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/BH

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NUMBER: 21679/04

JUDGMENT DELIVERED:

IN THE MATTER BETWEEN:

JAMES MOKGATA & 58 OTHERS PLAINTIFFS

AND

FOOD & ALLIED WORKERS UNION DEFENDANT

JUDGMENT

MOTATA, J

[1] The plaintiffs who number 59 and members of the defendant sue the defendant for a sum of R205 554,10 for fees paid to their attorneys. The plaintiffs aver that in terms of clauses 3.3 and 3.9 of the defendant’s constitution the defendant had repudiated its obligations towards the plaintiffs in respect of providing legal assistance for their matter, which served before the labour court. The defendant denied this repudiation.

[2] The defendant filed a special plea averring that this court does not have jurisdiction in that the defendant’s place of business and essential control are situated in Cape Town within the jurisdiction of the Cape of Good Hope Provincial Division. When the matter came before trial the defendant did not persist in its special plea.

[3] At the commencement of the trial the parties by agreement applied that the issue of liability and quantum be separated and that the matter only proceed as to the issue of liability of the defendant. The application was granted.

[4] The clauses, which are central in this trial, read as follows:

“3.3 To promote the interest of members and all workers;

to regulate relations between members and their employers and protect and further the interest of members in relation to their employers; and to negotiate and enter into collective agreements between members and their employers in relation to their employment.

4. …

5. …

6. …

7. …

8. …

9. To provide legal assistance to members and/or officials where it deems it in the interest of the union to do so.”

[5] The plaintiffs were previously employed by the South African Breweries and were retrenched on 30 June 1997. The plaintiffs were paid-up members of the defendant. Various meetings were held at the South African Breweries plant in Rosslyn which were attended by a member of the union who worked at the branch of the defendant in Pretoria. The plaintiffs were retrenched with a severance package as follows:

“The severance package will be implemented …, namely three weeks pay per each completed year of service plus the age related factor, in accordance with the formula which we propose.”

[6] During June a dispute was declared on the severance package and the defendant referred the dispute to the Commission for Consideration, Mediation and Abitration (“CCMA”). The South African Breweries were, however, not happy with that route and preferred a private mediation through IMSSA which the union did not agree to. The matter, needles to say, ended up in the Labour Court of South Africa.

[7] However, one should mention that at the CCMA the plaintiffs were represented by a member of the defendant from the Pretoria office.

[8] When the matter was referred to the Labour Court the defendant through its member drew up the necessary pleadings which served before the Labour Court.

[9] During 25-26 July 1998 and at Johannesburg the defendant had a congress and the legal officers placed before the congress the report containing various matters which it had taken to court in respect of the members of the defendant who had disputes with their employers. In some of the matters they were referred to attorneys by the union to handle on behalf of the members of the defendant. This matter was noted in the report as matter 61 and the official handling the matter being Mr Kutu and an annotation that: “pre-trial conference minutes to be completed and filed with court. Thereafter the matter can be set down for trial.”

[10] Mr James Mokgata the first plaintiff testified on behalf of the other 58 plaintiffs and his version was that there was a delay by the defendant in finalising the matter. When he approached the branch of the defendant they were informed by an administrator Zanele that the matter was no longer in the region and it was with the National Office. At the National Office the matter was handled by Sunky Komape who was with the National Office. The plaintiffs took a resolution to explore other evidence and approach their present attorneys. They had arranged with the present attorneys that each member would pay R150-00 and the whole amount had to be R10 000-00. However, when they were still represented by the defendant they did not pay towards prosecution of their case.

[11] The Labour Court found in their favour.

[12] The Labour Court ordered the South African Breweries to:

“1. The respondent is ordered to pay compensation in an amount equivalent to 3 ½ months remuneration to each of the applicants properly on record.

2. Interest is to run at the prescribed rate from the date of the judgement until date of payment.

3. The respondent is to pay the costs of the application excluding the reserved costs.”

[13] The attorneys for the plaintiffs compiled a fees and disbursements bill of costs which were due to them as between attorney and own clients, in terms of a contingency agreement. This bill of costs totalled R354 935,08 and their bill of costs as between party and party amounted to R149 380,98 which was set-off against R354 935,08 leaving a balance of R205 554,10.

[14] Whilst the matter was handled by the plaintiffs’ present attorneys correspondence was exchanged between the attorneys and the defendant. Amongst the documents required by the present attorneys the plaintiffs’ attorneys informed the defendant that they were acting on behalf of the plaintiffs are dissatisfied with the service that you are rendering and that they are of the opinion that FAWU is not looking after their interest.” The letter went on to say: “The defendant increased their fees of the plaintiffs as retrenched workers.” The defendant responded that they wanted to meet with the plaintiffs to find a solution to the problems raised in the letter by the plaintiffs’ attorneys. In the numerous correspondence exchanged it was suggested by the plaintiffs’ attorneys that it was unfair for the plaintiffs to shoulder the fees which were due to their attorneys whilst they paid membership fees to the defendant.

