THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

REPORTABLE
Case No: JR2749/22

In the matter between:

INNOVATIVE STAFFING SOLUTIONS (PTY) LTD Applicant

and

MINISTER OF EMPLOYMENT AND LABOUR First Respondent

NATIONAL BARGAINING COUNCIL FOR Second Respondent
THE ROAD FREIGHT AND LOGISTICS INDUSTRY

REGISTRAR OF LABOUR RELATIONS Third Respondent

DEPUTY REGISTRAR OF LABOUR RELATIONS Fourth Respondent

ROAD FREIGHT ASSOCIATION Fifth Respondent

NATIONAL EMP LOYERS ASSOCIATION OF SA Sixth Respondent

CONSOLIDATED EMPLOYERS ORGANISATION Seventh Respondent

SOUTH AFRICAN TRANSPORT Eighth Respondent

AND ALLIED WORKERS UNION

MOTOR TRANSPORT WORKERS Ninth Respondent
UNION OF SOUTH AFRICA

PROFESSIONAL TRANS PORT & ALLIED Tenth Respondent
WORKERS UNION

TRANSPORT AND ALLIED WORKERS UNION Eleventh Respondent

Heard : 20 March 2025
Delivered : 3 April 2025
Summary : Application to review and set aside the determination issued by the
registrar of lab our relations in terms of section 49 (2) of the LRA.
Application dismissed with costs.


JUDGMENT


DANIELS J

Introduction

[1] This judgment relates to an application brought to review and set aside the
determination of the third and/or fourth respondent s (“registrar ” or “deputy
registrar ”) of the representativeness of the parties to the second respondent
(“Bargaining Council” or simply “Council”) and the certificate dated 9
December 2021 (“the certificate”) issued in terms of section 49(2) of the
Labour Re lations Act No. 66 of 1996 as amended (“LRA”). Alternatively, the
applicant seeks a declaration that the certificate is not a “determination” that is
contemplated by section 49(4A) of the LRA.


[2] This application was consolidated and heard together with two other review
applications . This application is concerned, in broad terms, with the issue of
the determination or certificate while the other two , under case numbers
J668/22 and JR1518/23 , are concerned with the decision of the first
respondent to extend, t o non -parties, the Main Collective Agreement (“MCA”)
of the Bargaining Council . It was common cause that all the extensions
occurred through the mechanism of section 32(2) of the LRA. For simplicity, a
separate judgment will be handed down in respect of those applications .
Despite this, the grounds of review in the application under J668/22 does
overlap with this application to some extent .

Supplementary affidavit

[3] The applicant brought a formal application seeking leave to file a
supplementary affidavit an d amend its notice of motion. In effect, through this,
the applicant sought to review and set aside a further extension1 of the MCA
of the Bargaining Council. The first and second respondents opposed the
application at the hearing, on the basis that it amo unted to a separate review
application. The applicant withdrew the application, and indicated it may
launch a further review application.

Condonation

[4] The first respondent (the “ minister ”) filed its answering affidavit a few days
late. The applicant initially objected to the late filing of the affidavit , but, at the
hearing of the matter, withdrew its objection. Condonation was therefore
unnecessary.

[5] The applicant launched this application , on 6 December 2022, to review and
set aside the decision of the deputy registrar , on 9 December 2021 , to issue

1 The applicant sought to review and set aside the minister ’s decision, to extend the period of the
Main Collective Agreement, as published in GN R4988 GG 50841 on 21 June 2024, in terms of which
the minister exten ded the period of the Main Collective Agreement to 28 February 2027.

the certificate . The applicant became aware of the certificate on 9 June 2022,
and it brought this application during the following 180 days.

[6] The 180 -day period is relevant because th is application relies o n the grounds
of review contemplated in the Promotion of Administrative Justice Act No. 3 of
20002 (hereafter “PAJA” or “ the PAJA”) read with section 158(1)(a) (iii) - (iv),
158(1)(b) and 158(1)(g) of the LRA.3 The certificate was not published in the
Gover nment Gazette (given that there is no such statutory requirement) and it
only came into the applicant’s possession when it was filed by the minister
together with the record of the review application under case number
JR668/22 .

[7] While the applicant may ha ve guessed of the existence of the certificate
earlier, it could not have known that the certificate might be problematic on its
own terms. Furthermore, there was no expeditious or guaranteed manner ,
available to the applicant , to secure the certificate before it was voluntarily
disclosed . The applicant could not reasonably have been expected to be
aware of the certificate, or the reasons for its terms, earlier than 9 June 2022 .

[8] Accordingly, the applicant acted with due expedition, and acted within the
statutory period s stipulated in section 7(1) of the PAJA . Thus, condonation for
the filing of the application is unnecessary .

