The Labour Court has denied the National Union of Metalworkers of South Africa's (Numsa's) application for leave to appeal its ruling interdicting its controversial and currently on-going national congress.

Numsa general-secretary Irvin Jim and Numsa president Andrew Chirwa were re-elected unopposed at the congress on Wednesday evening. The group of formerly suspended officials, who initially brought the case for the interdict, as well as their lawyers now argue that the latest ruling effectively declares the election invalid.

The Labour Court ruled on Thursday morning after Numsa appealed a weekend interdict compelling the union to rectify the suspensions and congress arrangements before going ahead with the gathering. In the meantime, Numsa lifted the suspension of officials and continued with the congress.

The lawyers for the formerly suspended officials told Labour Court Judge Graham Moshoana that the union's special central committee (SCC) did not have powers that supersede the union's constitution.

It was a meeting of the SCC of Numsa that placed South African Federation of Trade Unions president Ruth Ntlokotse on suspension earlier this month.

Thursday's ruling said that if leave to appeal were to be granted, the decision of the Labour Appeals Court would have no practical effect for either of the parties because the union decided to proceed with the congress despite the interdict.

"In my view, the mootness of this appeal is plain. The interdictory relief sought has been overtaken by events. The action which it was formulated to prevent has occurred. The relief which was sought is now perfectly academic," Moshoana's order said.

Sources have told Fin24 that the formerly suspended officials have advised their lawyers to draft a contempt of court application, and are preparing for a bid by Jim to fire them in the coming weeks.

Numsa's lawyers and those for the 31 officials who had their suspensions from the union lifted made oral submissions to the Labour Court via a virtual hearing on Wednesday evening.

Numsa said Judge Moshoana misinterpreted the union's constitution because he applied common rules of precautionary suspensions when the Numsa constitution does not refer to "precautionary suspensions".

The virtual hearing was taking place at the same time that Jim was tabling a report to the congress in Cape Town. Jim earlier told delegates at the congress that the suspension of the officials that approached the Labour Court was lifted and that Numsa's Mpumalanga region would no longer be under administration.

A different opinion

On Wednesday evening, legal counsel for Numsa, Advocate Margareta Engelbrecht (SC), told the Labour Court that the Numsa constitution include the text of the constitution as well as the contextual meaning as the needs of the union and its structures arise.

"This matter is concerned with the constitution of Numsa. Your lordship took a particular position in that the constitution provides rights and everything must be evaluated within the four corners of the constitution. That is the constitution. However, we submit to you that a constitution is a contractual document," said Engelbrecht.

Moshoana asked Engelbrecht how unions go about formulating their constitutions. She replied the practice of the union infuses the meaning of the constitution. 

"It is ultimately a document created through the national structures and over time it is adjusted to make provisions and amendments where necessary. Over time it is developed essentially by members and those in the structures to regulate the functions of the union," Engelbrecht said.

She said the conduct of union members gave meaning to how the union and its structures responded. She said Numsa's appeal sought to clarify if the Labour Appeals Court would reaffirm this view. Engelbrecht said the union's leadership had compelling reasons for the suspension of the officials, regardless of the validity of the suspension.

"Are they (union structures) supposed to not do anything and just allow a member to conduct themselves in a manner that undermines the union? One is tempted to reargue the matter. What you lordship must consider tonight is not whether your lordship was wrong. What your lordship must consider is whether it is reasonable that the Labour Appeal Court can come to a different conclusion," she said.

No ambiguity in constitution

Legal counsel for the unsuspended officials, Advocate Sinclair Nhlapo (SC), told the Labour Court that there was no room for ambiguity when it came to union procedures such as the suspension of members. He said Numsa's constitution was clear about how the union should conduct such functions.

"We can't be simplistic about it and say the members of the unions will not read the constitution when they join. Section 95 of the Labour Relations Act, which talks about requirements for the registration of trade unions, and the Numsa constitution is phrased such that it does not provide for a precautionary suspension which occurs without a hearing," said Nhlapo.

Nhlapo said if the text of the Numsa constitution is given proper consideration, Numsa was intentional about preserving members' right to the freedom of association as understood in the South African Constitution as well as the Labour Relations Act (LRA). 

"There is no error in how they have phrased this constitution. The reading gives you the disciplinary procedure for national and regional office bearers. It gives you the appeal procedure.  The fact that precautionary suspension does not occur in the Numsa constitution because members wanted a provision that was consistent with the Labour Relations Act to ensure that they protect the right to freedom of association," Nhlapo said.

He said the parties could not ignore the LRA's reverence for freedom of association and due process. "It cannot be that the central committee can be the suspending body and the appeals body," he said.   

Fin24 noted the presence of the South African Federation of Trade Unions (Saftu) general-secretary Zwelinzima Vavi in the virtual hearing.