THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 289/10

In the matter between:

CONFEDERATION OF SOUTH AFRICAN
WORKERS’ UNIONS (CONSAWU)
Appellant

and

NEDLAC
First Respondent
THE MINISTER OF LABOUR
Second Respondent
COSATU
Third Respondent
NACTU
Fourth Respondent
FEDUSA
Fifth Respondent
BUSINESS SOUTH AFRICA
Sixth Respondent

Neutral citation:
CONSAWU v Nedlac (289/10) [2011] ZASCA 57
(31 MARCH 2011)

Coram:
STREICHER, NUGENT, SNYDERS, BOSIELO and
MAJIEDT JJA

Heard:
24 FEBRUARY 2011

Delivered:
31 MARCH 2011

Summary:
Labour Law – National Economic Development and Labour
Council – validity of clauses 9.3 to 9.6 of its constitution –
meaning of ‘to provide for’ in section 4(d) of the National
Economic Development and Labour Council Act, 35 of 1994.

_____________________________________________________________________

ORDER
_____________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Msimeki J sitting
as court of first instance)

The appeal is dismissed with costs that include the costs of two counsel.

_____________________________________________________________________

JUDGMENT
_____________________________________________________________________

NUGENT and MAJIEDT JJA (SNYDERS and BOSIELO JJA concurring)

[1] The National Economic Development and Labour Council –
NEDLAC – serves as a forum for various constituencies to find
consensus on matters of economic and labour policy. The principal
constituencies are business, labour and the state. Business is represented
by Business Unity South Africa – a federation of employer and business
organisations. Three trade union federations – Cosatu, Nactu and Fedusa
– represent labour (we will refer to them as the founding federations).

[2] The
Confederation
of
South
African
Workers’
Unions
(CONSAWU) applied to NEDLAC to gain entry to its ranks but its
application was declined. CONSAWU applied to the North Gauteng High
Court for relief that we come to presently. The application was dismissed
by Msimeki J and CONSAWU now appeals with the leave of that court.

[3] The application cited NEDLAC, the Minister of Labour, Business
Unity South Africa, and the founding federations as respondents. At that
stage CONSAWU claimed declarations directed to the constitutional
validity of the Act and to the validity of parts of NEDLAC’s constitution.
NEDLAC and the Minister opposed the application. When CONSAWU
later withdrew its claims directed at the constitutional validity of the Act
the Minister ceased to have an interest in the matter and CONSAWU
withdrew the application so far as it concerned the Minister. The
founding federations did not oppose the application, no doubt because
they associated themselves with NEDLAC’s opposition. Business Unity
South Africa also did not oppose the application. In an affidavit that was
filed on its behalf later in the proceedings it explained that it had not
opposed because the relief that was then sought did not affect it directly.
Only CONSAWU and NEDLAC are thus parties to this appeal.

[4] The National Economic Development and Labour Council Act 35
of 1994 purports1 to establish NEDLAC as a juristic body having a
constitution that would be adopted at an ‘inaugural meeting’. The
meeting was to be convened by the Minister of Labour. Present at that
meeting were to be representatives of the employer and employee
interests that were then represented on the National Manpower
Commission2 (which would then cease to exist) and the National
Economic Forum, representatives of the state, and representatives of
community and development interests. Their duty at the meeting was,

1The Act seems to us to be conceptually flawed. The Act purports both to create NEDLAC and to
provide for its creation by the adoption of a constitution by its founding members. In that way
NEDLAC purports to come into existence by pulling itself up by its bootstraps. Despite its express
language we think that the effect of the Act was not to create NEDLAC but instead to decree that
NEDLAC should be created in the manner and form provided for in the Act.
2Established by s 2A of the Labour Relations Act 28 of 1956.

amongst other things, to ‘adopt a constitution for [NEDLAC]’.3 The
meeting was duly held and a constitution was adopted.

[5] In keeping with the provisions of the Act the constitution
structured NEDLAC as a corporate body that would have an executive
council (which would be its governing body) and four chambers (each
having a specialized function). The members of NEDLAC would be
representatives of each of four constituencies – organised business,
organised labour, the state, and organisations of community and
development interests – nominated by the constituency concerned and
appointed by the Minister to the executive council and the four chambers.
The executive council would comprise an equal number of
representatives (not exceeding 18) nominated by each of the
constituencies. The chambers would each comprise an equal number of
representatives (not exceeding six) nominated by organised business,
organised labour and the state, and such number of representatives of
community and development interests as the executive council would
determine. As it turns out, those last interests are represented on only one
of the chambers. For convenience we deal hereafter with only two of the
constituencies – organised business and organised labour.

