote “orderly collective bargaining” and “collective

bargaining at sectoral level”.

25. To advance these objects, amongst others, detailed provision is made in the

LRA regarding the registration of trade unions, employers’ organisations and

bargaining councils and for the conferral of certain organisational rights on a

trade union that is sufficiently representative.

26. Chapter II of the LRA is entitled “Freedom of Association and General

Protections”. Section 4 is its first provision. Section 4(1)(b) provides: “Every

employee has the right … to join a trade union, subject to its constitution.”

27. That means that an employee cannot demand to join a trade union if she is not

eligible for membership of the union concerned in terms of its constitution. But,

9

as we demonstrate, it also means that a union cannot assert organizational rights

against an employer under the LRA based on the purported admission of

employees ineligible for membership in terms of its constitution.

28. The relevant provisions that give the context to s 4(1)(b) concern registration of

trade unions, and the granting of organisational rights.

Registration

29. Sections 95 and 96 deal with the requirements for registration of a trade union.

In terms of s 96(1)(b), “[a]ny trade union … may apply for registration by

submitting to the registrar”, amongst other information, “a copy of its

constitution”.

30. The LRA clearly specifies what a trade union’s constitution “must” contain in

order to be registered. In terms of s 95(5)(b), the constitution must “prescribe

qualifications for, and admission to, membership”. Section 95(5) also requires

the constitution to deal, in detail, with loss of membership.25

31. If the Registrar is satisfied that the trade union meets the requirements for

registration – including having a constitution that prescribes qualifications for

membership – she must register the trade union.26

32. The LRA also provides a simple procedure for trade unions to register

amendments to their constitutions. Section 101(1) recognizes the right of trade

unions to amend or replace their constitutions. The trade union must “send the 25

LRA ss 95(5)(c) to (e). 26

LRA s 96(3).

10

registrar a copy of the resolution and a certificate signed by its secretary

stating that the resolution complies with its constitution.”27

The Registrar

checks that the amendment “meets the requirements for registration”.28

She is

then obliged to register the amendment and send the trade union a certificate.

The amendment takes effect from the date of the certificate.29

33. Registration under the LRA has been said to impose “a measure of

accountability”30

on a trade union. As Landman put it, registration “permits the

state and employers to know with whom they are dealing, to have access to the

constitution of the trade union as a public document, to contribute towards the

maintenance of the principles of democracy in the union, to secure protection

for union members, also as regards the financial circumstances of the union

and to enable society to measure the progress and development of trade

unions.”31

34. In terms of s 100(a) of the LRA, registered trade unions are required to submit a

statement on the number of members they have to the registrar on an annual

basis. The form they are required to complete requires them to report on the

number of employees by sector.32

As Fergus and Godfrey point out, registration

as to sector plays an important role in determining a union’s ability to join a

bargaining council, and that council’s ability to extend collective agreements.

27

LRA s 101(2). 28

LRA s 101(3). 29

LRA s 101(4). 30

Fergus & Godfrey (n 23) at 2217. 31

A Landman ‘The Registration of Trade Unions – The Divide Narrows’ (1997) 18 ILJ 1183 at 1188 32

Regulations to the LRA in GNR 1016 CG 38317 (19 December 2014), reg 10.

11

Allowing unions to admit outside their registered scope creates “the possibility

of confusion” as “the validity of any statistics relied upon to determine a union's

representativeness may be doubted.”33

35. Fergus points out that the ability of an employer to know with whom it is

dealing, and value to society and state of being able to track the progress of

unions, will be undermined if trade unions can organize outside their

constitutional scope.34

In addition, an unbounded entitlement for a union to

claim members with total disregard to its constitution undermines core

constitutional values of accountability, transparency and democracy:

“[T]he purposes of the statutory requirements for the registration of trade unions …

extend beyond the simple regulation of relationships between unions and their

members to include promoting accountability, transparency and democracy in

unions’ internal processes and procedures. Allowing unions to recruit or organise

workers on an ad hoc basis without regard for their constitutions subverts these

purposes to the potential detriment of their members and the public at large.”35

36. The above all supports the following conclusions expressed by the LAC in

respect of the present matter:

“The ultra vires rule is of both practical and policy value. There is a direct

relationship between the conception of the trade union as a distinct legal entity and

the rule that it may not legally carry out any activity which is not authorised by the

LRA and the powers and capacities provided in its constitution. The LRA grants trade

unions specific powers and capacities to act within a particular scope and does so in

furtherance of a contemplated constitutional and policy framework. The principle of

33

Fergus & Godfrey (n 30) at 2231. 34

E Fergus ‘The Disorganisation of Organisational Rights – Recent Case Law and Outstanding Questions’ (2019) 40 ILJ

685 at 709. 35

Fergus & Godfrey (n 2330) at 2230-1.

12

legality requires observance of that framework and its purposes may not be

arbitrarily dissipated. NUMSA is accordingly not permitted in terms of the common

law or the LRA to allow workers to join the union where such workers are not

eligible for admission in terms of the union’s own constitution.”36

Organisational Rights

37. The LRA does not require trade unions to register. However, certain rights can

only be claimed by registered trade unions. That includes the organisational

rights NUMSA seeks in this matter. This is clear from the definitions in ss 11,37

14(1)38

and 16(1)39

of the LRA.

38. The organisational rights a registered union can claim include: access to the

workplace;40

the deduction of union dues;41

the recognition of union

representatives;42

leave for union activities;43

and disclosure of information.44

39. A union does not have to rely on the LRA to secure these organisational rights.

If it can convince an employer to afford it those rights without reliance on the

LRA, it is free to do so. The LRA, however, imposes the coercive power of the

state to compel an employer to grant a qualifying union organisational rights,

36


LRA s 11 reads: “In this Part, unless otherwise stated, ‘representative trade union’ means a registered trade union, or

two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an

employer in a workplace.” 38

LRA s 14(1) reads: “In this section, ‘representative trade union’ means a registered trade union, or two or more

registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a

workplace.” 39

LRA s 16(1) reads: “In this section, ‘representative trade union’ means a registered trade union, or two or more

registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a

workplace.” 40

LRA s 12. 41

LRA s 13. 42

LRA s 14 43

LRA s 15. 44

LRA s 16.

13

whether it wants to or not. Put differently, the LRA grants a union

organisational rights even if it cannot secure them through negotiation or

industrial action, provided the union meets certain conditions.

40. The key requirement for the rights NUMSA claims is that the union is

“sufficiently representative of the employees employed by an employer in a

workplace”.45

That is a direct concern about the membership of the union. There

must be sufficient employees in the workplace who are members of the union to

justify granting the organisational rights.

41. The process for asserting the rights is simple. The union writes to the employer

to notify it that it seeks to exercise the rights.46

If the union and the employer

cannot conclude a collective agreement, either party can refer the dispute to the

CCMA. It first attempts to resolve the dispute through conciliation. If that fails,

the matter may be referred to arbitration. Ultimately, the CCMA can compel the

employer to grant organisational rights to a union.

42. The rights that can be claimed under the LRA are rights of the union, not of its

members. The union must satisfy the CCMA that it meets the conditions to be

afforded those rights.

NUMSA’s Interpretation of s 4(1)(b)

43. NUMSA appears to argue that the case turns on the interpretation to be given to

s 4(1)(b) of the LRA. Lufil accepts the provision is of some relevance but the 45

LRA ss 11. For organisational rights under ss 14 and 16, the union must represent a majority of the employees. 46

LRA s 21(1).

