In Ngcobo NO v Fawu [2012] 10 BLLR 1035 (HCKZN) Justice Swain ordered FAWU to pay damages of R214,464 plus interest thereon at the rate of 15.5% pa from 28 August 2004 and costs to two former members of the trade union.

The first known judgment in SA where a trade union has been ordered to compensate  members for failing to pursue an unfair dismissal claim against their employer after agreeing to do so.

Facts in brief:

  • The two former employees were members of the trade union FAWU.
  • Their employer  Nestlé SA (Pty) Ltd dismissed them allegedly for a reason based on operational requirements.
  • They claimed that the dismissals were either unlawful or unfair and instructed their trade union FAWU to handle their claims.
  • FAWU failed to do so causing them to suffer damages for loss of employment.
  • They instituted action in the High Court alleging that FAWU owed them the money that Nestlé should have been ordered to pay them.
  • The cause of action against FAWU was alleged breach of mandate.
  • Justice Swain finally decided that FAWU had agreed to assist them but failed to do so.   In other words the action was based on breach of contract.

Judgments referred to by justice Swain:

City of Cape Town (CMC Administration) v Bourbon-Leftley

2006 (3) SA 488 (SCA) at para 19

“A proposed tacit term can only be imported into a contract if the court is satisfied that the parties would necessarily have agreed upon such a term if it had been suggested to them at the time ….”

Alfred McAlpine & Son (Pty) Ltd. V Transvaal Provincial Administration

1974 (3) SA 506 (A) 531 – 532

“… unexpressed provision of the contract which derives from the common intention of the parties, as inferred by the Court from the express terms of the contract and the surrounding circumstances.  In supplying such an implied term the Court, in truth, declares the whole contract entered into by the parties”

Premier Gauteng v Ramabulana NO

[2008] 4 BLLR 299; (2008) 29 ILJ 1099 (LAC) para 15

Academic and Professional Staff Association v Pretorius NO

[2008] 1 BLLR 1; (2008) 29 ILJ 318 (LC) 322 paras 17 – 22

S A Municipal Workers Union v Jada & Others

(2003) 24 ILJ 1344; 2003 (6) SA 294 (W)