[6] Business was represented at the inaugural meeting by Business
South Africa.4 Its representatives became the initial members of the
business constituency on the various structures of NEDLAC. Labour was
represented at the meeting by the founding federations.5 Representatives

3Section 9(6).
4NAFCOC was later admitted and the two organisations subsequently amalgamated to form Business
Unity South Africa.
5Fedusa was then known as Fedsal.

of each federation, in proportion to their respective paid-up membership,
became the initial members representing organised labour.

[7] Clauses 9.3 – 9.6 deal with entry to membership of NEDLAC after
the inaugural meeting. They provide as follows:
‘9.3
Applications for admission to membership by organised business, organised
labour and the State after the inaugural meeting shall be made to the secretariat, in
writing, in the form required by the executive council. Such applications shall be
considered according to the process outlined in 9.4 – 9.6 below.
9.4
The secretariat on receiving such an application, shall submit such application
to the convenor of the affected constituency on the executive council.
9.5
The convenor shall, within one (1) month of receipt of an application from the
secretariat, convene a meeting within the affected constituency to consider the
application. This shall be done in terms of the procedures and criteria determined by
each constituency.
9.6
In the event that members of the affected constituency decide to approve a
nomination, then that nomination shall be forwarded to the Minister who shall appoint
the representatives to the executive council and/or chambers.’

[8] It is apparent from the culmination of the process described by
those clauses that clause 9.3 contemplates applications being made to
NEDLAC for approval of nominations for appointment to membership of
the various structures of NEDLAC. Once such an application is made it
must be referred by NEDLAC to the convenor of the constituency
concerned. A meeting of the constituency will then be called to consider
the application. The application will then be considered in accordance
with procedures and criteria that the constituency has determined for
deciding such applications (clause 9.5). Thus the effect of clause 9.5 is to
appoint each constituency as the gate-keeper to the appointment of
members to represent that constituency on the structures of NEDLAC. At
present Business Unity South Africa is the gate-keeper for organised

business and for organised labour the gate-keepers are the founding
federations. The dispute in this matter centres on that clause because the
founding federations closed the gate to CONSAWU.

[9] In August 2003 CONSAWU wrote a letter to the Executive
Director of NEDLAC in which it made ‘application for membership of
NEDLAC’. We have pointed out that the members of NEDLAC are
representatives of the various organisations and not the organisations
themselves so in that respect the language was not strictly correct but that
is of no consequence. The application was referred to the convenor of the
labour constituency in accordance with clause 9.4 and further information
was sought from CONSAWU.

[10] In July 2004 the convenor of the labour constituency replied to
CONSAWU. He told CONSAWU that the ‘criteria that had been
developed by the founding federations to the labour caucus’ for
‘membership of the organized labour constituency’ was that a federation
should represent at least 300 000 employed workers. It said that on the
information that CONSAWU had provided it represented only 226 148
employed workers. That fell below the established threshold and on that
basis, it was told, its ‘application for membership’ was declined.6
Correspondence ensued that culminated in a letter from CONSAWU’s
attorneys advising that CONSAWU ‘had no option but to turn to the
Court for the necessary relief.’ It then brought the application that is the
subject of this appeal.

6The convenor of the labour constituency said in the answering affidavit filed on behalf of NEDLAC
that the application was neither granted nor refused but placed on hold until such time as CONSAWU
demonstrated that it had the threshold membership.

[11] There has been some vacillation by CONSAWU as to the nature of
its case. The case that it first advanced in its founding affidavit was
amended in the course of the proceedings so substantially as to constitute
a new case altogether. We nonetheless find it necessary to deal briefly
with the case that it first advanced.

[12] On the case as it was first advanced it was not in issue that the Act
requires each constituency to set the criteria for entry to membership of
that constituency on NEDLAC. That was precisely CONSAWU’s
complaint. It said that because the Act required each constituency to
determine its own criteria for entry to NEDLAC it offended various
provisions of the Bill of Rights and it sought declarations to that effect.7

[13] That case was later abandoned. New relief was claimed in an
amendment to the notice of motion that withdrew all the claims that had
been made and substituted them with altogether different claims. The
constitutional validity of the Act was no longer placed in issue and
CONSAWU withdrew its application against the Minister. CONSAWU
filed what it called a ‘supplementary’ founding affidavit in support of the
new relief that was sought. That is the case that is now before us.

[14] The case that CONSAWU now advances is quite the opposite of
the case that it initially advanced. Far from the Act requiring each
constituency to be its own gate-keeper for entry to NEDLAC – which is
what CONSAWU said initially – it now says that the Act prohibits it. The
prohibition is said to be found in s 4(b) and s 4(d) of the Act and it
claimed an order declaring clause 9 to be in conflict with those sections.
It also claimed an order that NEDLAC ‘effects compliance with the

7A subsidiary claim was advanced should its main claim fail but that is not material.

provisions of section 4(b) and section 4(d) of the Act’ within a stipulated
time. Significantly, it did not specify what will constitute compliance.

