According to the South African Constitution, every employee has the right to join a trade union. Freedom of association is a Constitutional right, as well as a basic labour right, of every employee, and Section 4 of the Labour Relations Act (LRA) determines that every employee has the right to join a trade union. However, this is subject to a trade union’s constitution and scope.


When it comes to trade unions in the workplace, it is often assumed that such trade unions have the necessary locus standi to recruit members within that workplace, as well as to represent them and/or act on their behalf when it comes to disputes in the workplace, or at the CCMA or Bargaining Councils. This is, however, not always the case as every trade union is restricted and bound by their constitution and scope, which specifically stipulates in which sectors and/or industries and/or types of workplaces that they may operate.


Locus standi” refers to the “sufficiency and directness of a litigant’s interest in proceedings which warrants their right or capacity to bring an action or to appear in a court”. If a trade union does not have the necessary locus standi, it means that they will not be able to validly recruit members and/or represent and/or appear on their behalf as they would be acting ultra vires (beyond their power) to their constitution and scope, making such actions invalid.


This is important for employers to know as they should request and check a trade union’s constitution and scope when such trade union starts recruiting members within their workplace as such a trade union must comply and act according to their constitution and scope. Should an employer find that such a trade union is acting ultra vires, and outside of their constitution and scope – an employer may then challenge the trade union’s locus standi within the workplace or during a dispute at the CCMA and/or Bargaining Council.


Challenging a trade union’s locus standi may be done by informing the trade union that they are acting ultra vires and refusing to acknowledge and/or correspond with such a trade union as well as informing their employees who are members – whether in the workplace, or by informing the presiding Commissioner during a dispute at the CCMA and/or Bargaining Council and raising a point in limine.


As per the precedent case law in favour of employers in the Labour Appeal Court of South Africa – “Case No. DA8/2018 – Lufil Packaging (Isithebe) (A division of Bidvest Paperplus (Pty) Ltd) v Commission for Conciliation Mediation and Arbitration and Others, a trade union sought to exercise its rights by requesting the employer to deduct membership fees from its members within the workplace. The employer disputed the locus standi of the trade union’s request for organisational rights on the basis that it fell outside of the registered scope of the trade union, and that the employees were not eligible under the trade union’s constitution to be members for the purposes of assessing a trade union’s representativeness in terms of Chapter III of the LRA. The employer further argued that because the claimed members are precluded by the trade union’s constitution from becoming its members, any purported admission of such employees as members is ultra vires to the trade union’s constitution and is therefore invalid. The trade union contended that as a registered trade union, and a representative of the majority of the workers within the workplace, it had legal standing to claim organisational rights. The Labour Appeal Court held that a trade union cannot create a class of membership outside the provisions of its own constitution, and that if they purport to do so, they act in excess of their powers, and the act has no validity.


A purported decision by a trade union to admit a member who is not eligible under its constitution to become a member is not a mere internal decision which is immune from attack by an affected employer. Such a decision is ultra vires and invalid and, as such, susceptible to challenge by the employer from whom organisational rights – based on the membership concerned – is sought.


It is, therefore, an employers’ responsibility to challenge a trade union’s locus standi, and we advise that employers should contact your nearest CEO office as soon as possible so that we may assist and advise you in dealing with this type of matter effectively and efficiently.


Article by: Carl Ranger

Dispute Resolution Official – Bloemfontein