“The suspensions are unlawful. The respondents (Nehawu and Nehawu provincial office) breached the Nehawu constitution. The provincial executive committee (PEC) acted ultra vires (beyond the powers) and without following due process.”
THE EXPELLED regional leadership of the National Education, Health and Allied Workers Union (Nehawu), who won a court order in their favour, have stated that they will be reclaiming their offices from next week.
This follows a judgment that was awarded in the Northern Cape High Court on December 4, which found that the suspension and termination of the memberships of the Nehawu regional office-bearers and branch leaders – London Kopa, Thamsanqua Mkhila, Tumi Majola, Thembisa Mlatha, Kgalalelo Maketlo, Gloria Manzana and Itumeleng Modise – was “contrary to the principles of natural justice which prejudiced the applicants” where the “provisions of the Nehawu constitution were contravened”.
Acting Judge AJ Mofokeng set aside the expulsions of Kopa, Mkhila, Majola, Mlatha and Modise as well as the suspensions of Maketlo and Manzana.
Delivering judgment, she pointed out that the members were suspended prior to them being subjected to any disciplinary proceedings or the national executive committee (NEC) ratifying the decision.
“The suspensions are unlawful. The respondents (Nehawu and Nehawu provincial office) breached the Nehawu constitution. The provincial executive committee (PEC) acted ultra vires (beyond the powers) and without following due process.”
Judge Mofokeng added that the members were not obliged to exhaust the appeal procedure in light of their “constitutionally invalid suspension and termination”.
The members were suspended by the Nehawu PEC in June 2019 and were served with expulsion letters in September 2019.
The members’ representative attorneys advised the union that their clients were entitled to a fair administrative process and requested reasons for the decision to suspend the members. They were informed that the minutes of the meeting contained a number of “organisational decisions” that could not be made available “at that stage”.
A new regional leadership was elected in February this year.
Regional chairperson London Kopa said on Tuesday that they were expelled without being charged or being subjected to disciplinary hearings.
“The current regional leadership must step aside because they were elected while there was a pending matter before the high court to set aside the unconstitutionality and unlawful suspension and expulsion of regional office-bearers and branch leaders. We are prepared to fight our reinstatement in the Constitutional Court.”
He pointed out that they had raised their own funds to challenge the unlawful decision in court. “No one gifted us with funds.”
Kopa called for an early regional conference to be held early next year to elect the “rightful” office-bearers.
“We will be contesting for the leadership positions, everyone is free to participate. Up until then we are the legitimate leaders and will refuse to accept any decision made, unless it is made in a court of law. We will begin branch activities next week and are confident that we will be re-elected by a majority of the branches.”
Regional secretary Thami Mkhila pointed out that the PEC did not have powers to suspend or expel any members but may only make recommendations to the national executive committee (NEC).
“The NEC has the sole authority to do so and the appeal structure would be the central executive committee (CEC) which is the highest decision-making body between congresses.”
He indicated that they would resume their duties on December 14 to allow the NEC and CEC to discuss the judgment.
“We welcome the judgment as it exonerates us from any wrongdoing as purported by the provincial office-bearers under the false pretence that the PEC took such a decision in the meeting held on March 27-29, 2019 and the special PEC held on June 18-19, 2019.”
Nehawu provincial secretary Steffen Cornelius said they were still studying the judgment.
“We will abide by the rule of law. The judgment does not go into substantive issues but rather that decisions were taken without subjecting members to disciplinary procedures.”
He indicated that the expelled members did not succeed in interdicting the regional conference in February.
“We recognise the sitting leadership that were elected at the conference earlier this year.”