[15] Its case is founded upon two submissions that are advanced, it
seems, to buttress one another. We turn to those arguments presently but
for the moment it is convenient to summarise what its case comes down
to. CONSAWU says that the Act does not permit a constituency to be the
gate-keeper to its own constituency on NEDLAC. What the Act requires
is that the criteria for entry to each constituency must be stated expressly
in the constitution with the consequence that they must be determined by
NEDLAC itself. By that it hopes to escape being beholden to the
founding federations and to be able to appeal to the other constituencies
on NEDLAC.8

[16] That turnabout in its stance, says the General Secretary of
CONSAWU in his supplementary affidavit, was brought about by advice
that it received from counsel who had replaced its earlier counsel.9
Although it is placed at the door of the ingenuity of counsel we still find
it remarkable that a substantial labour federation should be so fickle on
such a fundamental feature of the institution that it wishes to join.

[17] Nonetheless, that led to considerable debate before us as to whether
the Act indeed requires NEDLAC itself to determine who might or might
not be admitted to represent a constituency, or whether it is competent for
that to be decided by the constituency itself. In our view one needs only
to know the nature of NEDLAC as it is described in the affidavits that it

8Amendments to the constitution are made by the executive council and require the support of two
thirds of each constituency represented on the executive council.
9Who is not necessarily counsel who argued the matter before us.

filed to know that the arguments advanced by CONSAWU cannot be
correct.

[18] NEDLAC is not a forum for settling wages and conditions of
employment, in which employers and employees might each wish to
confront a friendly face. We pointed out earlier that NEDLAC serves as a
forum for attempting to reach tripartite consensus on national economic
and labour policy. The interest that each constituency has in the
composition of the other in those circumstances is only to ensure that it
properly represents the most influential voice that has been chosen by that
other constituency. It is naturally not for one constituency to decide for
the other which voice that might be. To leave out in the cold a voice that
any particular constituency has chosen would undermine what NEDLAC
is all about. There would be no point at all in one constituency talking to
a voice of its own choosing. Nor would there be any point in talking to
organisations which have such disparate interests that they are bickering
amongst themselves. If that were to occur then the constituencies might
just as well each be talking to themselves. The interest of each lies in
confronting the most influential and cohesive voice of the other and that
must necessarily be one that has been chosen by the particular
constituency.

[19] NEDLAC and all its founders – Business Unity South Africa,10 the
founding federations, and the state – have made it perfectly clear on the
papers before us that that was the principle upon which they founded
NEDLAC. Indeed, the ministry that was responsible for the Act entered

10In an affidavit that was filed by Business Unity South Africa when CONSAWU altered its case it
associated itself with what NEDLAC had said concerning the functioning of NEDLAC and in
particular the deponent confirmed ‘that it is an important feature of the composition of NEDLAC that
each of the constituencies should itself be able to determine the criteria for its membership in order ...
that it should be in a position to participate effectively in the business of NEDLAC’.

this case at the outset to defend the constitutionality of that principle
when its presence in the Act was attacked. We would require
considerable persuasion that although all those responsible for founding
NEDLAC were of one view parliament enacted the legislation with
something else in mind. But CONSAWU says that parliament indeed had
something else in mind and we turn to the grounds upon which it says
that.

[20] We have pointed out that the Act called upon the representatives of
the constituencies at what was called the ‘inaugural meeting’ to adopt a
constitution for NEDLAC. Section 4 required the constitution that they
were to adopt to ‘provide for’ various things. The two subsections that are
now in issue required it to provide for the following:
‘(b)
the manner in which organized labour may nominate persons for appointment
as members and the manner in which members may be removed.
(d)
the criteria by which and manner in which organized labour shall admit
federations of trade unions.’

[21] So far as organised business is concerned those subsections are
replicated in ss 4(a) and 4(c). It was because of the impact that the case
might have on those equivalent provisions that an affidavit was filed on
behalf of Business Unity South Africa in which it aligned itself with what
NEDLAC had said.11 We deal hereafter only with the provisions so far as
they relate to organised labour but it applies as much to organised
business.

[22] CONSAWU’s case rests on two submissions. For its first
submission it refers us to the definition of organised labour in the Act,

11See footnote 10.

which means the founding federations and ‘any association that is
admitted thereafter’12 It says that s 4(d) requires the constitution to
provide for the manner in which and the criteria by which trade union
federations are to be admitted to ‘organised labour’. It says that s 4(b), on
the other hand, requires the constitution to provide also for the manner in
which organised labour may nominate persons for appointment as
members of NEDLAC. It says that clause 9 of the constitution deals only
with the manner in which organised labour may nominate persons for
membership of NEDLAC. It does not provide for the manner in which
and criteria by which federations might be admitted to ‘organised labour’
and in that respect it is deficient.