[15] The defendant had through the assistant general secretary written to the plaintiffs’ attorneys advising them that: “We also wish to advice you that our union shall not be responsible for payment of any of your fees and disbursements since you are not acting on the instructions from our union on this matter.” The defendant, however, responding to other issues raised was that they would cooperate in finishing all the relevant documents in their possession.

[16] I need to lift a quotation from a letter of 19 January 2000 by the plaintiffs’ attorneys, which was delivered by hand to the plaintiffs:

“FAWU was initially the trade union acting on your behalf and who was mandated to protect your interests.”

Due to internal strive and various other problems FAWU did not carry out their mandate and it has now become clear that they are not prepared and/or in a position to take this matter any further.

We confirm that we have now been instructed to act on your behalf.

We however, had indicated to the representatives that we are only prepared to act in this matter on condition that if the retrenched workers furnished us with the payment of R150-00 to enable us to proceed with this matter.

We are in the process of finalising the pre-trial procedures after which we can apply for a trial date and bring this matter to finality.

We have no doubt that we can reach finality in the foreseeable future and that the only stumbling block at present is the fact that no funds have been forthcoming.” Mokgata pertinently conceded under cross-examination that the fees to the members or the union after they had been retrenched on 30 June 1997. However, the union continued to act on their behalf until they approached their present attorneys of record. They was so because they were frustrated that the defendant could not hold a pre-trial conference with the attorneys for South African Breweries. He was however, under the impression that since the congress on the 25 - 26 of July 1998 had resolved to continue with their matter the union would still pay. To a question that they appointed two counsel, the reason was that the nature of the case required two brains “who was going to pay Van Vuuren – its us.” When asked further that there were no basis in law and in fact that they should hold the defendant liable for fees Mokgata responded thereto by saying the court will decide.”

[17] Mr James Mokgata was the only witness for the plaintiffs. The defendant did not lead evidence but instead applied for absolution from the instance with costs. The question to be decided is whether the defendant repudiated their mandate and if this mandate was a contractual term.

[18] In South African Municipal Workers Union v JADA and Others 2003 (6) SA 294 (W) at page 297G the court explained the diversions of interest:

“Despite it being accorded a personality of its own under section 5(1), however, I have a notional difficulty conceptualising a trade union in the same light, for instance, as a company incorporated under the Companies Act 61 of 1973. Clearly, in the case of the latter, the interest of the company and the persons who hold shares their in a diverge, with the consequence that there is no problem with the shareholders (who themselves may be corporate entities) seeing the corporation in which they hold shares, as if the latter were just another person. The same does not appear to hold true in the case of a trade union. There is a clear identity of interest between a trade union and its members. Members of a trade union are not “members” in the full sense as share holders in a company are “members” of the latter. Trade union members do not merely hold a financial stake in the trade union of which they are members. They had a collective interest which they pursue via the medium of the trade union structure, but not in the same way as members of a company incorporated under the Companies Act.”

[19] The contentions by the plaintiffs that clauses 3.3 and 3.9 place the defendant to provide legal assistance does not appear to be totally correct and a close reading of these two clauses merely state mission statement and not contractual. Repudiation of the contractual term is not analogous to what the plaintiffs’ claim in the present matter. There has been no breach of the terms of the constitution of the defendant.

[20] The defendant did not exhibit a deliberate intention not to assist the plaintiffs. There was a plea to workers in a letter and is it was not accepted by the plaintiffs. The evidence before court does not show that there was a refusal by the defendant to act on behalf of the plaintiffs nor have they repudiated but it is the plaintiffs who refused the further assistance which the defendant wanted to accord them.

[21] It is so that there were delays in this matter but these delays were from the South African Breweries who took too long in filing their pleadings and the defendant only delayed in the final leg of the pleadings where a departure of the legal representative who left the employment of the defendant and hence the file was transferred to the head office. Failure to file a pre-trial minute cannot be a repudiation of its obligation that is the defendant.

[22] In my view the plaintiffs have failed to serve the liability on the part of the defendant for them having removed the matter to their present attorneys without the consent of the defendant. In my view the plaintiffs cannot succeed.

[23] In the circumstances absolution from the instance is granted with costs.

J MOTATA

JUDGE OF THE HIGH COURT

FOR THE APPLICANTS: ADV.

INSTRUCTED BY:

FOR THE RESPONDENT: ADV

INSTRUCTED BY:

DATE HEARD:

DATE OF JUDGMENT: 8 June 2007

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