The National Union of Metalworkers of South Africa (Numsa) deliberately held its election and announced its leadership at an interdicted national congress before a crucial Labour Court appeal ruling, rendering that judgment ineffectual. This is according to an affidavit by formerly suspended Numsa official Ruth Ntlokotse. 

Ntlokotse filed a motion of contempt of court to the Labour Court after the union held its congress despite been interdicted just days before it commenced. The largest metal union on the continent continued with the congress after lifting the suspensions of Ntlokotse and other officials.

Ntlokotse said in her affidavit that Numsa ensured that the results of the election were announced on 27 July, the evening before Labour Court Judge Graham Moshoana could rule on Numsa's application for leave to appeal the interdict. The application was subsequently turned down. 

"This was clearly all done to render the outcome of the application for leave to appeal a brutum fulmen (an ineffectual legal judgment)," the affidavit said.

"I further seek an order declaring all that was done from 25 to 28 July 2022 under the guise of the 11th national congress to be null and void ... for want of compliance with this honourable court's order and the constitution of Numsa ... [and] that all the resolutions passed thereat, including nominations and elections, are invalid and of no force and effect," Ntlokotse's affidavit said.

Ntlokotse submitted that this conduct was in contempt of court, rendered the judiciary ineffective, and negated its legitimacy. She said failing to grant her application would send the wrong message to the litigants and members of the public.

Can't say they complied

On 26 July, the Numsa special central committee (SCC) held a meeting, where it resolved to lift the suspensions and remove the Numsa Mpumalanga region from its state of administration. Numsa general-secretary Irvin Jim said Mpumalanga had no delegation to the congress as the region could not form structures for the election of officials and delegates in time. 

Ntlokotse told the Labour Court that the union did not invite her or other formerly suspended members to attend its 11th national congress or make travel and accommodation arrangements for them to do so. She said that the court effectively suspended the continuation of the congress until Numsa complied with its own constitution.

"I submit that the respondents cannot claim that they complied with the court order. This is so in that the disabling feature already identified by his Lordship Justice Moshoana was used as the reason by the credentials committee for excluding the Mpumalanga region.

"It was for the reason of this disabling feature that his Lordship Justice Moshoana stated that the national congress be interdicted until Numsa complies with its own constitution en route the national congress," the founding affidavit said.

She said that despite the court's finding on the suspended officials, Numsa failed to make any flight, transport and accommodation arrangements for 22 of the members who were suspended to attend and participate in the congress.

"In fact, Numsa did not communicate with any of them. The effect of all of this was to exclude such members from attending and participating in the national congress, thus effectively keeping the members on precautionary suspension.

"It is important to mention that the decision not to include them in the travelling arrangements and accommodation was implemented by the special central committee even before the filing of the application for leave to appeal," the affidavit said.

Ntlokotse approached the Labour Court in July and successfully had her suspension and that of other officials who wanted to attend the congress declared invalid. She said the suspensions sought to block her and others from attending and participating in the national congress, where she wanted to contest the position of Numsa president.

The union also sought leave to appeal the ruling of the Labour Court in the middle of the congress week, saying the ruling misinterpreted Numsa's constitution. Moshoana declined the union leave to appeal, saying events had taken over the timing of the judgment and such a judgment would be "academic" in nature.

'Aware of court order'

The affidavit said on the morning of 25 July, Ntlokotse noticed that there was no formal notice issued by the union informing would-be delegates of the cancellation of the national congress. Delegates were already travelling to the national congress the day before its scheduled commencement.

"It is submitted that the above clearly shows that the respondents were aware of the court order. Importantly, that they had a clear intention to commence with the national congress," the affidavit said.

Approached for comment, Numsa spokesperson Phakamile Hlubi-Majola said: "Numsa is focused on resolving motor and auto talks and ensuring the work of the union continues uninterrupted. We will defend the union and its leadership in court. We will not engage in the media at this time."

When asked about the absence of Mpumalanga delegates on the sidelines of the Numsa congress, Numsa president Andrew Chirwa told reporters that no region had an "ordained right" to be at the congress and that each region present complied with the standards of a national congress delegation.