14

fundamental question is not how to interpret s 4(1)(b). The fundamental

question is whether a trade union is entitled to rely on employees ineligible to

be admitted as members, but purportedly admitted by it, when asserting a claim

under the LRA for organisational rights. The provisions requiring interpretation

are the word “representative” in the phrase “sufficiently representative” in s 11

and the word “members” (in the phrase “have as members”) in ss 14(1) and

16(1).

44. In each instance this turns on whether employees admitted by a union in breach

of its constitution are to be considered members, for the purpose of these

provisions. Lufil’s contention is, as made clear above, that on the application of

the ultra vires doctrine (reinforced by several provisions of the LRA) they are

not. Nonetheless, to cover the contingency that this is thought to be of

importance, we turn to address NUMSA’s argument as to the proper

interpretation to be given to s 4(1)(b)

45. NUMSA argues that the words “subject to its constitution” in s 4(1)(b) should

be interpreted only to regulate the relationship between trade union and its

members47

; and not to permit an employer to object to membership when a the

union admits a member not falling within the union’s “scope”.48

Section 4(1)(b)

does not, so NUMSA argues, preclude the union and employee from “choosing

to ignore” such a provision;49

and if its constitution “disqualifies membership of

47

Applicant’s Written Submissions at para 54. 48

Applicant’s Written Submissions at paras 51 and 56. 49

Applicant’s Written Submissions at para 56.

15

certain employees”, the union is “not … bound to deny such membership”.50

46. NUMSA’s argument that the union and employee are entitled to ignore a

provision in the union’s constitution that renders the employee ineligible to be

admitted as a member is not legally tenable:

46.1. First and foremost, it renders nugatory s 95(5)(b) of the LRA, which

obliges a trade union, as a condition for registration, to “prescribe” in its

constitution “qualifications for, and admission to, membership”. On

NUMSA’s interpretation, this is rendered pointless, as the union is at

liberty simply to ignore whatever its constitution provides on the issue.

46.2. Secondly, if the union (or some or other representative thereof) is at

liberty to ignore them, this also divests the relevant provisions of the

union’s constitution of any meaningful purpose or effect.

46.3. Thirdly, had the lawgiver intended such a radical departure from well-

established common-law principles, it would doubtless have made this

clear. That it did not do so speaks volumes.

46.4. Fourthly, s 4(1)(b) confirms what would in any event have been apparent,

namely that an employee has no right to join a union which, by its

constitution, has rendered her ineligible to become a member. It in no

way supports the argument that a union is free to ignore its constitution at

will, far less that, if it does so, this is a matter which cannot be raised

against it if it seeks a right contingent on proof of its membership.

50

Applicant’s Submissions at para 66.

16

47. The only coherent interpretation of the relevant provisions read together is that

a union seeking organisational rights must, if this is disputed, establish that its

claimed members are members in terms of its constitution.

The Collateral Challenge Analogy

48. The analogy drawn by the LAC to a collateral challenge is entirely

appropriate.51

The analogy is simple.52

When an organ of state seeks to use

coercive power against a subject, the subject is entitled to resist this by raising a

collateral attack on the validity of the underlying administrative act sought to be

enforced. The ordinary procedural rules for when a challenge should be brought

do not apply – the challenge can be raised at any time.53

As the SCA has put it:

“The right to challenge the validity of an administrative act collaterally arises

because the validity of the administrative act constitutes the essential prerequisite for

the legal force of the action that follows and ex hypothesi the subject may not then be

precluded from challenging its validity.”54

49. Similarly, when a union relies on the statutory (coercive) power of the CCMA

under the LRA to compel an employer to grant it organisational rights, the

employer cannot be precluded from questioning whether the basis for the

exercise of that coercive state power – that a sufficient number of its employees

are lawful members of the union – is present.

51

LAC Judgment at para 35: Record Vol 5, pp 456-7. 52

NUMSA’s attack on the analogy - Applicant’s Written Submissions at para’s 94 and 95 - reveals that it does not

understand the point made by the Court and supported by Lufil. It thinks it applies only to the enforcement of the

Commissioner’s ruling and overlooks the fact that the point relates to the validity of the admission of the member by the

union. Lufil does not claim that NUMSA’s acceptance of Lufil’s employees as members constitutes administrative

action. That is why the collateral challenge jurisprudence is arguably not directly applicable and only analogous. 53

Oudekraal Estate (Pty) Ltd v City of Cape Town and others [2004] 3 All SA 1 (SCA) para 32 et seq. 54

Ibid at para 36 (our emphasis).

17

50. The classic statement justifying collateral challenges is in Boddington:

“It would be a fundamental departure from the rule of law if an individual were liable

to conviction for contravention of some rule which is itself liable to be set aside by a

court as unlawful. Suppose an individual is charged before one court with breach of a

byelaw and the next day another court quashes that byelaw – for example, because it

was promulgated by a public body which did not take account of a relevant

consideration. Any system of law under which the individual was convicted and made

subject to a criminal penalty for breach of an unlawful byelaw would be inconsistent

with the rule of law.”55

51. So too here. NUMSA does not claim that its constitution cannot be enforced. It

presumably accepts that any of its members could approach a court tomorrow to

question whether Lufil’s employees are valid members. But it seeks to deny that

right to Lufil, against whom it seeks to enforce coercive state power on the basis

of the (alleged) membership of Lufil’s employees. The state cannot coerce its

citizens based on an illegality. Nor can NUMSA invoke state power if its right

to do so rests on an unlawful and invalid act.

52. The analogy extends further. A collateral challenge is available if “the right

remedy is sought by the right person in the right proceedings and

circumstances.”56

As we set in Part V, it may be the case that an employer is

not always entitled to question an employee’s union membership. But it must

be able to do so in these circumstances where a union demands organisational

rights.

55

Boddington v British Transport Police [1999] 2 AC 143 (Lord Irvine of Lairg LC), cited with approval in City of

Tshwane Metropolitan Municipality v Cable City (Pty) Ltd [2009] ZASCA 87; [2010] 1 All SA 1 (SCA); 2010 (3) SA

589 (SCA) at para 14 and Oudekraal (n 53) at para 32; and Merafong City Local Municipality v AngloGold Ashanti

Limited [2016] ZACC 35; 2017 (2) BCLR 182 (CC); 2017 (2) SA 211 (CC) at fn 38. 56

Oudekraal (n 53) at para 28. See also Giant Concerts CC v Rinaldo Investments (Pty) Ltd [2012] ZACC 28; 2013 (3)

BCLR 251 (CC) at para 34; Areva NP Incorporated in France v Eskom Holdings Soc Limited and Others [2016] ZACC

51; 2017 (6) BCLR 675 (CC); 2017 (6) SA 621 (CC) at paras 40 and 53.

18

IV NUMSA MEMBERSHIP

53. Before the LAC, NUMSA accepted that Lufil’s employees fell outside its

scope.57

In this Court, it now advances an argument that its constitution permits

it to admit any employee, in any sector. The argument must fail.

54. Eligibility for membership of NUMSA is clearly defined in its constitution.

55. Clause 1(2) defines the “scope” of NUMSA as follows: “The scope of the Union

is the metal industry. See Annexure ‘B’ for details.” Annexure B provides that :

“The Union shall be open to58

all workers employed in any of the following

industries”(emphasis added), after which a series of industries59

are listed and

defined.

56. Annexure B reaches far and wide to include transport, security, mining, health

services renewable energy and the IT industry.60

But there is nothing that could

be interpreted to include the paper or packaging industry in which Lufil

operates.

