THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

REPORTABLE
Case no: JR1269/2020

In the matter between:
NATIONAL EDUCATION HEALTH AND
ALLIED WORKERS UNION OBO MEMBERS Applicant

and

ESSENTIAL SERVICES COMMITTEE First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
SIBONGISENI SITHOLE NO Third Respondent

INDEPENDENT ELECTORAL COMMISSION Fourth Respondent

Heard: 19 November 2024
Delivered: 5 March 2025
Summary : Application to review and set aside ruling of the Essential Services
Committee, including its jurisdictional ruling. Application for condonation for the
late filing of the review. Application for condonation granted, but application for
review dismissed .

2


JUDGMENT


DANIELS J
Introduction
[1] The National Education, Health and Allied Workers Union ( hereafter the
“NEHAWU”) brings this application on behalf of its members. NEHAWU seeks
to review and set aside the ruling of the third respondent (the “commissioner”), acting under the auspices of the Essential Services Committee (hereafter the
“ESC”) , handed down on 7 May 2020, under reference ES51. The applicant
also seeks condonation for the late filing of its review application. [2] These applications are opposed by the fourth respondent , cited as the
Independent Electoral Commission. Nothing turns on this, but the fourth respondent ought to be referred to as the Electoral Commission ( hereafter the
“Commission” or the “Electoral Commission”).
Background
[3] NEHAWU has a number of members in the employ of the Electoral
Commission .
[4] Given that the Electoral Act No. 73 of 1998 ( hereafter the “Electoral Act”) :
establish es the Commission as an essential service “ for the purposes of the
LRA” , the Commission and the NEHAWU commenced negotiations , through the
Electoral Commission ’s National Bargaining Forum, to agree on a minimum
services agreement ( hereafter “MSA”). These negotiations were facilitated by
the ESC.

3

[5] NEHAWU and the Commission agreed on most of the terms of the MSA
but were unable on clause 3.6; proposed by the Commission, which read as
follows:

“[3.6] Parties agree that strike action or withholding of labour will be
prohibited from the beginning of the first month of an official registration
event until the end of the month in which National, Provincial or Local
Elections are being conducted. Furthermore, the same timeframes and limitations will be applicable in areas where by -elections are being
conducted.” (own emphasis)

[6] NEHAWU took the view that clause 3.6 w ould have the effect of limiting
strikes, by its members, in excess of the limits imposed by the Local
Government: Municipal Electoral Act 27 of 2000 ( hereafter the “Municipal
Electoral Act”) . During the negotiations, NEHAWU and the Commission agreed
that any dispute about the terms of the MSA w ould be determined by the ESC.
NEHAWU therefore referred a dispute to the ESC.
[7] However, despite its stance during negotiations, at the ESC hearing, the
Commission’s representatives argued that the ESC had no jurisdictio n. It
argued that the concept of a “ minimum service ” contemplated by the Labour
Relations Act No. 66 of 1995 (hereafter “the LRA”) related only to the minimum
number of employees necessary to ensure that there was no danger to life, personal safety or health [of the whole or part of the population] while this
dispute concerned only the timing of strikes . In addition, the Commission
submitted, the disruption of its services presented no danger to life, personal
safety or health [of the whole or part of the population] . The s ervices of the
Commission was therefore not an “ essential service” as contemplated by the
LRA. Nor could it be considered a “designated essential service” because the
ESC had not designated the Commission as an essential service.
[8] In an affidavit submitted to the ESC, the Commission suggested that the
ESC may determine the dispute in terms of section 74(1) of the LRA .
Furthermore, the Commission stated, many strikes, including those by
4

NEHAWU, are characterised by violen ce. The Commission submitted that
strikes, during voter registration, could undermine its ability to comply with its
constitutional mandate, as outlined by the Constitutional Court in Electoral
Commission of South Africa v Speaker of the National Assembly and others1.

[9] The primary argument of the NEHAWU was based on section 210 of the
LRA which provides that where conflict arises (in relation to matters dealt with
under the LRA ) with any other law the LRA must prevail2 save to the extent that
such other law expressly amends the LRA.

