procuring
payment of monies to himself;
calling
meetings of the NEC;
holding
on to the Applicant's cheque book and keys; and
locking
the Applicant's Secretary-General out of his office.
3.
The Applicant argues that since the Respondent is no longer a member
of the union he has ceased to be President of the Union.
4.
The Applicant also argues that since the Respondent has lost his
employment at YKK South Africa, he cannot continue to hold office in
terms of the Applicant's constitution.
5.
In the present application the Applicant seeks a rule nisi operating
with interim effect in the following terms:
5.1. Interdicting the
Respondent from interfering with the operations of the office of
Applicant or whatsoever and/or harassing, communicating with the
Applicant's Secretary General either directly or indirectly.
5.2. Interdicting the
Respondent not to come within (10) ten metres of the Applicant's
office and not to communicate with stake holders of Applicant
concerning the business of the Applicant.
5.3. Directing the
Respondent to return to Applicant its office keys, cheque book and
all property belonging to it that are in his possession.
5.4. Directing the
Royal Swaziland Police to ensure that this order is carries out and
adhered to by the Respondent.
6.
The application has been brought as a matter of urgency, and the
Respondent has not been given sufficient time to file an opposing
affidavit. His counsel appeared to argue that no sufficient case has
been made out for the relief sought.
7.
The parties agreed to the matter being heard by the President of the
Court sitting without the members as permitted by section 6 (7) of
the Industrial Relations Act 2000 (as amended).
8.
I raised at the outset two preliminary issues, namely whether the
court has jurisdiction to hear the matter, and whether there is
adequate proof that the Applicant has authorized the bringing of
this application by its Secretary-General.
9.
Where a dispute arises between two factions in the executive
committee of an organization, it is important for the court to
determine at the outset whether the application, brought in the name
of the organization, indeed has the blessing and authority of the
organization, or whether it is merely one faction suing in the name
of the organization to obtain greater legitimacy for its claims. The
best proof of authority is a resolution of the executive committee
passed and signed in accordance with the constitution.
10.
In the present case, the Applicant's Secretary-General has deposed
to the founding affidavit. From the papers it is clear that there is
considerable animosity between the Respondent and the
Secretary-General. The Secretary-General stated on oath that he is
duly authorized to depose to the Affidavit for and on behalf of the
Applicant. This allegation is barely sufficient proof of authority
in a case of this nature where there is dissention within the NEC
itself.
11.
On the question of jurisdiction, the Applicant itself states in its
affidavit that the Respondent is not its employee, nor is the
Respondent its member.
In
matters not involving the infringement of the provisions of a labour
law statute, the court may only determine disputes arising between:
employer
and employee, or their respective organizations ;
organizations;
an
organization and its member
see
section 8 (1) of the Industrial Relations Act 2000 (as amended).
12.
On the Applicant's own papers, the court has no jurisdiction to hear
this application.
13.
The matter goes further, however. In my view, on a reading of the
Applicant's constitution the Respondent is a member of the
Applicant. As I held in Sipho
Mamba v SMAWU and Others (IC Case No. 52/2007) a
disciplinary hearing for a member of the Applicant's NEC must be
conducted by a committee appointed by the union's National Centre,
viz the SFL - see article 14.4 of the Constitution. Whilst failure
to pay subscriptions for a period of 3 months is indeed a
disciplinary offence (article 14.1.1) the NEC had no power to
discipline the President of SMAWU by expelling him from membership
of the union.
14.
The Respondent's removal as a member was ultra vires and unlawful
15.
I have also not been able to find any provision in the Applicant's
constitution which states that a member and/or officer of the union
immediately forfeits his membership and/or office when he ceases to
be employed in the industry or trade in which the union is active.
Rules 3.10 and 3.11 indicate quite the contrary.
16.
The Respondent is still a member of the union and he is still the
President of the union.
17.
Notwithstanding what is contained in the Applicant's own affidavit,
the court does have jurisdiction to hear this matter as a dispute
between the union and its member.
18.
It is not surprising that the Respondent has reacted in a hostile
manner to his unlawful expulsion, although it must be said that
locking the Secretary-General out of his office, if this occurred,
also amounts to illegal self-help.
19.
I am not satisfied that a prima facie case has been shown by the
Applicant to warrant the issue of a rule nisi. The parties would be
well-advised to either involve an independent mediator to resolve
their internal disputes, or to urgently call a Special General
Meeting to enable the members of the organization to resolve the
conflict within the NEC.
20.
The application is dismissed. There is no order as to costs.
P.
R. DUNSEITH
PRESIDENT
OF THE INDUSTRIAL COURT
