Food and Allied Workers Union v Lungi Rosemary Ngcobo N.O. and Michael Mkhize

In May 2002, Nestlé South Africa dismissed two employees (Mr Mandla Ndlela and Mr Michael Mkhize) after 20 years of service. The employees sought help from the Food and Allied Workers Union (FAWU), which undertook to represent them in their unfair dismissal claims. The Union referred the dispute for conciliation before the CCMA and appeared at a conciliation meeting in June 2002. After conciliation failed, the employees' claims were ripe for referral to the Labour Court within 90 days. The Union told the employees it would refer the matter but failed to do so. The 90-day deadline passed. For nearly a year, Union officials assured the employees their matter was being attended to. In May 2003, the employees discovered through a university law clinic that nothing had been done. The Union then assigned a different official who also failed to apply for condonation. In January 2004, the official unsuccessfully attempted to re-initiate CCMA proceedings. In April 2004, the Union obtained a legal opinion stating the dismissal was not unfair and refused to proceed further. The employees then retained private attorneys who demanded the Union apply for condonation. When the Union failed to respond, the employees sued for damages in August 2004.

• Whether a trade union's constitutional right to determine its own administration (section 23(4)(a) of the Constitution) provides special protection against damages claims arising from failure to properly prosecute members' unfair dismissal claims
• Whether clause 5.11 of the Union's constitution, read with section 23(4)(a) of the Constitution and section 200 of the LRA, implied a term allowing the Union to withdraw from representation at any time without liability
• Whether the Union's obligation under the mandate was merely to refer the dispute to the Labour Court at any time, or to do so within the statutory 90-day period
• Whether the Union breached its contract of mandate with the employees
• Whether the employees' failure to apply for condonation themselves broke the chain of causation

The application for leave to appeal was dismissed with costs.

A trade union's constitutional right under section 23(4)(a) to determine its own administration, programmes and activities does not exempt it from liability in damages when it undertakes to represent members in unfair dismissal claims and fails to do so properly. The right confers organizational and structural autonomy but does not specify immunity from contractual liability. When a trade union agrees to represent a member in an unfair dismissal claim that must be referred to the Labour Court within a statutory time limit, the union's obligation is to refer the claim timeously, not merely to refer it at some point. Failure to refer within the statutory period breaches the contract of mandate, as it transforms the member's right to adjudication into a weaker, conditional right to seek uncertain condonation. A union constitution clause stating that the union will provide legal assistance "where it deems it in the interest of the Union to do so" authorizes the union to decide when to undertake representation, but does not imply a term allowing withdrawal from representation without liability once that undertaking has been given.

The Court noted that the Union's constitution actually anticipated potential negligence by its officials and provided a limited indemnity for shop stewards, officials, office-bearers and committee members from proceedings, costs and expenses incurred through negligence, provided their acts did not constitute misconduct. This provision specified that the Union itself would take responsibility for negligent acts by those acting on its behalf, contrary to the Union's argument for immunity. The Court also commented on the historical context of section 23(4)(a), explaining that it arose from Constitutional Principles XII and XXVIII in response to half a century of racially discriminatory laws that prohibited the majority of South Africans from forming and joining trade unions until 1979. The judgment also briefly addressed the Constitution Seventeenth Amendment Act which took effect six days before argument, conferring jurisdiction on the Constitutional Court to hear non-constitutional matters raising arguable points of law of general public importance, but found it unnecessary to decide whether the amendment applied since the outcome would be the same either way.

This case establishes important boundaries on trade union constitutional rights under section 23(4)(a) of the Constitution. While trade unions enjoy organizational autonomy to determine their own administration, programmes and activities, this constitutional right does not shield them from contractual liability when they undertake to represent members and fail to do so properly. The judgment clarifies that: (1) constitutional organizational autonomy rights do not translate into immunity from damages for breach of mandate; (2) union constitutional provisions must be interpreted in their proper context and cannot be read as blanket exemption clauses; (3) section 200 of the LRA confers capacity and standing, not immunity; and (4) when a union agrees to represent a member in litigation with statutory time limits, the obligation is to comply with those time limits, not merely to eventually get the matter before a court. The case reinforces accountability of trade unions to their members while respecting their constitutional autonomy in deciding whether to take on representation in the first place.