[10] The ESC issued its ruling on 7 May 2020, in which it found that :

10.1 Its powers are not limited to the essential services designated by it
under the LRA .

10.2 Its powers extend to all essential services including those
determined to be essential services through legislation such as the
Electoral Act.
10.3 The words “ for the purposes of the LRA ” in section 112(1) of the
Electoral Act was intended to convey that the provisions of the LRA, which relate to essential services are incorporated, by reference, into the Electoral Act.
10.4 Because the parties had already agreed on the minimum number
of employees required to maintain the minimum service, the only dispute
existed in relation to the timing of strikes. The Electoral Act and the
Municipal Electoral Act both limit ed strikes at times critical to election s,
given the importance of elections proceeding without interference.


1 2019 (3) BCLR 289 (CC) (22 November 2018)
2 Save for the Constitution.
5

10.5 The limitation on strikes contemplated in clause 3.6 of the
proposed MSA was fair and reasonable because it confirms what is
already contained in legislation. C lause 3.6 wa s therefore determined to
be part of the minimum service agreement .

Condonation

[11] The applicant , dissatisfied with the ruling of the IEC, brought an
application to review and set aside the ruling. The ruling was handed down on 7
May 2020, but the review application only initiated on 10 September 2020,
several weeks outside the prescribed period.

[12] The explanation for the delay is that , when the ruling was issued, the
COVID19 pandemic was rife, and convening physical meetings between
members and officials were extremely difficult. Travel restrictions were in place,
and union officials were unable to access the union’s offices, photocopying and faxing facilities.
[13] In relation to prospects of success, the applicant states that it has good
prospects of success because the third respondent misapplied the law and permitted other legislation to override the LRA. The applicant alleged that it was in the interests of justice to grant condonation, and it would be seriously prejudiced, if condonation were refused, because the constitutional right to
engage in strike action would be unjustly curtailed.
[14] The fourth respondent opposes the application for condonation. It argues
that the period of the delay is lengthy, the applicant has not explained the delay
in full, the explanation is weak, and the applicant will suffer no prejudice if
condonation is refused.

[15] Before considering the condonation application, it is necessary to set out
the principles which govern condonation. They are conveniently summarised in
6

Grootboom v National Prosecuting Authority & another3 at paras 50 and 51
where Zondo J (as he then was) held:

[50] In this court the test for determining whether condonation should be
granted or refused is the interests of justice. If it is in the interests of justice that condonation be granted, it will be granted. If it is not in the
interests of justice to do so, it will not be granted. The factors that are
taken into account in that enquiry include:
(a) length of the delay;
(b) explanation for, or cause for, the delay;
(c) prospects of success for the party seeking condonation;
(d) importance of the issue(s) that the matter raises;
(e) prejudice to the other party or parties; and
(f) effect of the delay on the administration of justice.

Although the existence of the prospects of success in favour of the party seeking condonation is not decisive, it is an important factor in favour of granting condonation.
[51] The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out
of consideration in certain circumstances. For example, where the delay
is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are
reasonable prospects of success, condonation should be granted.
However, despite the presence of reasonable prospects of success,
condonation may be refused where the delay is excessive, the
explanation is non- existent and granting condonation would prejudice the
other party . As a general proposition the various factors are not
individually decisive but should all be taken into account to arrive at a
conclusion as to what is in the interests of justice. ”

3 (2014) 35 ILJ 121 (CC)
7


[16] In my view, the period of the delay, though not insubstantial, cannot be
described as “excessive” . In addition, though greater detail could have been
provided, the chaos wrought by the COVID19 pandemic is well known and has
been recognized by our court s. The explanation for the delay, though lacking in
certain detail, is adequate. In addition, there are prospects of success. Indeed,
the fourth respondent’s own stance at the ESC , that it had no jurisdiction,
indicates that the applicant’s contentions are not completely without merit .