57. Eligibility for membership of NUMSA is directly tied to its scope, not only by

the introduction to annexure B, quoted above, but also by clause 2(2), which

reads: “All workers who are or were working in the metal and related

57

See, for example, LAC Judgment at para 21, third sentence: Record Vol 5, p 451. 58

The obvious corollary is that the Union shall not “be open to” workers employed in other industries. 59

Initially collectively defined, by clause 22 of annexure B, as “THE METAL AND RELATED INDUSTRIES”. An

amendment to the constitution changed this so that the collection of industries came to be referred to as “The scope of the

union”. 60

Record Vol 5 pp 438-442.

19

industries are eligible for membership of the Union subject to the discretion of

the relevant Shop Stewards Council.”61

58. NUMSA’s constitution also distinguishes between active, associate and

continuation membership.62

Active membership “is available for workers

currently employed in the metal or related industry.”63

Associate and

continuation membership are for people who used to have active membership,

but who are no longer employed in the metal or related industries.

59. The centrality of NUSMA’s constitutional scope in determining the bounds of

membership is reinforced by the provisions for loss of membership. Clause

2(3)(b)(i) provides: “A member automatically loses membership 13 weeks after

becoming unemployed in the industry unless” certain conditions are met,

including if “that member is re-employed in the metal and related industries”.64

60. In short, NUMSA can only lawfully accept as members workers who are

employed in the industries listed in the industries listed in Annexure B to its

Constitution. The paper and packaging industry does not appear in Annexure B.

Therefore, NUMSA cannot lawfully admit Lufil’s employees as its members.

61. NUMSA’s argument to the contrary is untenable. It contends that because

clause 2(2) begins “All workers” instead of “Only workers”, it should not be

interpreted “restrictively” to limit NUMSA’s membership to those captured by

Annexure B. The effect of that interpretation is that there is no limitation on

61

Record Vol 5, p 403 62

NUMSA constitution cl 2(2), Record Vol 5, p 403. 63

Record Vol 5, p 404. 64

Record Vol 5, p 405.

20

membership at all. That would render clause 1(2), 2(2) and the whole of

Annexure B nugatory. (It would also be inconsistent with NUMSA’s recent

amendment of Annexure B to expand its scope; if its Constitution already

permitted it to admit any employee as a member, it is difficult to understand

why it bothered to amend Annexure B.)

62. NUMSA itself contends that the LRA imposes no limits on the scope a union

may choose to organize in; it may even regulate membership without regard to

scope.65

That may be correct but NUMSA has made its choice and elected to

limit its scope – to which it explicitly ties eligibility for membership – to the

industries listed in Annexure B.

63. Of course, as NUMSA is forced to concede,66

there is an easy solution to this

problem: it can amend Annexure B to expand its scope. Ordinarily, NUMSA

can only amend its constitution at a National Congress where: (a) general

secretaries receive 90 days’ notice of the proposed amendments; and (b) two

thirds of the National Congress support the amendment.67

64. However, NUMSA’s constitution contemplates a far easier process for altering

NUMSA’s scope. In terms of s 1(2): “The Central Committee may amend the

scope from time to time.” All that would be required for NUMSA to validly

admit employees of Lufil would be an appropriate resolution of the Central

Committee, communicated in the required manner to the Registrar and

65

Applicant’s Written Submissions at paras 79-81. 66

Applicant’s Written Submissions at para 79. 67

NUMSA constitution cl 14(1): Record Vol 5, p 435.

21

registered by her. NUMSA has not explained why it has chosen not to amend its

scope, and instead seeks to admit members outside its constitutional scope.

65. NUMSA seems to contend that the ease with which it could amend schedule B

is a point in its favour. NUMSA’s constitution is so easy to amend, it argues, so

why bother enforcing it? But the opposite is true. As we detail below, the ability

to easily amend its Constitution means that there is no limitation of NUMSA’s

(or its members) rights to association, or to join a trade union, and therefore no

reason not to follow the LAC’s interpretation of the LRA.

V CASE LAW

66. There is no case law that supports NUMSA’s position. The case law all either:

66.1. Support’s the LAC’s interpretation; or

66.2. Deals with the exercise of distinguishable rights accorded by the LRA to

individual employees.

67. Until the Labour Court’s decision in this case, our courts have never held that a

union can assert organisational rights against an employer without establishing

that the employees it claims as members have been lawfully admitted.

68. We first deal with the supporting case law, and then with the distinguishable

case law upholding certain individual employees’ rights.

SUPPORTING CASE LAW

69. First, as long ago as 1997, the Labour Court held that the purported admission

22

as a member of a union contrary to its constitution is ultra vires and that such a

person is not a member. In Van Wyk and Taylor v Dando and Van Wyk Print

(Pty) Ltd68

Landman J held: “A trade union … is constituted in terms of its

written constitution and has no powers save for those which are found in its

constitution.”69

70. Second, in Afgri Operations Ltd v MacGregor NO & Others,70

the Labour Court

reached the same conclusion as the LAC in this matter. The issue, like this one,

involved organisational rights in a workplace (although in Afgri Operations the

dispute concerned the withdrawl of organisational rights). The union’s

constitutional scope included a range of services; but not food or farming

services in which the employer operated.

71. Although the court characterised the case as one concerning locus standi,71

the

issue was the same – could a union assert organisational rights when its

supposed members were outside its constitutional scope? Moshoana AJ held it

could not:

“In terms of s 95(5)(b) of the Act, a constitution must prescribe qualifications for and

admission to membership. Therefore, if the fourth respondent's contention is to be

upheld, this peremptory provision is rendered meaningless and useless. If a union can

admit any worker, why would it be necessary for its constitution to prescribe

requirements for admission?”72

68

[1997] 7 BLLR 906 (LC); (1997) 18 ILJ 1059 (LC), particularly at 1063 69

Ibid at 910. 70

(2013) 34 IL] 2847 (LC). 71

The issue in this case was also initially framed as one of standing. Lufil conceded before the LAC that it was not truly

an issue of standing, but of the merits of the claim. LAC Judgment at para 23. But the incorrect framing of the issue in

Afgri Operations does not affect the substance of the judgment. 72

Ibid at para 26.

23

72. The Court also expressly rejected the argument that requiring trade unions to

adhere to their constitutions was unconstitutional73

– a point we return to below.

73. Third, this approach has been followed in a string of rulings by the CCMA in

circumstances substantially identical to the present:

73.1. In HOTELICCA and Grand West Casino74

the applicant union applied to

the CCMA for organisational rights in the respondent's workplace. The

employer operated in the gaming industry. The CCMA refused the

application because the union's registered scope was for the hotel

industry, not the gaming industry.

73.2. Similarly, in CEPPWAWU and Pop Snacks,75

the union sought

organisational rights. The commissioner held that a union may operate

only in sectors defined in its constitution. Importantly, the Commissioner

held (with reference to s 4(1)(b) of the LRA) that denying the union the

organisational rights did not limit the employees’ right to freedom of

association. The employees were free to join any one of the many unions

operating in the sector.

73.3. In SATAWU v Telekleen & Another,76

the CCMA again dismissed an

application by a union seeking organisational rights in a workplace

outside its scope.

73

Ibid at para 28. 74

[2002] 11 CCMA 4. 7.2 (WE4893-02). 75

(2009) 11 BALR 1156 (CCMA). 76

[2010] JOL 25818 (CCMA).