[23] Its case is sought to be buttressed by its second submission. That
submission, as we understand it, is that the effect of s 4(d) is to empower
NEDLAC to set the criteria for admission to ‘organised labour’. By
providing in clause 9.5 that those criteria are to be determined by the
labour constituency NEDLAC has unlawfully delegated its authority.

[24] When those two submissions are taken together the case that
emerges comes down to this: CONSAWU says that NEDLAC must state
in the constitution itself what the criteria are for admission of a federation
to ‘organised labour’ so as to comply with s 4(d). It may not permit those
criteria to be set by the constituency itself – as it has purported to do in
clause 9.5 – because that would be an unlawful delegation of its power to
determine those criteria. Needless to say, the second submission
contradicts the first and we deal with it immediately.

12“Organised labour” means the federations of trade unions that are the founding parties of [NEDLAC]
and any association that is admitted thereafter’.

[25] The second submission rests on the supposition that clause 4(d)
confers power on NEDLAC to determine the criteria for admission to
‘organised labour’ and that is not correct. The section does not purport to
confer any powers on NEDLAC at all. Indeed, we have considerable
doubt that NEDLAC even existed until the constitution was adopted.13
Clause 4(d) does no more than to require that the constitution that was to
be adopted must make provision for the relevant criteria. So far as clause
9.5 empowers the labour constituency to set those criteria the labour
constituency is not exercising delegated powers when it does so. It is
exercising original powers that emanate from the constitution. The
submission has no merit but it sows the seed for the destruction of the
other submission.

[26] The submission that we have disposed of correctly identifies the
criteria that are referred to in clause 9.5 as being the criteria that are
required to be provided for by s 4(d). The very foundation of that
submission was that clause 9.5 purports to delegate to the labour
constituency the power to set the criteria referred to in s 4(d). If that is so
it is difficult to see how the first submission can be sustained.
CONSAWU’s argument becomes then no more than a matter of form so
far as it says that the criteria themselves must be stated in the constitution.
Whether the criteria are to be found in the constitution itself, or whether
they are to be found in the minute book of the constituency, is a question
of where they are located and not whether they have been provided for.
Quite clearly they have been provided for. It was precisely because they
have been provided for that CONSAWU found itself being stopped at the
gate.

13See footnote 1.

[27] The fallacy in the submission lies in its argument that clause 9.5
provides only for the manner in which representatives for membership of
NEDLAC are nominated, and does not deal with the manner in which and
criteria by which new federations might become included in ‘organised
labour’. ‘Organised labour’ is not a corporate entity or organisation of
some kind to which one might apply for membership. The definition is
merely descriptive of the group of federations that are represented on
NEDLAC. Representation on NEDLAC and inclusion amongst that
group go hand in hand.

[28] It is true that clause 9 provides the process by which nominations
are made for membership of NEDLAC. Whatever one might make of
clause 9.3, which initiates the process, its culmination in nominations
being approved or rejected makes it clear that that is so. But in order to
have its representative appointed to NEDLAC the nominator must
obviously be an organisation that is entitled to representation. The
process of deciding whether a nomination should be approved necessarily
calls for the decision-maker to determine whether the nominator qualifies.
If the nominator does qualify, and its nomination is approved, then by
that fact alone the nominator becomes included in the group that is
described as ‘organised labour’. To suggest that two distinct processes
must be provided for and that both decisions may not be made in the
course of a single process is pedantry.

[29] The hurdle that was put up to that construction of clause 9 was that
clause 9.3 contemplates applications being made by ‘organised labour’. It
was argued that that means only federations that are already included
amongst ‘organised labour’. On that construction clause 9.3 leaves no
room for federations that are not yet included amongst ‘organised labour’

to make an application, which, so it is argued, shows that the process is
not one for admission to ‘organised labour’. No doubt the logic is sound.
But where the broad scheme of the enterprise is clear we are not moved
by reliance upon what are clearly a few inapt words here and there in a
document that is replete with imprecision. In our view the inclusion of
clause 9.5 places it beyond dispute that the process incorporates the
requirements of both s 4(b) and s (4)(d).

[30] In our view both submissions fail and the application was correctly
dismissed. The appeal should be dismissed with costs that include the
costs of two counsel.

___________________
R W NUGENT
JUDGE OF APPEAL

___________________
S A MAJIEDT
JUDGE OF APPEAL

STREICHER JA:

[31] I disagree with my colleagues Nugent and Majiedt JJA that the
appeal should be dismissed. In my view it should succeed.

