Labour court declares Joseph Mathunjwa’s 2019 election as AMCU president unlawful

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The Labour Court has declared that the election of Joseph Mathunjwa as president of AMCU was unlawful and has set his appointment aside.
The Labour Court has declared that the election of Joseph Mathunjwa as president of AMCU was unlawful and has set his appointment aside.
Picture: Rosetta Msimango
  • The Labour Court on Monday set aside Joseph Mathunjwa’s election as president of AMCU.
  • At the heart of the decision was that Mathunjwa was not employed in the sector since 2013 and so was never eligible to stand as union president.
  • The court ruling is prospective, not retroactive, so any past decisions taken by Mathunjwa in his capacity as AMCU president remain valid.

The Labour Court has declared that the election of Joseph Mathunjwa as president of the Association of Mineworkers and Construction Union (AMCU) was unlawful and has set his appointment aside. 

In a judgment handed down earlier this week, acting Judge Sandile Mabaso found that because Mathunjwa had not been employed in the mining and construction sectors his re-election as AMCU President in September 2019 was not valid.

This goes against AMCUs own constitution which requires an office bearers to first be an AMCU member. And "the constitution clearly states that a condition of being a member [is that] you need to be employed in a sector". The Labour Relations Act, too, defines a trade union as "an association of employees", the judgment noted.

Central to the court’s ruling was that Mathunjwa was retrenched in 2013 and so was automatically disqualified from being an AMCU member. In fact, he was never eligible to stand as president despite serving in the role since 2013.

The full implications of the ruling remain unclear, but the inability of Mathunjwa to hold office is likely to have major consequences for the union and the broader labour landscape in South Africa.

Under Mathunjwa’s leadership, AMCU has grown from strength to strength. There has, however, been burgeoning internal tensions over the need for leadership changes and related opportunities for aspirant members.

Sources told Fin24 Mathunjwa was absent during gold wage talks this week and he was also not present at a mining safety conference with the Mineral Resources and Energy Minister Gwede Mantashe on Thursday.

The case was brought before the labour court by AMCU’s former deputy president, Nkosikho Joni, who asked the court to declare the elections of Mathunjwa and that of AMCU treasurer general Jimmy Gama to be unlawful, unconstitutional and invalid.

In turn, Joni wanted the court to further declare that Mathunjwa’s decision to expel him from the union was unlawful and unconstitutional.

While the labour court indeed found Mathunjwa’s election to be invalid, it issued a prospective order to set aside his appointment, as opposed to a retrospective one.

This means that any decisions Mathunjwa took in his role as union president remain enforceable while any decisions he takes from here on out would be invalid. 

Judge Mabaso said Joni had failed to prove his case against Gama.

The court also found Joni had no locus standi, or a right to bring the legal action and so he was granted no relief in terms of his expulsion.

While both parties requested a costs order against each other, the court decided it was in the interests of justice to not make any such order.

Mathunjwa could not be reached for comment on Thursday. 

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