24

73.4. In NUM & Others v MTO Forestry (Pty) Ltd t/a Cape Pine,77

the

commissioner once more refused to grant a union organisational rights in

a workplace beyond its registered constitutional scope.78

74. The only CCMA decision we are aware of that granted organisational rights in

these circumstances is South African Industrial, Commercial and Allied

Workers Union and Denny Mushmoms a Division of Libstar Operations (Pty)

Ltd.79

The employer operated in the agricultural sector, while the union was

registered to operate in the food sector. The CCMA concluded that the

employer fell within the union’s scope because the union’s constitution also

covered “vulnerable workers” generally. Agricultural workers, she reasoned,

where vulnerable. Importantly, the commissioner accepted that “had the union’s

registered scope not covered the employees in question, it could not have

approached the CCMA for organisational rights.”80

75. Fourth, NUMSA refers to the decision in City of Johannesburg v South African

Municipal Workers’ Union for the proposition that “an employer even with the

best of intentions could not gain locus standi to interfere in the internal

workings of a trade union”.81

That submission is misdirected and irrelevant:

75.1. The facts are entirely distinguishable. The City approached the Labour

Court for clarity about which of two warring factions of the union was

77

[2014] CCMA Case number: WEGE2048-13 78

The commissioner in MTO Forestry expressly considered and distinguished Mabote which we discuss below. 79

[2018] 5 BALR 543 (CCMA). Discussed in Fergus (n 34) at 704. 80

Fergus (n 34) at 705 (emphasis added), referring to Denny Mushrooms at para 33. 81

Applicants’ Written Submissions at para 59.

25

legitimate. While holding the City lacked standing to do so, the Labour

Court nonetheless resolved the dispute. That is a wholly unrelated

situation. This case is not about standing, but about whether NUMSA has

established the requirements to exercise a statutory right against Lufil.

75.2. While not expressly overturned on appeal, the LAC expressed clear

disagreement with the Labour Court’s conclusion with regard to standing.

Savage AJA wrote: “My own view is that there was no attempt by the City

to interfere with the affairs of the union but that it sought certainty as to

who it should deal with in the day to day business with the union.”82

CASES ABOUT INDIVIDUAL RIGHTS

76. There are three cases – all relied upon by NUMSA – in which the courts have

declined to entertain an argument by employers that the employees were not

lawful members of the union concerned – Mabote, Bidvest and MacDonald’s

Transport. They are all distinguishable. None of them related to a claim by a

union under the LRA for organisational rights. They related to individual

employees and turned on the interpretation of different statutory provisions.

77. First, Mabote,83

in which the Labour Court (per Steenkamp J) was concerned

with whether an employee was entitled to be represented in a dismissal

arbitration by his chosen union. The employer argued that the employee was not

82

Tshililo and Others v City of Johannesburg and Others [2018] ZALAC 34; [2018] 12 BLLR 1180 (LAC) at para 7. 83

NUM obo Mabote v Commission for Conciliation Mediation and Arbitration and Others [2013] ZALCCT 22; [2013]

10 BLLR 1020 (LC); (2013) 34 ILJ 3296 (LC).

26

a lawful member of the union as his work fell outside the union’s constitutional

scope. The argument failed, essentially on the basis of the Court’s finding that

the provisions in point – primarily CCMA rule 25(1)(b)(iii)84

, but also s

200(1)(b) of the LRA – “on the face of it, grant an employee and his or her

chosen trade union – such as the applicant in this case – an unfettered right for

the union to represent the employee in arbitration proceedings”.85

The Court

also held that “it would place an unduly restrictive interpretation” upon the

above provisions to hold that the NUM was not entitled to represent the

employee.86

78. It was in this context that the Court referred to the fact that s 4(1)(b) of the LRA

provides that an employee may join a trade union “subject to its constitution”;

and held that that restriction “appears to me to regulate the relationship

between the trade union and its members inter se. It is for the trade union to

decide whether or not to accept an application for membership and whether or

not that member is covered by its constitution.”87

79. Mabote is easily distinguishable:

79.1. It turned on different provisions, primarily rule 25(1)(b) of the CCMA’s

rule88

, which permits an employee to be represented by an official “of that

party’s registered trade union”. This was interpreted as conferring a right

84

Para 32 of the judgment makes it clear that the Court considered this provision to be the determinative provision. 85

Ibid at para 24. 86

Ibid at para 30. 87

Ibid at para 27. 88

And s 200(1)(b) of the LRA, which permits a union to act in a dispute on behalf of its members.

27

on the employee to be represented “by his or her chosen trade union”.

79.2. The facts in Mabote are also instructive. The employee worked for the

Kalahari Country Club. That Club was directly controlled by the Sishen

Iron Ore Mine, which fell squarely in the scope of the union.89

The

dismissed employee had long been an admitted and dues-paying member

of the NUM, which had been recognized by his employer. The employer

attempted opportunistically to rely on an accident of legal personality, to

directly prejudice a worker. That is plainly not the case here.

79.3. Importantly, the Labour Court’s decision in Mabote must now be applied

in the light of the LAC’s decision in MacDonald’s Transport which (as

we set out below) expressly limits the finding to representation cases, and

distinguishes this from applications for organisational rights.

80. Second, Steenkamp J again considered a distinguishable issue in Bidvest Food

Services (Pty) Ltd v NUMSA and Others.90

NUMSA had applied for

organisational rights from an employer which operated in the food industry. The

employer refused, and the issue was referred to conciliation. The employer

complained that NUMSA lacked standing to refer the dispute for conciliation

because the employer operated outside its registered scope. The Commissioner

rejected the argument that NUMSA could not refer the dispute for conciliation.

But she also held that “if the union decides to refer this dispute to arbitration

once conciliation fails, the union may fail to prove that it is entitled to the relief 89

Mabote (n 83) at paras 9-10. 90

[2014] ZALCCT 58; (2015) 36 ILJ 1292 (LC).

28

it is seeking.”91

Conciliation failed, and the employees decided to strike in

support of NUMSA’s organisational rights claim. The question was whether

their participation in the strike was or was not protected.

81. The Court held that it was protected because an employee has the right to strike

if he/she has followed the relevant procedures in terms of the LRA, whether that

employee belongs to a union or not. It held that it cannot be the case that, if the

employee happens to belong to (or purport to belong to) a union, the employee

may not strike, merely because the union's constitution does not allow the

employee to be a member.92

82. But Steenkamp J also made it clear that the employees’ right to strike was

distinct from the union’s statutory entitlement to organisational rights. As he put

it: “The union may not succeed in obtaining organisational rights at Bidvest.

But the workers are not precluded from striking in pursuit of that demand.”93

83. Third, NUMSA relies heavily on MacDonald's Transport Upington (Pty) Ltd v

Association of Mineworkers and Construction Union (AMCU) and Others.94

But the case supports the LAC judgment.

84. As in Mabote, the issue in Macdonald’s Transport was whether the employees

were entitled to be represented by their union of choice in unfair dismissal

proceedings. The employer's argument was that their membership of their union

had lapsed due to non-payment of dues. Its argument failed because, first, it was

91

Ibid at para 6. 92

Ibid at paras 16 and 23. 93

Ibid at para 26, see also para 28. 94

[2016] ZALAC 32; (2016) 37 (ILJ) 2593 (LAC); [2017] 2 BLLR 105 (LAC).

29

found that the members’ membership had not in fact lapsed.