[17] The interests of justice weigh heavily in favour of condonation. At face
value, c lause 3.6 of the proposed MSA is broader than the limits imposed on
strikes by the Municipal Electoral Act. Given the centrality of the right to strike,
any limit on strike s is of some significance. Furthermore, the importance of the
function performed by the Electoral Commission, adds further heft to the matter.
The Electoral Commission suffers little or no material prejudice if condonation is
granted. In these circumstances, this judgment will bring greater certainty on
this important matter.
[18] In the circumstances, condonation is granted for the late filing of the
review application.
Legal principles : reviews
[19] The arbitration and the outcome both constitute administrative action.
Section 33(1) of our Constitution requires that all administrative action must be
lawful, reasonable and procedurally fair. It was in this context that the Constitutional Court
4 fashioned the generally applicable review test in relation to
CCMA arbitration awards in the following terms: is the arbitration award is one
which no reasonable commissioner could reach on the material before him or her?


4 Sidumo and another v Rustenburg Platinum Mines Ltd and others 2008 (2) SA 24 (CC); (2007)
28 ILJ 2405 (CC)
8

[20] However, in relation to reviews on jurisdictional matters, the appropriate
test on review is not reasonableness but correctness.5 This was explained as
follows in SA Rugby Players Association & others v SA Rugby (Pty) Ltd &
others6:

“[40] The CCMA is a creature of statute and is not a court of law. As
a general rule, it cannot decide its own jurisdiction. It can only make a
ruling for convenience . Whether it has jurisdiction or not in a particular
matter is a matter to be decided by the Labour Court. …. This means
that, in the context of this case, the CCMA may not grant itself jurisdiction
which it does not have. Nor may it deprive itself of jurisdiction by making
a wrong finding that it lacks jurisdiction which it actually has. There is,
however, nothing wrong with the CCMA enquiring whether it has
jurisdiction in a particular matter provided it is understood that it does so
for purposes of convenience and not because its decision on such an
issue is binding in law on the parties .” (own emphasis)

Legal Analysis
The right to strike
[21] The right to strike is a fundamental right enshrined in our Constitution.
7
One of the objects of the LRA is to regulate the right to strike . Another is to give
effect to the public international law obligations of the Republic relating to labour relations.


5 Reviews in the Labour Court (LexisNexis) by A Myburgh and C Bosch at p241
6 (2008) 29 ILJ 2218 (LAC) at para 40
7 In SATAWU v Moloto (2012) 33 ILJ 2549 (CC) the Constitutional Court said:
“The right to strike is protected as a fundamental right in the Constitution without any
express limitation. Constitutional rights conferred without express limitation should not
be cut down by reading implicit limitations into them, and when legislative provisions
limit or intrude upon those rights they should be interpreted in a manner least restrictive
of the right if the text is reasonably capable of bearing that meaning .” (own emphasis)

9

[22] South Africa has ratified the Freedom of Association and Protection of
the Right to Organise Convention8 and the Convention concerning the
Application of the Principles of the Right to Organize and to Bargain
Collectively .9 Though neither convention directly refers to the right to strike,
collectively the conventions recognize the right s of workers to freedom of
association, and the rights of workers to undertake programmes to advance or
defend their interests. Within this context , the Committee on Freedom of
Association (a Committee established the Governing Body of the International
Labour Organisation) recognized the importance of the right of workers to strike
- with the exceptions of public servants who exercise the authority of the
State ,10 and those workers within essential services in the strictest sense.11
Enactments relating to the Electoral Commission [23] The Electoral Commission is governed by various legislation namely: 23.1 The Constitution of the Republic of South Africa Act 108 of 1996,
which deals with the functions of the Commission in section 190. The primary functions of the Commission are to act independently, to conduct free and fair elections (at all levels - national, provincial and local ) and to
announce the election results.
23.2 The Electoral Commission Act 51 of 1996
12 (hereafter the
“Electoral Commission Act”), which repealed the Independent Electoral Commission Act of 1993. The powers and functions of the Commission

