Die regsaanspreeklikheid van 'n vakbond teenoor sy lede
Higgs, Charles Henry John
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The Constitution of the Republic of South Africa6 (hereinafter the Constitution) gives everyone the right to fair labour practices.7 The Labour Relations Act8 (hereinafter the LRA) regulates the relationship between employers and employees as well as the relationship between employers and trade unions. These labour relations are quite extensively regulated by statutory measures. The same can unfortunately not be said about the relationship between a trade union and its members. Because a trade union is a legal entity, a trade union is controlled and managed by certain functionaries like any body corporate. The management structures of the trade union are defined in the trade union’s constitution. A trade union can not perform any legal functions which are not provided for in the trade union’s constitution. 9 The trade union’s constitution states the nature of the relationship between the union and its members.10 Workers join trade unions in order to protect themselves and their rights in the workplace. An expectation is therefore cultivated by the members that the trade union, through its representative power and mandate to act on behalf of the members, will do so in the best interest of the members. The disruption of the relationship can have negative implications for the trade union. In this study, relevant case law will be sited to explain the contents of the legal responsibility of a trade union to its members. The specific focus of the study is the legal responsibility of a trade union if its members would suffer pecuniary loss or harm as a result of the trade union’s actions. The purpose of this study is to discuss the regulation of the relationship between a trade union and its members in South Africa and to find a solution for the fragmented regulation or non-regulation thereof. The authority that a member grants to a trade union, mostly in the form of a contract, involves the expression of the will of the members that the trade union has the necessary power to perform judicial acts on its behalf. The discussion is limited to the actual authorization originated by a contract of mandate between a trade union and its members. In terms of the common law’s contract of mandate a representative is obliged to perform his orders with care and diligence, convey information, to act in good faith and to account for his actions. There are no statutory measures that regulate the nature of the legal relationship between a trade union and its members provided for in the trade union’s constitution. This study discusses the regulatory challenges that the regulation of the relationship between a trade union and its members in South Africa are facing, and some recommendations are made with regards to the possible application of existing legislation and the common law contract of mandate.
- Law