In June 2024, the Constitutional Court issued a judgment in the matter between AFGRI Animal Feeds (A Division of PhilAfrica Foods (Pty) Ltd) v National Union of Metalworkers South Africa and Others, wherein it considered sections 161 and 200 of the Labour Relations Act, 1995 (LRA), as relating to a trade union’s right to represent employees and its legal standing.

This matter concerns erstwhile employees of AFGRI Animal Feeds (a Division of PhilAfrica Foods (Pty) Ltd) (AFGRI), who were dismissed for embarking on an unprotected strike following AFGRI’s refusal to grant the National Union of Metalworkers South Africa (NUMSA) organisational rights (dismissed employees).

NUMSA, acting on behalf of the dismissed employees, referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), and, when the dispute remained unresolved, it was referred to the Labour Court. The statement of claim cited NUMSA as the first applicant. Throughout the proceedings, NUMSA and the dismissed employees were legally represented.

AFGRI raised a preliminary point, objecting to NUMSA’s legal standing on the basis that its constitution limited the eligibility for membership to the trade union to employees working in the metal and related industries, and intrinsically precluded the dismissed employees, who were employed in the animal feeds industry. AFGRI relied on section 161(1)(c) of the LRA, which, in relation to representation by a trade union in the Labour Court, provides that a party may be represented only by an office-bearer or official of that party’s registered trade union.

Labour Court

The Labour Court held that the enquiry regarding the objection was twofold. The first enquiry related to whether NUMSA had the right to refer the matter in its own interest and in the interests of its members. The Labour Court held that, in terms of section 161(1)(c) of the LRA read with sections 200(1)(b) and (c) of the LRA, a trade union may refer a dispute to or represent a dismissed employee in the Labour Court, only if that trade union is registered and the employee who is a party to the dispute is a member of that trade union.

In the second enquiry, the Labour Court considered whether NUMSA had the right to represent the dismissed employees. The Labour Court considered the principle laid out in NUMSA v Lufil Packaging (Isithebe), wherein the Constitutional Court held that NUMSA, as a voluntary association, was bound by its constitution and had no power to act beyond it.

The Labour Court concluded that, since a trade union could act only on behalf of members falling within the scope of its registered constitution, NUMSA’s referral of the dispute was invalid and void from the outset as NUMSA lacked the necessary legal standing to launch the proceedings on behalf of the dismissed employees.

Labour Appeal Court

Dissatisfied with the outcome of the Labour Court, NUMSA approached the Labour Appeal Court (LAC), which overturned the Labour Court’s decision.

On the first enquiry, the LAC found that both NUMSA, acting on behalf, and in the interests, of its members, and the dismissed employees, were represented by their attorney in line with section 161(1)(a) of the LRA. Section 161(1)(c) was not applicable.

In respect of the second enquiry, the LAC relied on its decision in MacDonald’s Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union, and drew a distinction between a trade union’s exercise of organisational rights on behalf of its members, on the one hand; and its representation of employees in an unfair dismissal dispute where the workers have a right to choose a particular trade union to represent them, on the other hand.

The LAC held that the Lufil judgment was not concerned with the trade union’s suitability to represent employees in an unfair dismissal or unfair labour practice dispute, but with the role of the trade union’s constitution in giving effect to organisational rights. In advancing this line of reasoning, the LAC held that a trade union may accept an employee as a member outside the parameters of eligibility set out in its constitution, solely for the purpose of representation in dispute proceedings. This, the LAC found, promotes access to justice and redress to the employees in accordance with sections 23 and 38 of the Constitution and prevailing legislation.   

Constitutional Court

Aggrieved, AFGRI referred the matter to the Constitutional Court.

The Constitutional Court concurred with the LAC’s findings that NUMSA and the dismissed employees, as parties to the proceedings, were entitled to representation by a legal practitioner in terms of section 161(1)(a) of the LRA and thus that the question of representation under section 161(1)(c) did not arise. The issue of NUMSA’s legal standing is governed by section 200 of the LRA.

In assessing whether NUMSA had legal standing in respect of the dismissed employees, the Constitutional Court considered section 95 of the LRA, which deals with the requirement for registration of a trade union, including the requirement to ‘prescribe qualification for, and admission to, membership’. The Constitutional Court held that the consequence of registering a trade union is that it acquires legal personality, with its scope of operation being restricted by its constitution. Therefore, a trade union may perform any act in law as required or permitted by its constitution, and anything done outside of the registered scope would be beyond its powers and null and void.

One may opine that NUMSA, having been the appellant in the Lufil judgment, ought to have known better than to bring an argument that it could admit to membership any workers in any industry. The Constitutional Court rejected this argument, reiterating that when a trade union defines the eligibility for membership in its constitution, it has no power to admit and conclude membership agreements with workers in industries that fall outside its registered scope.

The Constitutional Court held that distinguishing between a trade union’s representation of employees when enforcing organisational rights and representation in an unfair dismissal dispute, was illogical and at odds with the very same principle that a trade union has no power to act beyond those conferred by its constitution.

The Constitutional Court further thwarted the LAC’s approach to interpreting the constitution of a trade union as one of benevolence, aimed at promoting convenience and preservation of rights. To this end, the Constitutional Court held that the dismissed employees had a right to join and be represented by any trade union whose registered scope permitted them (i.e. workers within the animal feeds industry), to be members. This would achieve their sought-after right to access to court.

In conclusion, the Constitutional Court found that the dismissed employees were precluded from becoming members of NUMSA and, accordingly, the union had no legal standing in the Labour Court proceedings involving such employees.

Key takeaways

The Constitutional Court confirmed that a trade union that accepts members who fall outside of its registered scope would be acting beyond its powers, and such conduct will be null and void.

The Court further confirmed that its decision in Lufil extended beyond categorisation for the purposes of pursuing organisational rights and includes representation in any proceedings before any forum, including the Labour Court.

Written by Keshni Naicker, Partner, and Amandla Makhongwana, Senior Associate, Bowmans South Africa