[32] The
Confederation
of
South
African
Workers’
Unions
(‘Consawu’), the appellant, applied to the North Gauteng High Court
(Pretoria) for an order declaring that the Constitution of the National
Economic Development and Labour Council (Nedlac), the first

respondent, does not comply with the requirements of s 4(d) of the
National Economic Development and Labour Council Act 35 of 1994
(the Act). The court below dismissed the application but granted the
appellant leave to appeal to this court.

[33] Nedlac is a juristic person established by the Act. It is governed by
an executive council and in addition consists of four chambers namely the
public finance and monetary policy chamber, the trade and industry
chamber, the labour market chamber and the development chamber (s 2).
The council consists of members who represent organised business,
members who represent organised labour, members who represent
organised community interests and members who represent the State
(s 3(1)). The members representing organised business and organised
labour are appointed by the Minister of Labour from persons nominated
by the relevant constituency (s 3(2) and (3)). The members representing
the organised community interests are appointed by the Minister without
Portfolio in the Office of the President and from persons nominated by
that constituency (s 3(4)) and the members representing the State are
appointed by the President (s 3(6)).

[34] In terms of s 1 of the Act ‘organised business’ means business
represented by those employer and business associations and federations
of such associations that are the founding parties of Nedlac and any
association that is admitted thereafter. ‘Organised labour’ means the
federations of trade unions that are the founding parties of Nedlac and
any association that is admitted thereafter. Cosatu, Fedsal (now Fedusa)
and Nactu, three federations of trade unions, were founding parties of
Nedlac and, at present constitute ‘organised labour’ as defined in the Act.

[35] From the aforegoing it is clear that in terms of the Act there are
four constituencies each of which is represented on the council.
Membership of a constituency should therefore not be equated with
membership of the council. Whereas membership of the council is
provided for in the Act admission to a constituency is in terms of s 4(d) of
the Act to be provided for in the constitution of Nedlac. The section
reads: ‘Subject to the provisions of this Act, the constitution of the
Council shall provide for … the criteria by which and manner in which
organised labour shall admit federations of trade unions’.

[36] Consawu applied for admission to the labour constituency of
Nedlac but was advised by Mr Ebrahim Patel, the convenor of the
constituency, that its membership did not meet the threshold of 300 000
members established by the constituency. According to the evidence
presented by the respondents the members of the labour constituency
initially agreed on a threshold of 200 000 members for admission to the
constituency. The threshold was subsequently increased, first to 250 000
and thereafter to 300 000. No minutes recording those increases could be
located. According to Patel discussions in the constituency take place
informally.

[37] Consawu did indeed not have 300 000 members. Nedlac contends
that the threshold was established in terms of clause 9(5) of its
constitution which, so it submits, provides that admissions to a
constituency should be done in terms of criteria determined by the
relevant constituency. The appellant on the other hand contends that
clause 9(5) deals with membership of the executive council of Nedlac and
not with membership of the labour constituency. In the alternative the
appellant contends that, in so far as it may be held that clause 9(5) deals

with admission to the labour constituency, it is contrary to s 4(d) of the
Act and therefore invalid. In order to understand the appellant’s
submissions it is necessary to quote clauses 9.1 to 9.6 of the Nedlac
Constitution. The clauses read:
‘9.
ADMISSION OF MEMBERS
9.1
The State, organised business and organised labour shall nominate not more than 18
representatives as members of the executive council and not more than six representatives of
each chamber.
9.2
Unless otherwise agreed within each constituency, representation at the inaugural
meeting shall be determined as follows:

9.2.1
for organised business, by Business South Africa;
9.2.2
for the State, by the President of the Republic of South Africa;
9.2.3
for organised labour, by proportional representation according to paid-up membership
of the founding trade union federations – Cosatu, Fedsal and Nactu;
9.2.4
for the organisations representing community and development interests, by the
Minister without portfolio in consultation with organised business, organised labour and the
Minister.

9.3
Applications for admission to membership by organised business, organised labour
and the State after the inaugural meeting shall be made to the secretariat, in writing, in the
form required by the executive council. Such applications shall be considered according to the
process outlined in 9.4 - 9.6 below.
9.4
the secretariat on receiving such an application, shall submit such application to the
convenor of the affected constituency on the executive council.
9.5
the convenor shall, within one (1) month of receipt of an application from the
secretariat, convene a meeting within the affected constituency to consider the application.
This shall be done in terms of the procedures and criteria determined by each constituency.
9.6
In the event that members of the affected constituency decide to approve a
nomination, then that nomination shall be forwarded to the Minister who shall appoint the
representatives to the executive council and/or chambers.
….’

