Joseph Mathunjwa is fighting to retain his position as president of the Association of Mineworkers and Construction Union (Amcu), despite a scathing court ruling this week, which declared his election unlawful.
On Monday, acting Judge Sandile Mabaso of the labour court ruled that his re-election as Amcu president in 2019 had not been valid. He found that Mathunjwa had not been employed in the mining and construction sectors since 2013, which is when he was retrenched.
But Mathunjwa, in his appeal papers filed a day after Mabaso’s judgment, stressed that, by virtue of being a union member in good standing, he was eligible to contest for the Amcu presidency.
Mathunjwa and Amcu argued that the courts did not have the jurisdiction to rule on whether his election was lawful or not. The application to set aside Mathunjwa’s election was launched by Nkosikho Joni, a former Amcu deputy president, who was elected at the same conference, but was dismissed last year.
Mathunjwa’s appeal reads:The learned judge erred in finding that Mr Mathunjwa was ineligible for election as Amcu president in terms of Amcu’s constitution, and that his election was unlawful and fell to be set aside.
They also argue that the judge had misinterpreted the union’s constitution in the judgment.
“The learned judge essentially found that where a person is not an employee (or former employee whose dismissal is the subject of a legal challenge), such a person is ineligible to be a member of Amcu and, as a result, is ineligible for election as Amcu president in terms of [its] constitution.
“The learned judge’s interpretation, with respect, erred in not having proper regard for the fact that Amcu’s constitution defines ‘member in good standing’ as an employee who is paying his or her subscription deductions in favour of Amcu on a monthly basis and those office bearers who currently serve in the organisation.
It then elaborates on why the position would possibly require an individual who could offer their undivided attention to the workings of the union.The learned judge’s interpretation further erred in failing to properly regard the practical reality that the role of the president of Amcu entails a full-time commitment, which is a powerful contextual indicator in favour of the interpretation advanced by Amcu and Mathunjwa, and is the sensible and business-like manner in which Amcu’s constitution can be interpreted.
While Joni succeeded in getting Mathunjwa removed, he failed to prove his case against Amcu treasurer-general Jimmy Gama, who he said was not qualified to contest the 2019 election.
Joni has also hoped that the court would declare Mathunjwa’s decision to expel him from the union unlawful and unconstitutional, but the judgment stated that he had no locus standi, or a right to bring the legal action, so he was granted no relief in that regard.
While both parties requested a costs order against each other, the court decided it was in the interest of justice to not make any such order.
The conflict between Joni and Mathunjwa started brewing just after the elective conference. Joni was elected unopposed in September 2019 and, shortly afterwards, was called to a meeting and asked to resign. This was prompted by some of Amcu’s leaders, including the national organiser, Dumisani Nkalitshana.
At this stage, the union had already received a notice from Lehlohonolo Molefe, the department of labour’s labour relations registrar, questioning the legitimacy of Amcu’s office bearers.
In his letter, Molefe threatened to deregister the union if it did not abide by correct labour practices.
To avoid legal action, Mathunjwa would have had to contest for the general secretary post and Gama for the deputy general secretary position.
These positions did not require the two to be employed by mines.
However, Mathunjwa viewed the idea as a ploy to upstage him. Instead, he and Gama ran for their current positions and were elected uncontested.