INDEPENDENT NEWSPAPERS
Durban – Workers, who are fighting a legal battle with the Food and Allied Workers Union, have argued that the union’s “warts and all” approach to providing legal services is untenable and flies in the face of the provisions of the Consumer Protection Act (CPA).
This is the essence of the argument that is being raised in a Constitutional Court case to be heard this month.
The workers, Mandla Ndlela, who has since died, and Michael Mkhize sued the union for breach of contract after it failed to take steps to have the pair’s dispute with their employer, Nestlé, referred to the Labour Court.
The Pietermaritzburg High Court ruled in their favour and awarded the pair R100 000 each in damages.
The union appealed to the Supreme Court of Appeal and failed. It has asked the Concourt for leave to appeal.
The high and appeal courts found there had been an inordinate delay by the union in dealing with the cases. They said the union had been “incapable of raising itself from its self-induced inertia” and had failed to take any action for two years.
It was also found that, had the cases been sent to the Labour Court, Ndlela and Mkhize would have been successful in proving that their dismissals had been unfair.
In its heads of argument, the union argued that its officials were not attorneys and its members had to take any form of legal service offered, even if it was shoddy. It also said it would not be in the interests of the union to provide a legal service if it ran the risk of being sued for “poor quality”.
But lawyers for the workers, in their responding papers, said the union’s argument was flawed because the CPA specifically applied to trade unions and its members. They said although the CPA was not in existence when the pair were union members, it applied now and could not be ignored.
“The legislature has determined that trade union members are entitled to expect services will be performed in a manner people are generally entitled to.”
The workers’ lawyers argue that the union wants to be immune from the CPA and to have the “licence to treat members as they wish”.
“Given the importance of the trade union’s role in society, there is no constitutional imperative which would justify members having to accept grossly negligent or deliberate dishonest conduct.”
The lawyers also say it is not in the interests of justice for the Concourt to grant the union leave to appeal as it has not raised any constitutional issues that have not been dealt with in the other appeal. They say almost 10 years have elapsed since the men first sued for damages and there has been no finality.
The Mercury
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