[38] Clause 9(1) prescribes what number of representatives each of the
organised business and organised labour constituencies may nominate to

the executive council and chambers. It does not deal with membership of
the two constituencies. Clause 9.2 deals with the representation of the
various constituencies at the inaugural meeting of Nedlac and does not
deal with membership of the various constituencies either. Clauses 9.3 to
9.6 deal with the representation of the various constituencies after the
inaugural meeting and does not deal with membership of the various
constituencies either. Clause 9.3 speaks of ‘[a]pplications for admission
to membership by organised business, organised labour and the State
after the inaugural meeting’. Organised labour means labour as
represented by the federations of trade unions that are the founding
parties of Nedlac and any federation admitted subsequently. Applications
by organised business or organised labour for admission to membership
can therefore not be applications for membership of the organised
business constituency or organised labour constituency, they can only be
applications for membership of the executive council and chambers of
Nedlac. The applications are to be made to the secretariat of Nedlac and
are then to be dealt with in terms of clauses 9.4 and 9.6. The secretariat of
Nedlac refers the applications to the relevant constituency (cl 9.4) which
is to consider them in terms of the procedures and criteria determined by
each constituency (cl 9.5). If approved the applications culminate in
nominations and appointments to the executive council or one of the
chambers of Nedlac (cl 9.6). In other words, in the case of organised
labour, Cosatu, Nactu and Fedusa being the founding members of Nedlac
and constituting organised labour in terms of the Act, would submit their
applications for membership of the executive council and chambers of
Nedlac to the secretariat of Nedlac. The secretariat will refer the
applications to the convenor of the labour constituency whereupon the
labour constituency ie Cosatu, Nactu and Fedusa will consider the
applications in terms of the procedures and criteria determined by the

constituency and  will decide who should be nominated. The agreed
nominations are forwarded to the minister who is obliged to appoint the
nominees as the representatives of organised labour to the executive
council and the chambers.

[39] Clauses 9.3 to 9.6 thus interpreted, purport to give effect to s 4(b)
of the Act which provides that Nedlac’s constitution ‘shall provide . . . for
the manner in which organised labour may nominate persons for
appointment as members . . . .’ It does not give effect to s 4(d) which
deals with the admission of federations of trade unions as members of
organised labour as defined in the Act.

[40] But, even if clause 9.5 of the constitution is interpreted to deal with
applications for admission to the labour constituency I am of the view, for
the reasons that follow, that it does not comply with s 4(d) of the Act.

[41] Nedlac is a body created by the legislature and is publicly funded
(s 7(3)). The legislature prescribed its objects, powers and functions. One
of the powers so conferred on Nedlac is the power to adopt a constitution
which provides for the matters stated in s 4 of the Act. One of the matters
that had to be provided for is ‘the criteria by which and the manner in
which organised labour shall admit federations of trade unions’ (s 4(d)).
The legislature therefore conferred on Nedlac the power and the function
to determine the criteria for admission of federations of trade unions as
members of the labour constituency. Nedlac purported to exercise that
power and perform that function by requiring the labour constituency
itself to determine the criteria for admission. By doing so Nedlac
delegated the power conferred on it to the labour constituency. The

question to be decided in this appeal is whether the legislature intended
the power and function conferred on Nedlac to be delegable.

[42] Having conferred authority on Nedlac to determine the criteria for
admission to the labour constituency one must assume that, unless there
are indications to the contrary, the legislature intended Nedlac and not
someone else to do so. Sir William Wade and Christopher Forsyth
Administrative Law 9 ed (2004) p 317 say:
‘There is no general principle that administrative functions are delegable. The principle is
rather that, where any sort of decision has to be made, it must be made by the authority
designated by Parliament and by no one else.’

Lawrence Baxter Administrative Law (1984) p 434 states:
‘In modern democracies original power derives from the political authority of elected
legislatures. Because of the practical requirements of government it is recognized that such
bodies may delegate their powers. In South Africa, Parliament is recognized to have unlimited
powers of delegation. Considerable latitude is also given to such “original” authorities as
provincial councils. But all other administrative authorities are treated as delegees, power
having been delegated to them by the original authority. Not being the direct repositories of
public trust they are not permitted the same freedom to choose who shall exercise their
powers. There is a presumption that they may not further delegate (ie sub-delegate) their
powers: delegatus non potest delegare.’

In Attorney-General, OFS v Cyril Anderson Investments (Pty) Ltd 1965
(4) SA 628 (A) at 639C-D Botha JA said:
‘The maxim delegatus delegare non potest is based upon the assumption that, where the
legislature has delegated powers and functions to a subordinate authority, it intended that
authority itself to exercise those powers and to perform those functions, and not to delegate
them to someone else, and that the power delegated does not therefore include the power to
delegate. It is not every delegation of delegated powers that is hit by the maxim, but only such
delegations as are not, either expressly or by necessary implication, authorised by the
delegated powers.’