85. But the LAC also held that the employer was not entitled to question whether

the employees’ membership of a trade union had lapsed, for the purposes of

representation in dismissal proceedings. The reason was that it was the

employee’s right to choose their representative that was at issue, not the trade

union’s right to be the representative. But in reaching that conclusion, the LAC

(per Sutherland JA) took it for granted that an employer would be entitled to

question membership when the issue was a claim by a union for organisational

rights.

“Certainly, when a union demands organisational rights which accord to it a

particular status as a collective bargaining agent vis à vis an employer, it asserts and

must establish it, itself, has a right to speak for workers by proving they are its

members; sections 11- 22 of the LRA regulate that right. But in dismissal proceedings

(which, plainly, are not about collective bargaining) before the CCMA or a

Bargaining Council forum, the union is not (usually) the party, but rather the worker

is the party. … When an individual applicant wants a particular union to represent

him in a dismissal proceeding, the only relevant question is that worker’s right to

choose that union.”95

Later, the Court reiterated the point: “except as regards the need for a union to

prove membership for collective bargaining purposes, the relationship between

a union and its members is a private matter.”96

CONCLUSION

86. In summary, the current case law does not allow an employer to question an

95

Ibid at para 35. 96

Ibid at para 42.

30

employee’s membership of a union when that employee is asserting her

individual rights to strike, or to be represented by the union of her choice. But

this does not apply where, as in the present case, the union is demanding

statutory organisational rights and needs to prove the membership on which it

relies in order to qualify for the statutory right.

87. Fergus puts the point elegantly in these terms:

“organisational rights are first and foremost rights available to unions rather than to

their employee members. Thus, where the union seeks organisational or bargaining

rights, it must show that it enjoys the necessary capacity to acquire these rights of its

own accord. Where the rights at stake in any given dispute belong to the union’s

members as employees, however, the emphasis on the union's capacity as a legal

person falls away. In turn, employers have no business challenging it. The same

principle and exception applies where third parties attempt to interfere in the internal

affairs of trade unions: in collective bargaining matters (encompassing demands for

organisational rights), the union would necessarily be required to prove that it has

the members it purports to have, and that the memberships have been validly

granted.”97

88. The issue in this case is a narrow one. It is not about employer interference in

internal union affairs. It is about a union establishing the requirements for the

exercise of a statutory right. Where a union asserts those rights, it must establish

that it meets the statutory requirements.

VI THE CONSTITUTION SUPPORTS LUFIL

89. To escape the ordinary application of the LRA and the common law, the

97

Ibid at 707-8.

31

Applicant calls in aid s 39(2) of the Constitution. It claims that the LRA must be

interpreted to promote its rights to freedom of association and to fair labour

practices. That interpretation, it claims, entitles it to organisational rights based

on members who fall outside its constitutionally chosen scope.

90. The argument is bad on four levels:

90.1. It overstates the role of s 39(2);

90.2. The LAC’s interpretation does not limit the right to freedom of

association;

90.3. The LAC’s interpretation does not limit the right to fair labour practices;

and

90.4. If there is any limitation, the limitation would obviously be justifiable.

THE ROLE OF S 39(2)

91. Section 39(2) reads: “When interpreting any legislation, and when developing

the common law or customary law, every court, tribunal or forum must promote

the spirit, purport and objects of the Bill of Rights.” Section 39(2) requires a

particular approach to interpretation, but it is not a licence for courts to ignore

the text of statutes, or to advance some constitutional goals at the expense of

others.

92. NUMSA cherry picks form this Court’s jurisprudence to suggest that statutes

cannot be interpreted to limit rights, even if that limitation is plainly justifiable.

That approach is overly simplistic. Lufil submits that three considerations must

32

guide the Court’s interpretation in terms of s 39(2).

93. First, “judicial officers must prefer interpretations of legislation that fall within

constitutional bounds over those that do not, provided that such an

interpretation can be reasonably ascribed to the section.”98

Overly expansive

interpretations that do not pay sufficient heed to the words of a statute violate

the principle of separation of powers.99

As this Court recently held in Moyo:

“When attempting to interpret legislation by “reading-down” a section in order to

bring it into conformity with the Constitution, care should be taken to stay within the

boundaries of a reasonable and plausible construction that does not rewrite the text.

To overstep this mark would be tantamount to the actual “reading-in” of words into

the statute. To do so would be a clear breach of the separation of powers.”100

94. In addition, the principle of legality “requires that the law must, on its face, be

clear and ascertainable.”101

Interpretations that depart from the ordinary

meaning of statutes threaten that principle and should be justified by strong

substantive constitutional concerns.

95. Second, the Bill of Rights contemplates that the rights it protects may be

limited. Section 36(1) permits the Legislature to pass laws of general

application that limit rights, provided that the limitation is “reasonable and

justifiable in an open and democratic society based on human dignity, equality

98

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others

In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC)

at para 23 (emphasis added). 99

Ibid at para 125. 100

Moyo and Another v Minister of Police and Others; Sonti and Another v Minister of Police and Others [2019] ZACC

40 at para 57. 101

Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others [2009]

ZACC 31; 2010 (2) BCLR 99 (CC) at para 124.

33

and freedom”. The idea that rights are not absolute102

and can be limited is

therefore part of the “spirit, purport and objects” of the Bill of Rights. As this

Court held in Bader Bop: “This is not to say that where the legislature intends

legislation to limit rights, and where that legislation does so clearly but

justifiably, such an interpretation may not be preferred in order to give effect to

the clear intention of the democratic will of Parliament.”103

96. The logic of this approach is inescapable. A prohibition of child pornography

limits the right to freedom of expression, but that limitation is justifiable.104

If

Parliament passes legislation that could be interpreted to either permit or

prohibit the production or sale of child pornography, a court is not obliged to

adopt the interpretation in favour of child pornography.

97. Third, courts must consider all the rights at stake.105

When multiple rights are at

stake, or where the rights of multiple parties are at stake, the different rights will

often require contrary interpretations. Reliance on one right is impermissible.

98. In sum, Lufil submits that both the text and the constitutional rights at stake

support the LAC’s interpretation. But in selecting the correct interpretation

courts must only choose interpretations that do not “unduly strain”, must

102

See, for example, Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of

Offenders (NICRO) and Others [2004] ZACC 10; 2005 (3) SA 280 (CC) at para 23; South African Broadcasting

Corporation Limited v National Director of Public Prosecutions and Others [2006] ZACC 15; 2007 (1) SA 523 (CC) at

para 91 (Moseneke DCJ, dissenting); Gaertner and Others v Minister of Finance and Others [2013] ZACC 38; 2014 (1)

SA 442 (CC) at para 49. 103

National Union of Metal Workers of South Africa and Others v Bader Bop (Pty) Ltd and Another [2002] ZACC 30;

2003 (3) SA 513 (CC) at para 37. 104

De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others [2003] ZACC 19; 2004 (1)

SA 406 (CC); 2003 (12) BCLR 1333 (CC). 105

Phumelela Gaming and Leisure Limited v Gründlingh and Others [2006] ZACC 6; 2006 (8) BCLR 883 (CC) at para

37; Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and

Another [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) at para 44.

34

consider all the rights at stake, and must allow Parliament to legitimately limit

rights.

THE RIGHT TO JOIN A TRADE UNION

99. NUMSA asserts the LAC’s interpretation of the LRA limits the right of workers

“to form and join a trade union”, but does not explain why. It is difficult to

understand how that could be the case.

