- The judgment clarifies the legal duty unions owe members after accepting representation.
- NUMSA allowed a Labour Court review to lapse even though there were procedures that could have kept it alive.
- The ruling confirms that unions can be held liable when negligent handling of litigation causes financial loss.
NUMSA has been ordered to pay a member R132,000 after the union failed to pursue his Labour Court review to completion.
The High Court in Johannesburg found that when a trade union accepts a mandate to represent a worker, it takes on a legal duty to act with care and diligence. Once representation is accepted, the union cannot simply abandon the case.
The judgment makes it clear that once a union accepts a mandate to represent a worker, it must pursue that litigation with care and diligence.
The case involved the National Union of Metalworkers of South Africa, NUMSA, and its member Sibonakaliso Simon Zwane, whose Labour Court review lapsed after the union failed to take further procedural steps.
Judge SDJ Wilson said the dispute was ultimately about the union’s mandate, not the merits of the dismissal itself.
A 30-year employee dismissed without a hearing
Zwane worked for Eagle Spring Manufacturers for more than three decades and served as a NUMSA shop steward. He was summarily dismissed in May 2016 following allegations that he intimidated employees, threatened the company’s managing director and encouraged workers not to comply with workplace timekeeping rules.
The employer accused him of intimidating employees, threatening the company’s managing director and his son, verbally abusing staff, refusing to obey a supervisor’s instruction, encouraging workers not to clock in or out, and opening confidential medical letters belonging to other employees.
Although Zwane appealed internally, his dismissal was upheld. He then referred the matter to the bargaining council, where arbitration stretched over 18 separate hearing days across three years.
During the arbitration, Eagle Spring offered Zwane compensation equal to 12 months’ salary in settlement of the procedural aspects of the dispute. He rejected the offer because he wanted reinstatement rather than compensation. The arbitrator later ruled that his dismissal was both procedurally and substantively fair.
NUMSA accepted the Labour Court mandate
After the arbitration award, NUMSA brought a review application in the Labour Court on Zwane’s behalf. The review focused on procedural fairness, arguing that he had been dismissed without the consultation required for a union representative and without a proper disciplinary hearing.
The High Court found that once NUMSA accepted that mandate, it assumed a legal obligation to pursue the case faithfully, honestly and with care and diligence.
Judge SDJ Wilson said, “Once NUMSA accepted Zwane’s mandate to prosecute the Labour Court review, it was obliged to carry the mandate out faithfully, honestly and with care and diligence.”
The missing record was not the end of the case
The Labour Court proceedings ran into trouble when the full record of the lengthy arbitration could not be recovered. NUMSA asked the employer to accept a reduced record dealing only with procedural fairness, but the employer insisted on the complete record.
When the filing deadline passed, the employer applied for the review to be deemed withdrawn. NUMSA did not oppose that application.
The High Court held that this was the union’s critical failure. The Labour Court Practice Manual specifically allows parties to approach the Judge President for directions when records are lost, including reconstructing the record or receiving directions on how the review should proceed. NUMSA took neither step.
Judge Wilson found that any diligent mandate-holder would have acted to prevent the review from being deemed withdrawn.
The internal appeal did not cure the unfairness
A key part of the judgment was the court’s assessment of the procedural defects NUMSA sought to challenge. Judge Wilson found that dismissing Zwane without giving him an opportunity to state his case was plainly unfair. He also rejected the arbitrator’s conclusion that the subsequent internal appeal cured that defect.
The judge described the appeal as no more than an ex post facto rationalisation of the earlier decision, finding that it merely repeated the employer’s position instead of providing an independent and genuine opportunity for Zwane to defend himself.
For that reason, the High Court concluded the Labour Court review would probably have succeeded had it been properly pursued.
Unions cannot abandon accepted cases
NUMSA argued that its constitution gives it discretion to decide when legal assistance is appropriate for members. The High Court accepted that a union may refuse to take on a case at the outset, but ruled that this discretion ends once representation has been accepted.
Judge Wilson said NUMSA’s constitution does not entitle it to refuse to carry out a mandate to represent one of its members once that mandate has been accepted.
The court awarded Zwane R132,000, representing the compensation he would probably have recovered for the procedurally unfair dismissal, together with interest and costs.
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