[43] There is no express indication to be found in the Act that the
legislature intended Nedlac to have the power to authorise somebody else
to determine ‘the criteria by which and the manner in which organised
labour shall admit federations of trade unions’ to the labour constituency.
In my view such power was not conferred on Nedlac by necessary
implication either.

[44] The object of the legislature in creating Nedlac was to create a
body consisting of representatives of organised labour, organised
business, the State and community organisations which could assist in the
formulation of a co-ordinated policy on social and economic matters by
inter alia seeking to reach consensus and conclude agreements on matters
pertaining to social and economic policy, by considering all proposed
labour legislation relating to labour market policy before it is introduced
in Parliament  and by considering all significant changes to social and
economic policy before they are implemented or introduced in Parliament
(s 5 of the Act). In order to achieve its object the various constituencies
particularly business and labour need to be adequately represented in
Nedlac. Not only will the work of Nedlac be of very little value if the
constituencies are not adequately represented but it is also unlikely that
organised labour will be interested in being represented on this body and
in spending time and effort in trying to reach consensus with an
unrepresentative business constituency and vice versa.

[45] Each constituency has an interest in the proper functioning of
Nedlac and therefore has an interest in the composition of Nedlac. Nedlac
itself submits that its proper functioning requires that only the most
representative federations of organisations take part in the negotiations. It
submits that it is impracticable to include in Nedlac’s process a host of

representative
employee
or
employer
organisations.
In
these
circumstances it is unlikely that the legislature would have intended to
confer the authority to determine the criteria for admission to the labour
constituency to someone other than Nedlac in which each constituency is
represented. It is particularly unlikely that it would have intended that the
authority could be delegated to the labour constituency. The legislature
no doubt considered the founding parties of organised business and
organised labour to be substantially representative of their respective
constituencies. But circumstances may change, other federations of trade
unions and other business associations may be formed causing the
existing members of the relevant constituencies no longer to be
adequately representative of their constituencies and making it desirable
that new members be admitted. However, although the admission of a
new member to for example the labour constituency may be in the
interests of the proper functioning of Nedlac it may not be in the interests
of the incumbent members of the constituency. The incumbent members
of the labour constituency may well consider it in their interests that they
and not other trade union federations should speak on behalf of labour.
For these reasons they may be unduly reluctant to admit other trade union
federations to the detriment of the proper functioning of Nedlac ie they
may be influenced by their own interests as opposed to the interests of
Nedlac in determining the criteria for admission to the labour
constituency. That trade unions are often in competition with one another
and that a federation of trade unions may aspire to be the only
representative of workers is confirmed by statements made by Cosatu’s
president and by Mr Ebrahim Patel, at the time the convenor of the labour
constituency at Nedlac. In a keynote address of the Cosatu president to
Cosatu’s Central Committee in April 2003 he said: ‘Let me repeat the call
we have been making: in the context of the challenges we face, the need

to create one federation in one country cannot be over-emphasised.’ Mr
Patel stated in his answering affidavit: ‘It is an historical truism, not only
in South Africa but elsewhere in the democratic world, that trade unions
are more often than not involved in a keenly competitive relationship
with rival unions.’

[46] Nedlac submits that the individual constituencies are best placed to
appreciate what criteria would ensure effective membership in order to
achieve the purposes of the Act. It was also suggested that the legislature
could not have intended that business should be able to prescribe to
labour by whom it should be represented and vice versa. It may be that
the individual constituencies are best placed to appreciate what criteria
would ensure effective membership in order to achieve the purposes of
the Act but, as pointed out above, there is a danger that they may be
influenced by self interest not to act in the best interest of Nedlac. To
require Nedlac itself to determine the criteria for admission to a particular
constituency is also not to allow one constituency to prescribe to another
by whom it should be represented. First, representation on the council as
opposed to representation in the labour constituency is decided upon by
each constituency and nobody else. The constituency nominates its
representatives and the minister concerned is obliged to appoint the
nominees. Second, the criteria has to be provided for in the constitution of
Nedlac which requires the agreement of all the constituencies. The
business constituency cannot force labour to agree to criteria for
admission that are not acceptable to labour and vice versa. Each
constituency can use its superior knowledge, assuming that it has such
knowledge, of what criteria would ensure effective membership in order
to achieve the purposes of the Act, to persuade the other constituencies to
agree to what it considers to be the appropriate criteria. The legislature

had no reason to think that the constituencies would not be able to reach
agreement and, in the event, none of the other constituencies would seem
to have a problem with the criteria determined by the labour constituency.

[47] It was further suggested that the fact that the criteria determined by
the labour constituency would appear to be acceptable to the other
constituencies renders this application academical. I do not agree. Should
the appeal succeed Nedlac would be compelled to spell out in its
constitution what the criteria for admission to the labour constituency are
and the labour constituency will be prevented from unilaterally adjusting
the criteria at informal meetings. The Nedlac constitution provides that it
may only be amended by the executive council and that an endorsement
by two thirds of each of the constituencies is required.