100. NUMSA does not allege that the LAC’s interpretation limits the rights of trade

unions in ss 24(2)(a) and (b) of the Constitution to “determine its own

administration, programmes and activities”, or “to organize”. Nor does it allege

that the LAC’s interpretation of the LRA limits the right of trade unions to

bargain collectively.106

It must be accepted that limiting the statutory

entitlement to orgnisational rights to registered trade unions with a sufficient

number of validly admitted members is consistent with the union’s

constitutional rights.

101. The right in s 23(2)(a) to form and join a trade union is an individual right of

workers. It is not a right of unions. There can only be a limitation of the right if

workers are in fact prevented from joining a trade union.

102. Section 23(2)(a) does not, having regard to the purpose of the right, confer a

right on a worker to join a trade union contrary to that union’s constitution. The

106

Constitution s 23(5).

35

right to join a trade union, like to right to freedom of association with which it is

closely connected, can only be exercised respecting the correlative rights of

others. If workers form a trade union and elect to provide in its constitution that

it is only open to employees in a particular industry, this is not a limitation of

the right of a worker not working in that industry to join a trade union.

103. An employee of Lufil could also not compel NUMSA to accept her as a

member if NUMSA did not want to accept her. That would clearly be

inconsistent with NUMSA’s (and its members’) right to freedom of association,

and NUMSA’s right to “determine its own administration”. It would effectively

deny a union the right to determine its own membership and deny its members

the right to chooses with whom they wish to associate. The right in s 23(2)(a) is

– like the right in s 4(1)(b) of the LRA – a right to join a union subject to that

union’s constitution.

104. That is consistent with this Court’s finding in Ramakatsa that “the right to

participate in the activities of a political party confers on every political party

the duty to act lawfully and in accordance with its own constitution.”107

The

corollary of the right to join a union, is the duty of a union to obey its

constitution. Without that duty, the right to join is meaningless. And that must

mean that the right to join is subject to the union’s constitution.

105. Fourth, the only effect of the LAC Judgment is to preclude a union from

asserting a statutory right against an employer if its claim is founded on a

107

Ramakatsa (n 24) at para 16.

36

breach of its own constitution. That does not limit the right of a worker to join a

union, subject to the union’s constitution.

106. Fifth, that places no meaningful hurdle in the way of NUMSA claiming

organisational rights for its members:

106.1. NUMSA can, without much effort, amend its constitution to include the

paper and packaging industry.

106.2. NUMSA remains free to seek to convince Lufil to grant it organisational

rights. Its members are also – in terms of the case-law – entitled to strike

to advance that claim.

107. Accordingly, there is no limitation of the right to join a trade union.

THE RIGHT TO FREEDOM OF ASSOCIATION

108. NUMSA asserts that the LAC’s interpretation limits the right to freedom of

association, without ever explaining why. It seems to assume that requiring a

voluntary association to act consistently with its constitution limits free

association.

109. In truth, there is no limitation at all. It promotes the right to freedom of

association to hold voluntary organisations to their constitutions.

110. First, the ability to regulate membership is fundamental to the right to freedom

of association. International law recognizes that “[t]he right to freedom of

association generally entitles those forming an association and those belonging

37

to one to choose with whom they form it or whom to admit as members.”108

111. Without the ability to regulate membership, the right to association is

meaningless. Associations exist to promote a certain purpose. If they cannot

limit their membership to people who share that purpose, they cannot achieve

that goal. As Woolman explains:

“Without the capacity to police their membership and dismissal policies, as well as

their internal affairs, associations would face two related threats. First, an

association would be at risk of having its aims substantially altered. To the extent the

original or the current raison d’étre of the association matters to the extant members

of the association, the association must possess the ability to regulate the entrance,

voice and exit of members. Without built-in limitations on the process of determining

the ends of the association, new members, existing members and even outside parties

could easily distort the purpose, the character and the function of the association.

Second, and for similar reasons, an association’s very existence could be at risk.

Individuals, other groups or a state inimical to the values of a given association could

use ease of entrance into and the exercise of voice in an association to put that same

association out of business.”109

112. In the union context, this risk is obvious. Imagine a union is established to

advance the interests of paper workers. Its constitution limits membership to

workers in that sector. It joins the bargaining council for that sector and

establishes collective agreements with all the major employers. Workers in

other industries see that the union is effective, and seek to join the union. Some

shop stewards start admitting workers in other sectors, contrary to the union’s

constitution. Over time, paper workers become a minority in the union. The

108

Organization for Security and Co-operation in Europe Joint Guidelines on Freedom of Association (2015) at para 95.

See also African Commission on Human and People’s Rights Guidelines on Freedom of Association and Assembly in

Africa (2017) at para 8 “Those founding and belonging to an association may choose whom to admit as members.” 109

S Woolman ‘Freedom of Association’ in S Woolman & M Bishop (eds) Constitutional Law of South Africa (2 ed,

2003) at 44-14 to 44-15.

38

union’s focus shifts to other sectors. Other unions gain majority representation

in the paper workplaces previously represented by the union. The union decides

it is no longer worth being a member of the paper bargaining council.

113. The outcome of not enforcing an association’s membership is fatal:

“To fail to permit [an association] to govern its boundaries and its members in

appropriate ways would make these arrangements impossible to maintain. It would,

in some respects, be equivalent to saying that anyone and everyone owns these

associations – which is, of course, tantamount to saying that no one owns them.”110

114. Of course a union may choose – as NUMSA has previously done – to expand its

scope. It has then changed its purpose and its new membership will be

consistent with that purpose. But it must do so consistently with its founding

documents that protect the rights of existing members. If it allows members to

join contrary to its constitution it undermines the association rights of all its

members.

115. Holding a union to its constitution therefore promotes the right to freedom of

association. It ensures that the power to determine membership is determined in

line with the original agreement between the members. Enforcing that

agreement is foundational to free association. Indeed, it is arguably a

requirement for the exercise of the right that the state is willing to enforce the

boundaries of union membership.

116. Second, NUMSA has not been prevented by the LRA from admitting Lufil’s

employees as members. The only obstacle to it admitting them is its own

110

Ibid at 44-15.

39

constitution. It remains free to amend its constitution, register that amendment,

and then admit as many as Lufil’s employees as may wish to join. The power is

in its own hands. NUMSA does not explain why it has not amended its

constitution to include the paper industry.

117. For that reason, it is not clear that NUMSA as an organization in fact wants to

admit Lufil’s employees as members. If it did, the only way for it to lawfully

express that desire as an organization is to amend its constitution. Any other

course does not be a decision of the union, but an ultra vires decision of certain

officials within the union.

118. Third, Lufil too has a right to freedom of association. That includes a right to

decide whether or not to conclude a collective agreement with a union granting

it organisational rights. That freedom is justifiably limited by the LRA when it

compels Lufil to grant organisational rights to a union that establishes that it is

“sufficiently representative”. As the ILO puts it: “The voluntary negotiation of

collective agreements, and therefore the autonomy of the bargaining partners,

is a fundamental aspect of the principles of freedom of association.”111

119. The limitation is justified because of the extent of the union’s membership. The

right of the employees to fair labour practices outweigh the right of the

employer not to associate where the union is “sufficiently representative”. But it

is still a limitation on Lufil’s s 18 right. If Lufil is prevented from questioning

whether the union validly admitted its employees as members, that limitation is 111

ILO Freedom of Association: Compilation of decisions of the Committee on Freedom of Association (6 ed, 2018) at

para 1313.

40

difficult to justify. It will be compelled to associate, whether or not there is a

justification for compelling it to do so.

