Thulani Hlungwani v South African Policing Union and Another

In November 2018, Mr Mpho Kwinika was elected president of the South African Policing Union (SAPU) for a term expiring in November 2022. In March 2019, Kwinika was assaulted by police and arrested on various charges (later withdrawn), with departmental proceedings remaining pending. On 7 July 2020, without prior warning, the union's national office bearers placed Kwinika on special leave. On 9 July 2020, the union's national executive committee (NEC) recalled him as president by majority vote. On 24 July 2020, the NEC expelled Kwinika from union membership, alleging he brought the organization into disrepute and caused division. The applicant, a union member, challenged these decisions as unconstitutional violations of the union's constitution, which required disciplinary procedures and hearings before removal or expulsion. The union failed to file an answering affidavit but raised preliminary points including lack of locus standi, incompetence of relief, and admissibility of a petition.

• Whether a union member has locus standi to challenge decisions taken by union structures against another member for alleged non-compliance with the union's constitution
• Whether the union's decisions to place Kwinika on special leave, recall him as president, and terminate his membership complied with the union's constitutional requirements
• Whether the relief sought (reinstatement of Kwinika) is legally competent where the affected person has not directly challenged the decisions
• The jurisdiction of the Labour Court under section 158(1)(e) of the LRA to adjudicate disputes about non-compliance with a trade union's constitution

The court declared the decisions of 7 July 2020 (placing Kwinika on special leave) and 9 July 2020 (recalling Kwinika as president) unlawful and set them aside. Mr Mpho Kwinika was reinstated as president and as a member of the first respondent. The first respondent was ordered to pay the costs of the proceedings, limited to the costs of one counsel.

A member of a registered trade union has locus standi under section 158(1)(e) of the LRA to challenge decisions taken by union structures against another member for alleged non-compliance with the union's constitution. This is because: (1) union constitutions serve purposes beyond contracts between unions and members—they promote constitutional values of accountability, transparency and openness; (2) each union member has an interest in the lawfulness of actions by union structures and officials; (3) each member stands to be prejudiced if union structures act as if the constitution does not exist; and (4) the lis is between the concerned member and the union arising from the allegation of failure to uphold the constitution which binds all members. Trade unions are strictly bound by their own constitutions and have no powers beyond the four corners of those documents. Decisions taken in breach of a union's constitution are null and void and must be set aside, with affected persons entitled to reinstatement.

The court adopted the trade union slogan 'An injury to one is an injury to all' as apposite in the context of standing to challenge union constitutional violations. The court distinguished the case from Rivaldo and other cases involving constitutional challenges under section 38, noting this case did not involve fundamental rights challenges but nevertheless required consideration of constitutional values given the constitutional protection of trade unions under section 23(4). The court noted that third parties (such as employers) may also have interests in unions complying with their constitutions in certain contexts, as illustrated by the Lufil Packaging case. The court observed that allowing unions to act outside their constitutions at their discretion would undermine core constitutional values.

This judgment establishes important principles regarding trade union constitutional law in South Africa. It adopts a broad approach to locus standi in disputes about union constitutional compliance, recognizing that all union members have an interest in ensuring union structures and officials act lawfully. The judgment reinforces that union constitutions are not merely private contracts but serve public purposes of accountability, transparency and openness as constitutional values. It affirms that unions are strictly bound by their own constitutions and have no powers beyond those documents. The case demonstrates the Labour Court's willingness to robustly enforce union constitutional requirements and to grant effective relief including reinstatement where unions act in flagrant disregard of their own constitutional provisions. It also clarifies the scope of the Labour Court's jurisdiction under section 158(1)(e) of the LRA.