8 No 87 (1948)
9 No 98 (1949)
10 Digest of decisions and principles of the Freedom of Association Committee of the Governing
Body of the ILO (2006) (Fifth Revised Edition) at para 596; see also B Gernigon in “ILO
Principles Concerning the Right to Strike” International Labour Review Vol. 137 (1998) (Vol 4) at p17
11 The Freedom of Association Committee considers essential services, in the strictest sense, to
be those services the interruption of which would create and clear and imminent threat to the
life, personal safety, or health of the whole or part of the population. See Digest of D ecisions
and Principles of the Freedom of Association Committee of the Governing Body of the ILO
(2006) (Fifth Revised Edition) at para 581
12 51 of 1996
10

are dealt with in section 5 of the Electoral Commission Act. The Electoral
Commission Act deals with the election of national, provincial and local legislative bodies.
23.3 The Electoral Act :
23.3.1 Applies to the elections of the National Assembly and every
provincial legislature, but only applies to the elections of a municipal council (or a by election for such council) to the extent contemplated by the Local Government: Municipal Electoral Act.
13

23.3.2 Section 112(1) provides that the “ service provided by the
Commission is an essential service for the purpose of the Labour
Relations Act .14 This provision is broad and appears to cover the entire
service of the Commission, at all times.

23.3.3 Section 112(2) provides that strikes and lockouts on voting day by
employees and employers in the public transport or telecommunication sector are prohibited and are not protected in terms of the LRA. These
services are not declared to be essential services.
23.3.4 While section 112(1) declares the service provided by the
Commission to be an essential service for the purposes of the LRA, section 112(2) merely prohibits strikes and lockouts in the public transport or telecommunication sector on the voting day. This contrast suggests that the drafters intended that the provisions of the LRA, as far as they relate to essential services, would apply to the Electoral
Commission but not the public transport or telecommunication sector.


13 See section 3(2) of the Electoral Act.
14 Note that , subject to any minimum service agreement, all employees engaged in the
“essential services” are prohibited from engaging in strike action by virtue of section 65(1)(d)(i)
of the LRA.
11

23.4 Section 86 of the Municipal Electoral Act provides: “ the service
provided by the Commission from the date the notice calling for an
election is published to the date the result of the election is declared, is an essential service”.

[24] It is appropriate at this point to note that while the Electoral Act suggests
that the entire service performed by the Electoral Commission is, at all times, an
essential service; the Municipal Electoral Act indicates otherwise.

Relevant provisions of the LRA [25] The following provisions of the LRA featured prominently during the ESC
hearing:
25.1 Section 72(2) reads: “ If the parties fail to conclude a collective
agreement providing for the maintenance of minimum services or if a collective agreement is not ratified a panel appointed by the essential
services committee may determine the minimum services that are
required to be maintained in an essential service”.
25.2 Section 72(8) reads: “ Any party to negotiations concerning a
minimum services agreement may, subject to any applicable collective agreement, refer a dispute arising from these negotiations to the commission or a bargaining council having jurisdiction for conciliation and, if an agreement is not concluded, to the essential services committee for determination”.
25.3 Section 72(9) reads: “ For the purposes of this section a ratified
minimum service or determined minimum service means the minimum
number of employees in a designated essential service who may not
strike in order to ensure that the life, personal safety or health of the
whole or part of the population is not endangered”. (own emphasis)

12

25.4 Section 73(1)(d) provides that any party to a dispute about the
terms of a collective agreement, relating to the maintenance of a
minimum service, may refer such dispute to the ESC for determination. 25.5 Section 74(1)(b) reads: “ Subject to section 73(1) any party to a
dispute that is precluded from participating in a strike or lockout because that party is engaged in an essential service may refer the dispute to the
Commission, if no council has jurisdiction.”
25.6 Section 213 reads: “ essential service means – (a) a service the
interruption of which endangers the life, personal safety or health of the whole or any part of the population; (b) the Parliamentary service; (c) the South African Police Services .” There is no definition of minimum service
in section 213.

Interpretation of statutes
[26] When statutes are to be interpreted, our courts are required to adopt the
interpretative triad of language, context and purpose. This was explained by
Wallis JA in Natal Joint Municipal Pension Fund v Endumeni Municipality
15 as
follows:

“[18] The present state of the law can be expressed as follows:
Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision
or provisions in the light of the document as a whole and the
circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language
used in the light of the ordinary rules of grammar and syntax; the context
in which the provision appears; the apparent purpose to which it is
directed and the material known to those responsible for its production.