120. Fourth, all that is at stake here is whether or not NUMSA can claim

organisational rights. As emphasized earlier, Lufil is not seeking to interfere in

NUMSA’s internal affairs. It seeks only to ensure that the exercise of statutory

power against it is lawful. That is not a limitation of the right to free association.

ANY LIMITATION IS JUSTIFIABLE

121. For the reasons given above, there is no limitation of the rights in either s

23(2)(a) or s 18. But if there is, that limitation is justifiable in terms of s 36(1)

of the Constitution. The limitation would flow from the common law and the

LRA and would therefore be a “law of general application” that can potentially

limit rights. The following factors demonstrate that the limitation is justifiable.

122. First, any limitation is extremely minor. Workers remain free to join any union

whose constitution permits them to join. Unions remain free to amend their

constitutions to admit whatever category of workers they desire. In terms of

existing case law, even if workers join unions contrary to the union’s

constitution, an employer cannot challenge the membership when the employer

exercises her individual rights.

123. Second, there is a powerful purpose behind the limitation. It protects the

associational rights of unions and members by compelling compliance with

41

their own internal documents. It protects the associational rights of employers

by forcing them to recognize organisational rights only when a union has

lawfully admitted its employees as members. It advances the public benefits of

registration that allow the state, the public and employers to know who they are

dealing with and to track the performance of unions. And it fits the LRA’s

preference for collective bargaining within sectors.

124. Third, the limitation is “appropriately tailored”112

to achieve its purpose. It does

not permit unwarranted employer interference in union affairs. It only allows an

employer to question union membership when the union seeks to use coercive

state power, and the employer’s own associational rights are at stake.

125. Fourth, as we set out below, it is entirely consistent with international law and

comparative practice.

126. For these reasons, assuming that there was a limitation of s 23 or s 18, that

limitation is justifiable. Indeed that was the finding of both Afgri Operations113

and the LAC.114

VII INTERNATIONAL AND COMPARATIVE LAW

112

Mlungwana and Others v S and Another [2018] ZACC 45; 2019 (1) BCLR 88 (CC); 2019 (1) SACR 429 (CC) at para

101. 113

Afgri Operations (n 70) at para 28 (“In terms of the Constitution of the Republic of SA, s 23 thereof, every worker has

a right to join a trade union. Therefore, a right to join a trade union is an individual right. However, in s 4(1)(b) of the

LRA, that right has been limited within the contemplation of s 36 of the Constitution to its being subject to the

constitution of the trade union. In other words, if a constitution does not allow a member to join he or she cannot join. If

he or she does nonetheless, he or she will not be acting within the law. It cannot be said that this limitation is not

justifiable in an open and democratic society.”) Of course, the limitation here is more confined. Workers and unions are

held to the constitution only when they seek to interfere with an employer’s right to free association by seeking to compel

the grant of organisational rights. It too must be justifiable. 114

LAC Judgment at para 31: Record Vol 5, pp 454-5.

42

INTERNATIONAL LAW

127. International law is relevant to interpreting the LRA – both because of s 1(b) of

the LRA,115

and because ss 233116

and 39(1)(b)117

of the Constitution demand a

consideration of international law. Consideration must be given, in particular ,

to relevant ILO conventions and recommendations .118

ILO instruments strongly

support the reasoning of the LAC. At worst, they are neutral on this issue.

128. The most important instrument is the Convention on Freedom of Association

and Protection of the Right to Organise No. 87 of 1948 (ILO Association

Convention). It makes it plain that holding unions to their constitutions is not

contrary to free association; it is constitutive of free association. The following

provisions make that clear:

128.1. Article 2 reads: “Workers and employers, without distinction whatsoever,

shall have the right to establish and, subject only to the rules of the

organisation concerned, to join organisations of their own choosing

without previous authorisation” (our emphasis).

128.2. In terms of art 3(1) employees “shall have the right to draw up their

constitutions and rules, to elect their representatives in full freedom, to

organise their administration and activities and to formulate their

115

LRA s 1(b) identifies one of the primary purposes of the Act as: “to give effect to obligations incurred by the Republic

as a member state of the International Labour Organisation”. 116

Constitution s 233 reads: “When interpreting any legislation, every court must prefer any reasonable interpretation of

the legislation that is consistent with international law over any alternative interpretation that is inconsistent with

international law.” 117

Constitution s 39(1)(b) reads: “When interpreting the Bill of Rights, a court, tribunal or forum - … must consider

international law”. 118

Bader Bop (n 103) at para 28.

43

programmes.” While art 3(2) prohibits public authorities from “any

interference which would restrict this right or impede the lawful exercise”

of that right, holding unions to their own constitutions hardly constitutes

interference.

128.3. Article 8(1) requires that unions, “like other persons or organised

collectivities, shall respect the law of the land.” Unions are not entitled to

different or better treatment than what applies to other voluntary

associations – provided those laws are themselves consistent with the

Convention.

129. The ILO Commentary on the ILO Association Convention119

makes it clear that

it is perfectly permissible to: (a) require unions to register their constitutions;

and (b) to hold them to their freely adopted constitutions.

129.1. The ILO Association Convention protects the “freedom of choice with

regard to membership of such organizations.”120

But freedom of

membership must include the freedom of unions to exclude members. As

noted above, the right to associate is meaningless without a right not to

associate.

129.2. The right of employees to establish organizations of their own choosing

implies the right to freely choose “the structure and composition of

organizations; the establishment of one or more organizations in any one

119

Bernard Gernigon, Alberto Odero & Horacio Guido ‘Freedom Of Association’ in Fundamental Rights at Work and

International Labour Standards’ (2003). 120

Ibid at 13.

44

enterprise, occupation or branch of activity”.121

The LRA grants that

right without restriction. It requires only that unions exercise that right in

compliance with their founding document.

129.3. On the right of a union to establish its own rules, the commentary

provides only that: (a) laws “should only lay down formal requirements”;

and (b) “the constitutions and rules should not be subject to prior

approval at the discretion of the public authorities.”122

The LRA meets

both those requirements.

130. Conspicuously, there is nothing in the commentaries that suggests that unions

must have the right to admit members contrary to their own freely-adopted

constitutions. Nor is there anything that suggests unions have a right to

organisational rights

131. The same is true of the view of the ILO’s Committee on Freedom of

Association.123

The Committee recognizes that all employees have the right “to

establish and join organizations of their own choosing.”124

But that right can be

made subject to “the duty of observing formalities concerning publicity or other

similar formalities which may be prescribed by law”. Indeed, “legislation

concerning trade unions in itself does not constitute a violation of trade union

121

Ibid at 14. 122

Ibid. 123

In 1951 the ILO set up the Committee on Freedom of Association (“the Committee”) for the purpose of examining

complaints about violations of freedom of association, whether or not the country concerned had ratified the relevant

conventions. Complaints may be brought against a member state by employers' and workers' organisations. The decisions

of the Committee are captured in ILO Compilation of Decisions of the Committee on Freedom of Association (6th

ed,

2018). 124

Ibid at para 332.

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rights, since the State may legitimately take measures to ensure that the

constitutions and rules of trade unions are drawn up in accordance with the

law.”125

Accordingly, to protect the right of unions’ “to draw up their

constitutions and rules in full freedom, national legislation should only lay

down formal requirements”. That is what the LRA does. It dictates form, not

content.

132. The only limit is that the formalities do not constitute a practical prohibition on

operation.126

That applies equally to regimes like the LRA which do not require

registration, but confer benefits – the right to seek organisational rights – on

unions that do register. The LRA clearly meets that test.

