Labor Court in South Africa dismisses contempt of court application against NUMSA

The application sought to have the union’s 11th National Congress be declared null and void and called for the arrest and imprisonment of NUMSA national leaders, Irvin Jim and Andrew Chirwa 

August 25, 2022 by Tanupriya Singh
NUMSA labor court ruling
NUMSA General Secretary Irvin Jim addresses the 11th National Congress (Photo: NUMSA)

Following protracted legal proceedings, the Johannesburg Labor Court on Tuesday, August 23, dismissed the contempt of court application against the National Union of Metalworkers of South Africa (NUMSA). Judge Andre van Niekerk issued the ruling on an urgent application filed by the union’s former second deputy president, Ruth Ntlokotse. 

The matter focused on the circumstances surrounding NUMSA’s 11th National Congress, which was held in Cape Town at the end of July. The Labor Court heard Ntlokotse’s application on August 19, where she alleged that the congress had proceeded in violation of an interdict issued by Judge Graham Moshoana on July 23.

Over a week prior to this interdict ruling, NUMSA had announced on July 13 that Ntlokotse had been suspended pending a fair disciplinary process. During a press conference, General Secretary Irvin Jim stated that the union’s Special Central Committee had determined that Ntlokotse had “undermined the organization and its unity,” and “defined [herself] outside the collective leadership of the NOBs [NUMSA National Office Bearers]…” 

Five members of the National Executive Committee were also suspended.

On July 18, Ntlokotse approached the Labor Court to have her suspension, and that of 30 other NUMSA members, overturned, or have the (then) upcoming National Congress be halted until the nature of the suspensions had been clarified. 

Judge Moshoana ruled in favor of Ntlokotse, declaring the suspensions to be “unconstitutional, invalid, and unenforceable in law.” The ruling also extended to the decision of the NUMSA leadership to place the Mpumalanga Regional Council under ‘administration’, which meant that it would be unable to participate in the National Congress. 

Speaking to SABC News on August 24, Jim stated that the decision regarding Mpumalanga had been “politicized.” He said that the Mpumalanga Regional Council had collapsed (or failed to convene) twice. The absence of a properly constituted regional executive committee which had a mandate would raise a series of issues, Jim explained. 

In the July 23 interdict order, Judge Moshoana ruled that the National Congress would be suspended “until NUMSA complied with its own constitution.”

Threats to trade union democracy

On July 27, NUMSA announced that it would proceed with the National Congress and that the meeting would be officially convened that very day. The union stated that pursuant to Judge Moshoana’s judgement, it had issued a 48-hour notice to convene a Special Central Committee meeting on July 26 to take the necessary steps to comply with the court’s order. 

NUMSA claimed that postponing the congress was not a viable option given that many delegates had already flown into Cape Town to attend the meeting, and the total wasted costs would amount to around R39 million (USD 2.29 million). The statement added that the Central Committee had taken “due cognisance of the adverse impact the cancellation of Congress would have on NUMSA as a democratic institution.” The union’s leadership must be elected by workers every four years. NUMSA was unable to convene a congress (and elections) in 2021 due to COVID-19 related restrictions. 

The statement further noted that “Whilst the Special Central Committee resolved to lodge an appeal against the judgement of the Honourable [Justice] Moshoana …it nevertheless also resolved that it will be prudent to take all steps possible to ensure that NUMSA acts within the “four corners of its constitution” and in accordance with the content of the judgement.”

The committee adopted various resolutions to address the issues, including the absence of the term “precautionary suspension” in the Constitution, which had resulted in the Labor Court overturning the suspensions. The committee also decided that no suspensions would be reimposed, and that the previously suspended individuals, including Ntlokotse, would be permitted to attend the congress and exercise their right to vote and to be nominated and elected for office (all without prejudice to NUMSA proceeding with the appropriate disciplinary action). 

A credentials committee was also set up to issue accreditations, in line with the court’s ruling. 

The union reiterated that the congress was able to proceed in full compliance with the court order. It added that this was being done “irrespective of the fact that the judgement had been suspended as a consequence of the filing of NUMSA’s application for leave to appeal against said judgement.”

The statement also raised concerns about “rogue individuals” with “their anti-worker, NUMSA-bashing program” acting in “pursuit of an external agenda in collaboration with forces who have been operating in the shadows.” It accused such forces of attacking and attempting to “weaken and fragment the unity within NUMSA” with the objective of eliminating those in the leadership they regarded as “constituting a threat to their counter revolutionary agendas.” 

Following the first day of the congress, NUMSA announced that a new leadership was elected, and that all candidates had been nominated unopposed by all regions. 

NUMSA’s urgent leave to appeal was heard by Judge Moshoana on the evening of July 27 and rejected the next day. NUMSA responded by saying that it would file a leave to appeal application and petition directly to the Labor Appeals Court for direct access. It sought to set aside the whole judgement and order handed down by Justice Moshoana. 

In another statement dated July 30, NUMSA said that the congress had been able to proceed as it had taken the steps to rectify the constitutional defects outlined in Judge Moshoana’s ruling. It added that the leave to appeal was a “separate issue about NUMSA disagreeing with the court order and wanting to challenge the precedent it is currently setting.” However, “until such time is set aside on appeal, NUMSA will continue to comply with the court order…” 

The union also added that despite the suspensions being lifted, none of the regional office-bearers or Ntlokotse participated in the elections. 

Battle in the courts

In the meantime, Ntlokotse filed an urgent application asking the Labor Court to declare the congress null and void, including the elections of the office-bearers and all the decisions that had been taken. The application went further, calling upon the court to issue a warrant for the arrest of NUMSA General Secretary Irvin Jim and President Andrew Chirwa on charges of contempt of court, and called for their imprisonment for 30 days. 

After an initial postponement, the hearing was held on August 19. 

Finally, on August 23, Judge Van Niekerk announced the verdict dismissing the contempt of court application. He declared: “In so far as the applicant contends that the resolutions adopted by the special meeting of central committee and the reconvening of the national congress on 27 July 2022, all constitute breaches of the court order and thus acts of contempt of court, it does not seem to me that a decision to taken to postpone the commencement of the national congress until such times as the union fully complied with its constitution, constitutes a breach of the order.”

“On the contrary, it is indicative of compliance with the order,”Judge Van Niekerk said, adding, “I am not persuaded that the applicant has established a breach of the order beyond a reasonable doubt.”

NUMSA welcomed the ruling, stating, “We are vindicated by this judgement. We will continue to defend the union and its decisions.”