[48] The court below and the appellant rely on the decision in Minister
of Agriculture, Economics and Marketing & another v Peyper 1964 (1)
SA 206 (T) in support of the finding that the Nedlac constitution provides
for the criteria by which organised labour shall admit federations of trade
unions. The Marketing Act 26 of 1937 provided for the proclamation of
schemes to control the marketing of certain agricultural products. Section
18(1)(e)bis provided that the Scheme should ‘provide for the
establishment of one or more reserve funds  . . ..’ The Milk Scheme
proclaimed in terms of the Marketing Act provided that the board
constituted in terms of the Scheme should establish one or more reserve
funds into which shall be paid certain amounts. It was submitted that this
was not a power that could be delegated to the board. The court held that
the Act required the Scheme to make provision for the establishment of
reserve funds and that the Scheme did so. In my view a reserve fund
could only be established through some agency such as the board.

Provision for the establishment of a reserve fund therefore meant that an
agency had to be charged with the duty of establishing a reserve fund or
funds. That is exactly what the Milk Scheme did. Providing for ‘the
criteria by which and the manner in which organised labour shall admit
federations of trade unions’ does not mean that an agency has to be
charged with the duty of determining the criteria. In my view it means
and was intended by the legislature to mean that the criteria have to be
spelled out in the constitution. Other matters that ‘shall be provided for’
in the constitution are the manner in which organised business and
organised labour may nominate persons for appointment as members, the
manner in which members may be removed, ‘the appointment of
alternates to members’, ‘the appointment of ex officio members’, ‘the
removal of members’, ‘the appointment, removal, duties and powers of
the chairpersons . . .’, ‘the establishment, composition, and functions of
the executive council’, ‘the keeping of minutes’, ‘the manner in which
decisions are taken’, ‘the amendment of the constitution’ etc. These are
clearly all matters that were required to be spelled out in the constitution.

[49] Nedlac’s case is that it would be inappropriate for anybody except
the labour constituency to determine the criteria by which organised
labour should admit federations of trade unions. However, one should not
lose sight of the fact that in interpreting the Act one is trying to give
effect to the intention of the legislature. If the legislature was of that view
it would not have required the Nedlac constitution to provide for such
criteria it would simply have stated that organised labour should
determine the criteria. The fact that it did not do so is in my view a clear
indication that the legislature was not of that view.

[50] For these reasons I am satisfied that the legislature was not of the
view that the Nedlac constitution failed to provide for ‘the criteria by
which organised labour shall admit federations of trade unions’ and that a
provision in the constitution that such criteria should be determined by
the labour constituency is not authorised by the Act.

[51] I would accordingly have upheld the appeal and have granted the
application.

_________________
P E STREICHER
JUDGE OF APPEAL

APPEARANCES:

For appellant:
M Khoza SC

Instructed by:

Ramushu Mashile Twala Inc, Johannesburg

Honey Attorneys, Bloemfontein

For respondent:
K S Tip SC

N H Maenetje

Instructed by:

Cheadle Thompson & Haysom, Johannesburg

Webbers, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT
OF APPEAL
31 March 2011

STATUS: Immediate

CONFEDERATION OF SOUTH AFRICAN TRADE UNIONS / NATIONAL
ECONOMIC DEVELOPMENT AND LABOUR COUNCIL AND OTHERS

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

1.
The Supreme Court of Appeal today dismissed an appeal by the
Confederation of South African Workers' Union (Consawu) against a judgment
of the North Gauteng High Court (Pretoria) in which an application by
Consawu to have part of the constitution of the National Economic
Development and Labour Council (Nedlac) declared invalid, was dismissed.

2.
The majority of the SCA held that clauses 9.3 to 9.6 comply with
section 4(d) of the Nedlac Act, 35 of 1994. It held that each of Nedlac's
constituencies is authorised in law to determine the procedure and criteria for
membership to that constituency itself. In doing so, the court held, the
constituencies are exercising original and not delegated powers.

3.
Consawu's application for membership to Nedlac had been declined by
the organised labour constituency, because in terms of the criteria set by that
constituency, Consawu did not meet the required membership threshold of
300 000 members. Consawu contended that it was unlawful for the labour
constituency to set such criteria; a contention which the majority of the court
rejected.

4.      In a minority judgment, Consawu's contentions were upheld. The
minority held that Nedlac itself had to exercise the power to determine the
procedure and criteria for membership ─ to grant that power to individual
Nedlac constituencies amount to an unlawful delegation of power. The
impugned clauses of the Nedlac constitution were thus invalid.

---ends---