133. Again, nothing in the work of the Committee suggests – let alone requires – that

workers have a right to join unions contrary to that union’s constitution. And

nothing suggests that employers cannot resist the imposition of statutorily

created rights if the union has violated its own constitution in order to acquire

that right.

134. Indeed, the most relevant statement holds that the state – in this context the

CCMA – “should, in all cases, have the power to proceed to an objective

verification of any claim by a union that it represents the majority of the

workers in an undertaking”.127

The effect of NUMSA’s approach is to deny not

only the employer, but also the CCMA the ability to question whether,

125



Compilation para 1366.

46

objectively, the union sufficiently represents employees in the workplace.

135. NUMSA cites this Court’s judgment in Bader Bop, which held that ILO

jurisprudence entailed that “freedom of association is ordinarily interpreted to

afford unions the right to recruit members and to represent those members at

least in individual workplace grievances; and, secondly, the principle that

unions should have the right to strike to enforce collective bargaining

demands.”128

This Court recently endorsed that holding in POPCRU.129

Quite

so. The LAC has not interfered with those rights. Under MacDonald’s

Transport and Bidvest employers cannot question membership in those

contexts.

136. But neither Bader Bop nor the ILO grant union’s an entitlement to demand

organisational rights based on members who do not qualify for membership in

terms of the union’s constitution.

COMPARATIVE LAW

137. Comparative law is not particularly useful in this area as each country has a

unique statutory framework. However, as NUMSA has sought to call

comparative law in aid, we briefly address four cases.

138. First, NUMSA relies on a decision of the Nigerian Industrial Court in Nestoil

128

Bader Bop (n 103) at para 34, quoted in Applicant’s Written Submissions at para 49. 129

Police and Prisons Civil Rights Union v South African Correctional Services Workers' Union and Others [2018]

ZACC 24; [2018] 11 BLLR 1035 (CC); 2018 (11) BCLR 1411 (CC); (2018) 39 ILJ 2646 (CC); 2019 (1) SA 73 (CC) at

para 90 (“Any statutory provision that prevents a trade union from bargaining on behalf of its members or forbidding it

from representing them in disciplinary and grievance proceedings would limit rights in the Bill of Rights. Forcing

workers who belong to one trade union to be represented by a rival union at disciplinary hearings seriously undermines

their right to freedom of association described earlier.”)

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Plc v National Union of Petroleum and Natural Gas Workers.130

It occurred in a

very different statutory framework. In Nigeria, each industry has a single union

to represent it. Once a union is recognized in that industry, all junior staff would

automatically be considered members of that union unless they opt out, and all

senior staff would not be considered members unless they opt in. As the Court

put it: “registration is deemed, recognition automatic and deduction of check-

off dues compulsory, being based on mere eligibility to be a member of the

union in question.”131

That is why the Court held that a rival union would have

standing.132

139. However, the Nigerian Court’s conclusion that an employer cannot question

whether a union operates within a particular scope does not seem to follow from

its premises. It rightly holds that an “employer has no right or interest in asking

an employee to either join a particular union or not to join a union”,133

and that

“no employer is permitted to interfere, no matter how minutely it may be, in the

internal running and management of a trade union”.134

But that does not mean

an employer is powerless when a union acts unlawfully. Insisting that a union

complies with its constitution – or with its statutorily defined scope – if it wants

to invoke statutory power does not interfere with its internal arrangements, and

does not force an employee to join one union and not another; it simply upholds

130

Suit No: NIC/LA/08/2010. 131

Ibid at 27 132

Ibid. 133

Ibid. 134

Ibid at 28.

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the rule of law.

140. Second, the Supreme Court of Canada addressed precisely the same issue in

Alberta Board of Industrial Relations et al. v. Stedelbauer Chevrolet

Oldsmobile Limited.135

A statutory board recognized a union as the “bargaining

agent” for an employer – the equivalent of statutory rights under the LRA. The

employer objected on the grounds that its employees fell outside the

constitutional scope of that union. In a statutory framework far closer to the

LRA than Nigeria’s, the Supreme Court adopted the same approach as the LAC.

It held that the Board had been wrong to certify the union when the employees

could not join the union in terms of the union constitution.136

141. Third, so too the Industrial Court of Botswana. In CASAWU v Turnstar

Holdings Limited137

it upheld an employer’s objection to recognizing a union

because its employees fell outside the union’s scope. As the Court put it: “The

[employer] is involved in property investment which is not one of the industries

the [union] is concerned with in terms of Article 4 of its constitution.”138

142. Fourth, the issue in Botswana Railways v Botswana Railways Train Crew

Union139

was slightly different. It concerned the meaning of s 48(1) of the Trade

Unions and Employers’ Organizations Act which read: “If a trade union

represents at least one third of the employees of an employer, that trade union

135

[1969] SCR 137. 136

Ibid at 144-5. 137

[2017] All Bots 80 (IC) 138

Ibid at para 9. 139

2010 All Bots 44 (CA).

49

may apply for recognition under Section 32 of the Trade Disputes Act”.

Recognition is the equivalent of organisational rights. The union argued that,

read in context, this referred to one third of the employees “in the same trade”.

The employer argued that it referred to one third of all employees.

143. The Court of Appeal agreed with the employer. But the important point for the

purpose of this case is its treatment of the union’s reliance on the same

constitutional rights and ILO conventions as NUMSA. In particular, it argued

that the employer’s failure to recognize it violated the right to free association

because it forced its members “to join a union which the [employer] has chosen

to recognize and not one which they want to join.”140

The Court of Appeal was

unpersuaded. “There is nothing in [the right to free association]”, the Court

held, “which … confers on every person in Botswana the rights and duties

which come with recognition in terms of section 48 of the Act. [The right] is not

concerned with the bargaining rights and duties of employers and trade unions

in the field of labour relations.”141

It also dismissed reliance on the right to join

a trade union for the same reason – it was not concerned with the grant of

organisational rights.142

On the ILO Conventions, the Court of Appeal again

held that they had nothing to do with the grant of organisational rights.143

140




Ibid at para 49.

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VIII CONCLUSION

144. NUMSA is a union for metalworkers and workers in other specified industries.

It is not a union for workers in the paper and packaging industry. That is not a

result of any “interference” by Lufil. That is the choice of NUMSA’s members,

expressed through their constitution. Unless and until NUMSA amends its

constitution, it cannot use the power of the state to claim organisational rights in

Lufil. To hold otherwise would be to endorse illegality and undermine

constitutional rights.

145. On costs: The LAC granted costs precisely because both parties sought costs.

In those circumstances, it was fair for the LAC to grant costs,144

and there is no

basis to interfere with its discretion.145

Despite relying on Zungu to avoid costs

in the LAC, NUMSA continues to seek costs in this Court. Lufil does the same.

146. The application for leave to appeal should be dismissed. Alternatively, if it is

granted, the appeal should be dismissed. In either case, Lufil is entitled to its

costs, including the costs of two counsel.

ALEC FREUND SC

MICHAEL BISHOP

144

Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1; (2018) 39 ILJ 523 (CC); [2018] 4

BLLR 323 (CC); 2018 (6) BCLR 686 (CC) at para 24. 145

See, for example, Limpopo Legal Solutions and Another v Eskom Holdings Soc Limited [2017] ZACC 34; 2017 (12)

BCLR 1497 (CC) at para 20.

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Counsel for the First Respondent

Chambers, Cape Town

31 October 2019

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CCT 172/19 ...

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