Mootness

[9] A case is moot, and not justiciable, when it “ no longer presents an existing or
live controversy which should exist if th e court is to avoid giving advisory

2 Section 7(1) of PAJA states that an application to review administrative action must be brought
within 180 days of : (1) the applicant becoming aware of the administrative action and the reasons for
it, or (2) the time when the applicant might reasonably have been expected to have become aware of
the administrative action and the reasons for it.
3 It must be noted that the applicant also alleges that the determination of the registrar , or deputy
registrar , is reviewable on the basis of legality and there is no applicable time period for such review.

opinions on abstract propositions of law .”4 The question is whether the
decisions will have no practical effect or result.5

[10] In Golden Arrow Bus Services (Pty) Ltd and Another v Minister of
Employment and Labour and oth ers6 the court , per Lallie J, held that the issue
of whether the collective agreement of the Bargaining Council had been
validly extended was not moot because the obligation to pay the wage
increase, arising from the extension, was still a live issue. In t his matter, the
minister states, the applicant has already paid the monies due under the
MCA. However, the rights and duties of the applicant in relation to its
employees, as well as the Bargaining Council, remain an ongoing issue. It is
both appropriate a nd necessary that those disputes be finally resolved.

[11] In any event, mootness is not finally determinative of whether the court should
hear the dispute. The court retains a discretion to do so, and will be guided by
the interests of justice.7 Factors relev ant to the court’s discretion include the
nature and extent of the practical effect that any possible court order might
have either on the parties or on others, the importance of the issue, the
complexity of the issue, the fullness or otherwise of the argu ment advanced,
and the need to resolve disputes between different courts. As previously
mentioned, judgment in two other review applications are pending, both of
which challenge the lawfulness of various extensions of the MCA, by the
minister , to non -parties. The lawfulness of the certificate is a fundamental
consideration in those applications. The minister and the registrar , key role
players in relation to the extension of collective agreements, require clarity as
to the position of this court relating to the lawfulness of the process prior to the
determination of representativeness made by the registrar in terms of section
49 of the LRA .


4 National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and others
[2000] JOL 5877 (CC)
5 Agribee Beef Fund (P ty) Ltd and another v Eastern Cape Rural Development Agency and another
[2023] JOL 57428 (CC)
6 (C 409/2021) 2023 ZALCCT 17 (4 May 2023) ; (2023) 44 ILJ 1715 (LC)
7 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11; MEC
for Education, Kwa -Zulu Natal, and Others v Pillay 2008 (1) SA 474 (CC) at para 32

[12] At court, during the extension review under J668/22, the applicant became
aware of a certificate of representatives w hich had been issued by the
registrar earlier this year . The applicant advised the parties and the court that
it was likely to review the issuing of that certificate as well. In the
circumstances, the manner in which the registrar discharges his or her
function in relation to the determination of representativeness, as
contemplated in section 49, remains a live issue between the parties. This
judgment will impact on the conduct of the parties to the Council, the conduct
of the minister , and the registrar , in relation to similar issues .

[13] In light of the above circumstances , I do not believe that the dispute is moot.
Even if this is incorrect, the interests of justice dictate that the dispute be
heard. T he dispute raises issues of substantial importance to th e parties to
this dispute , as well as to the labour fraternity more generally. The
determination made by the registrar , in terms of section 49, are central to the
exercise of the minister ’s function in extending collective agreements of the
Bargaining Coun cil. The extension of such agreements, in turn, are essential
to one of the primary objects of the LRA - namely the promotion of collective
bargaining at sectoral level. The learned academic Prof Du Toit
acknowledged that it is difficult to conceive of cen tralised bargaining in any
form without a mechanism for the extension of collective agreements.8

Factual background

[14] The factual background to the dispute is as follows :

14.1 The Bargaining Council referred a demarcation dispute to the CCMA on
30 October 20 18 requesting an award that the applicant fell within its
registered scope. On 2 March 2021, the CCMA commissioner found that
the applicant was a temporary employment service and part of its
operations fell within the scope of the Bargaining Council. As a result, the
applicant was required to register with the Bargaining Council and comply

8 Prof D Du Toit “ The Extension of Bargaining Council Agreements : Do the Amendments Address the
Constitutional Challenge?” (2014 ) 35 ILJ 2637 at 2643

with collective agreements of the Council which had been or would be
extended to non -parties. The applicant launched an application to review
and set aside the demarcatio n award under case number JR510/2021.