15 2012 (4) SA 593 (SCA)
13

Where more than one meaning is possible each possibility must be
weighed in the light of all these factors . The process is objective, not
subjective. A sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent purpose
of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in regard to a statute
or statutory instrument is to cross the divide between interpretation and
legislation; in a contractual context it is to make a contract for the parties
other than the one they in fact made. The 'inevitable point of departure is
the language of the provision itself', read in context and having regard to
the purpose of the provision and the background to the preparation and
production of the document .” (own emphasis)
[27] The Constitution, particularly section 39(2), requires our courts to seek
the interpretation least restrictive of fundamental rights. In South African Police
Services v POPCRU and another
16 our apex court stated:

“[29] In determining the proper meaning of essential service as defined in
section 213, it is important first to consider the principles applicable to the proper interpretation of statutes. Section 39(2) of the Constitution enjoins every court, tribunal or forum, when interpreting any legislation, to “promote the spirit, purport and objects of the Bill of Rights.” The
interpretive process in conformity with the Constitution is limited to what the texts of the provisions in question are reasonably capable of meaning.

[30] In order to ascertain the meaning of essential service, regard must
be had to the purpose of the legislation and the context in which the
phrase appears. An important purpose of the LRA is to give effect to the
right to strike entrenched in section 23(2)(c) of the Constitution. The
interpretative process must give effect to this purpose within the other

16 (2011) 32 ILJ 1603 (CC)
14

purposes of the LRA as set out in section 1(a). The provisions in
question must thus not be construed in isolation, but in the context of the
other provisions in the LRA and the SAPS Act. For this reason, a
restrictive interpretation of essential service must, if possible, be adopted
so as to avoid impermissibly limiting the right to strike. Were legislation to
define essential service too broadly, this would impermissibly limit the
right to strike .” (own emphasis)
[28] When there is a conflict of statutory provisions, it is necessary to read the
provisions in harmony , if possible . The Constitutional Court summarized this, as
follows , in Independent Institute of Education (Pty) Limited v Kwazulu- Natal Law
Society and others :
17

“[38] It is a well- established canon of statutory construction that “every
part of a statute should be construed so as to be consistent, so far as possible, with every other part of that statute, and with every other unrepealed statute enacted by the Legislature”. Statutes dealing with the
same subject matter, or which are in pari materia, should be construed
together and harmoniously. This imperative has the effect of
harmonising conflicts and differences between statutes. The canon
derives its force from the presumption that the Legislature is consistent
with itself. In other words, that the Legislature knows and has in mind the
existing law when it passes new legislation, and frames new legislation
with reference to the existing law . Statutes relating to the same subject
matter should be read together because they should be seen as part of a single harmonious legal system .” (own emphasis)
Analysis of the grounds of review
[29] Aside from the jurisdictional ruling, which is challenged, predominantly,
on the basis that the LRA conflicts with the Electoral Act , and the LRA must

17 (CCT68/19) [2019] ZACC 47; 2020 (2) SA 325 (CC); (2020 (4) BCLR 495 (CC) (11 December
2019)
15

trump, the applicant also alleges that the finding of the ESC was wrong on the
merits because:

29.1 National elections are held every five years, but elections are also
held at provincial and local levels. Thus, elections could be held every year. The commissioner failed to take into consideration that by including
the registration period, this limited the right to strike by anywhere from
two to eight months. This amounts to a “broad denial of the right to
strike”.
18

29.2 The commissioner took into consideration the Electoral
Commission’s submissions that strikes by the members of NEHAWU were invariably violent.
19

[30] Section 210 of the LRA does not come into play merely because there is
a difference between the LRA and any other law .20 This s ection only comes into
play when there is a difference, and the difference necessarily leads to conflict.
Where the differing legislation can be reconciled, there is no conflict.

[31] In my view, there is no conflict between the LRA and the Electoral Act.
The LRA does not state that the right to strike is without limitation . Section
65(1)(d)( i) prohibits any employee, who is engaged in an essential service, from
engaging in strike action. There is no indication that subsection (1)(d) applies
only to services designated as essential by the ESC . Accordingly, t he
prohibition applies to services designated (as essential ) by the ESC , services
deemed as essential under section 71(10) of the LRA , and services determined
to be essential by legislation such as the Electoral Act.


