Food & Allied Workers Union v Ngcobo N O (Ndlela) and Another

Two employees, Mandla Ndlela and Michael Mkhize, were retrenched by Nestlé South Africa (Pty) Ltd following a restructuring. They joined the Food & Allied Workers Union (FAWU), which undertook to represent them in unfair dismissal proceedings before the CCMA and, if unresolved, the Labour Court. Although FAWU represented them at conciliation and obtained certificates of non-resolution, it failed to refer their disputes to the Labour Court within the prescribed 90-day period, failed to apply for condonation, and failed to inform them of these failures timeously. Eventually FAWU withdrew, and the employees sued FAWU in the KwaZulu-Natal High Court for damages for breach of mandate, claiming the compensation they would allegedly have been awarded for unfair dismissal. The High Court upheld their claims and awarded damages. FAWU appealed to the Supreme Court of Appeal.

The appeal and cross-appeal were dismissed, and FAWU was ordered to pay the costs of the appeal.

The case clarifies the contractual liability of trade unions for breach of mandate in representing members, while firmly emphasising the requirement of causation in claims for pure economic loss. It establishes that a plaintiff must show that the loss was not avoidable through available legal remedies such as condonation. The judgment underscores employees’ duty to take reasonable steps to protect their own interests once a mandate is terminated.