Satawu v Zondo (J 715/15) [2015] ZALCJHB 126 (2015) ILJ 2348 (LC) (17 April 2015) per Van Niekerk J.

The union applied to the Labour Court in terms of s 158(1)(e)(i) of the LRA to interdict shop stewards, who had purportedly been expelled from the union, from discharging any duties or deriving any benefits from their offices as such.  The shop stewards contested the validity of the resolution expelling them. The union constitution prescribed the procedure for taking disciplinary action against union office bearers and had not been followed and was held to be invalid.

In terms of s 95(5) of the LRA the constitutions of trade unions must prescribe various procedures concerning expulsion and removal from office, including appeals.

In refusing to grant Satawu’s application the Labour Court held that union members, officials and office bearers were entitled to protection against any arbitrary exercise of power.

Once again the fundamental principle of legality has been enforced by the courts and justice Van Niekerk also dealt with the concepts of jurisdiction and powers.

It is also interesting to read the following extract from the judgment dealing with the fallacious argument that employees can dismiss themselves.

“[19] The fundamental difficulty I have with the case of exceptionalism on which the union relies (i.e. that the August 2012 resolution by the CEC creates an exceptional circumstance in terms of which union members are automatically expelled, regardless of the provisions of the constitution) is that the August 2012 resolution stands so starkly and fundamentally at odds with the provisions of the constitution. In effect, the resolution relies on the notion that by one’s conduct, one can dismiss oneself.

Prior to the introduction of a new labour dispensation following the Wiehahn Commission’s recommendation in 1979, this was a commonly accepted manner for employers to deal especially with absence from work, and to avoid any consequences that might flow from the act of dismissal.

It was quickly replaced by the rule that any notion of automatic self- dismissal was inimical to the conception of fairness embodied in labour legislation, and that it was for an employer, at its initiative, to terminate employment provided there were justifiable grounds to do so, after following a fair procedure.”