18 In the absence of a constitutional challenge, the court must accept that any limitation
countenanced by the Electoral Act passes constitutional muster.
19 This submission merits no discussion. This consideration did not appear from the analysis of
the commissioner, and is not a basis for his ruling.
20 See Food & Allied Workers Union on behalf of Gaoshubelwe v Pieman’s Pantry (Pty) Ltd
(2018) 39 ILJ 1213 (CC) at para 167
16

[32] While the Municipal Electoral Act defines the essential service in the
Electoral Commission more narrowly that the Electoral Act, these provisions
can be interpreted harmoniously. The obvious method to do this is to give effect
to the broader scope of the Electoral Act.
[33] When the Electoral Commission is not engaged in providing a service
related to municipal elections, the Commission is engaged in providing other
services in fulfilment of its constitutional mandate, as contemplated in section
190 of the Constitution, and its functions, as contemplated in section 5 of the
Electoral Commission Act.
[34] The ESC correctly gave some consideration to the importance of the
function
21 performed by the Electoral Commission. There can be little doubt that
free and fair elections are an essential pillar of our democracy , and the Electoral
Commission serves a critical service in that respect .
[35] As explained, s ection 210 of the LRA does not come into play given that
there is no conflict between the LRA and the Electoral Act. What remains is the
jurisdictional challenge, which I tackle below.
Jurisdiction of the Essential Services Committee
[36] Section 71 of the LRA empowers the ESC to designate a service as an
essential service, while section 72 of the LRA empowers the ESC to determine
a minimum service within a designated essential service. In addition, s ection 71
empowers the ESC to ratify a minimum service agreement within a designated essential service.


21 This approach w as outlined in South African Police Services v POPCRU and another [2010]
12 BLLR 1263 (LAC) where the Labour Appeal Court held that, to determine the scope of
section 71(10) one must first consider the function performed by the body or institution, because
the essential service relates to the function. The LAC held that there was a distinction between
“members” engaged under the SAPS Act and other employees engaged through the Public
Service Act. The functions of the policing, set out in the SAPS Act itself, are to be performed by
the “members” of the SAPS. Thus, the determination, in section 71(10) of the LRA, that the
SAPS is an essential service, relate s only to “members ” of the SAPS.
17

[37] Section 72(9) of the LRA describes “minimum service ” in the following
manner:

“For the purposes of this section, a ratified minimum service or
determined minimum service means the minimum number of employees
in a designated essential service who may not strike in order to ensure
that the life, personal safety, or health of the whole or part of the
popul ation is not endangered.” (own emphasis).

[38] Section 72(9) specifically provides that the “minimum service ” relates to
the minimum number of employees who may not strike to avoid a threat to life,
personal safety, or health of the whole or part of the population. In the interpretive process, the Legislature is deemed not to use superfluous
language. Accordingly, all words used in section 72(9) must be given meaning. In my view, the term “For the purposes of this section” , in subsection (9), is
reasonably capable of just one meaning - that the definition of minimum service
in subsection (9) does not apply outside of section 72.
[39] Section 73 of the LRA contains no similar qualifications to the term
“minimum service”, as contained in section 72(9) . Section 73 therefore finds
wider application. [40] In my view, s ection 73(c) and (d) includes , within its scope, “essential
services” designated as such by the ESC as well as minimum services which
fall outside the narrow scope of section 72(9).
[41] The language used, the context , and the purpose, all indicate that
section 73 grants the ESC jurisdiction to determine disputes relating to all
essential services, including services determined to be essential by virtue of
legislation – such as Parliament, the South African Police Services, and the
Electoral Commission.
Conclusion

18

[42] In the circumstances, condonation is granted for the late filing of the
review, but the application to review and set aside the ruling of the third
respondent is dismissed. There is no order as to costs.

Reynaud Daniels
Judge of the Labour Court of South Africa

Appearances :

For the Applicant
Mr S Gaju
Mdhluli, Pearce, Mdzikwa & Associates Inc
For the Fourth Respondent
Mr P Maserumule
Maserumule Attorneys