SUMMARY:  The Association of Mineworkers and Construction Union (AMCU) is appealing a Labour Court judgment on the interpretation of its constitution in relation to the eligibility of its president to have been re-elected to office in September 2019.  The appeal focuses on the fact that the court erred in recognising that AMCU’s constitution allows sitting office-bearers to be re-elected.  Due to the fact that the appeal suspends the order pending its outcome, Mr Joseph Mathunjwa remains the President of AMCU.

On 22 November 2021, acting Labour Court judge Mabaso AJ handed down judgment in the case of AMCU’s former deputy president, Nkosikho Joni, relating to his removal from office, his expulsion as member of AMCU, and the eligibility of AMCU President Joseph Mathunjwa and Treasurer-General Jimmy Gama to have been re-elected to office at AMCU’s 2019 National Congress.  The Union has taken legal counsel and has applied for leave to appeal the judgment. 

In his application to the Labour Court, Joni sought that the Court declare unconstitutional and set aside the re-election of AMCU’s President and Treasurer-General as well as the decision of AMCU’s Central Executive Committee (CEC) to remove Joni from the office of deputy president and his expulsion as member of AMCU. Joni also sought a declaration that AMCU has failed to carry out its functions in terms of its constitution and that AMCU be placed under administration. The matter was heard on 25 May 2021.

In his judgment, Judge Mabaso upheld Joni’s expulsion and removal from office and refused the relief sought by Joni to set aside the Treasurer-General’s election and to place AMCU under administration. However, Judge Mabaso ordered that the re-election of the AMCU President on 20 September 2019 was not in accordance with AMCU’s constitution and the Labour Relations Act (LRA).  

“This simply means that Mr Joni remains out of AMCU and he has no further recourse in law.  AMCU has taken legal counsel and we have applied for leave to appeal the judgment in relation to its interpretation of AMCU’s constitution and the eligibility of our President to have been re-elected to office on 20 September 2019”, said AMCU’s head of organisational development, Krister Janse van Rensburg.  “We believe our grounds for appeal are strong and include the fact that the learned judge erred in interpreting our constitution and the criteria set for the re-election of office-bearers”, he said.  

The application focuses on inter alia the eligibility of the AMCU President to have been re-elected to office in September 2019 and the jurisdiction of the Labour Court to have made a determination in this regard in light of Joni’s removal from office and expulsion as a member of AMCU.  

“Just like any democratic association, trade unions have the right to determine their own criteria for election of office-bearers in terms of the Labour Relations Act”, said Janse van Rensburg.  “In AMCU, office-bearers who are retrenched during their term of office, are allowed to remain in office and also to be eligible for re-election by their constituency”, he said.  “Both Mr Mathunjwa and Mr Gama were retrenched while they were already serving as fulltime office-bearers, and they were subsequently re-elected in terms of our constitution and according to the democratic will of our members”, he added.

AMCU’s constitution clearly stipulates that a member in good standing can be elected to serve as an office-bearer, and the definition of a member in good standing explicitly includes those already serving as office-bearers.  

“In the simplest terms, this means that members who already hold office in the Union are eligible to be re-elected as office-bearers”, said Janse van Rensburg.  “We respectfully submit that the learned judge erred in interpreting our constitution in this regard”, he added.  “We are confident that our application is crisp, succinct and to the point, and we trust that the court will grant us leave to appeal”, Janse van Rensburg said.

The application for leave to appeal served and filed today suspends the operation of the order pending its outcome.