14.2 The demarcation award led to a flurry of court applications:

14.2.1 The applicant launched a further application, under case number
JR482/21, to stay the demarcation award pending the review. A
court order was granted by agreement (on 11 May 2021) between
the parties in terms of which the demarcation award would be
stayed, pending the determination of the application under
JR510/2021, but the applicant would comply with certain
provisions of the MCA and submit returns to t he Council
demonstrat ing compliance.

14.2.2 The applicant launched a further application, under case number
J1428/2021 , seeking an order inter alia declaring that it had
complied with the court order of 11 May 2021.

14.2.3 The applicant launched a further application, under case number
J1380/2021, seeking a court order inter alia interdicting the
Council from representing to any of the applicant’s clients that it
was acting in breach of the court order dated 11 May 2021 and
that a writ of arrest had been issued for the director of the
applicant regarding his alleged refusal to register the applicant
with the Bargaining Council. The Council opposed the application
and brought a counter application seeking a court order inter alia
interdicting the applicant from holding o ut to any employers in the
road freight industry that the applicant is entitled not to comply
with the MCA and that if they engage the services of the applicant
their employees would not longer be subject to the MCA. The
application came before my sister, Mahosi J, on 16 November
2021 who delivered her judgment a short while later.


14.2.4 The court dismissed the application and pending the final
determination of the application under JR510/21, granted the
relief sought by the Bargaining Council. In effect, the ap plicant
was ordered to comply with the MCA, and to refrain from advising
employers in the road freight industry that the applicant was
entitled not to comply with the MCA.

14.2.5 The applicant’s application for leave to appeal against the
judgment of Mahosi J was dismissed, and its petition to the
Labour Appeal Court was dismissed. Its subsequent application
for leave to appeal to the Constitutional Court was also dismissed.

14.3 Several years earlier, the minister had issued a letter to Ms Ngwetjana
appointing her as the deputy registrar and requested her “ to perform all
functions assigned to this position in the absence of the Registrar of
Labour Relations .”9 In these proceedings, we are concerned with the
conduct of the deputy registrar and the determinations mad e by her. In
what follows, any reference to registrar includes the deputy registrar .

14.4 On 9 December 2021, the deputy registrar signed a certificate, in terms of
section 49(2) of the LRA, which reads:


9 Section 10 8(2) of the LRA states: (a) The minister may designate any number of officials in the
Department as deputy registrar s of labour relations to assist the registrar to perform the function of
the registrar in terms of this Act. (b) A deputy registrar may exer cise any of the functions of the
registrar that have been generally or specifically delegated to the deputy .


















14.5 It bears noting that the certificate relates to the representativeness of the
parties, to the Bargaining Council, in relation to the scope of the MCA.

14.6 On 10 February 2022, the minister extended the period of the MCA to 29
February 2024, by publication in GG 45897 GN813 .

14.7 On 11 February 202 2, the minister extend ed the MCA to non -parties until
29 February 2024 by publication in GG 45905 GN831 .

14.8 The minister ’s extension of the period of the MCA and its extension to
non-parties led the applicant to file the review application under case
number J668/22. The minister relied on the certificate to do so .
DEPARTMENT OF LABOUR
CERTIFICATE OF REPRESE NTATIVENESS
OF PARTIES TO A COLLECTIVE AGREEMENT

National Bargaining Council for the Road Freight
and Logistics Industry

In terms of section 49(2) of the Labour Relations Act, 1995, I am
satisfied that the parties to your Council’s Main Agreement are
representative and will be regarded as such until 31 December 202 3

1. On 7 December 2021 there were 108 673 employees
employed within the scope of the Collective Agreement.

2. On 7 December 2021 there were 26 827 members of the
trade unions to the Council tha t were employed within the
scope of the Collective Agreement.

3. On 7 December 2021 there were 60 555 employees
employed within the scope of the Agreement by members
of the employers’ organisations, party to the Collective
Agreement.


Date: 9 December 2021

Reference number: 2/6/6/55

Deputy Registrar of Labour Relations


Determination of representativeness

[15] In this dispute , the minister filed a joint answering affidavit with the registrar .

[16] The minister and the registrar state d that determinations, or certificat es, are
made and issued following an intensive process of investigation , by the
registrar , which takes several weeks .10 The process was explained as follows:

16.1 The registrar attends the offices of the Bargaining Council, the employer
organisations, and the t rade unions to conduct investigations . The visits
are pre -arranged to ensure that the organisations are properly prepared.

16.2 During the investigation , the registrar meets with the officials of these
organisations to conduct a verification exercise. The registrar inspects the
membership figures, which are presented by means of projector. The
registrar considers discrepancies or other issues of interest, and calls for
explanations, wherever necessary, from those officials who present on
behalf of the organisat ion.

16.3 The registrar inspects the subscriptions paid by the members of the
organisation and inspects any other information he or she deems relevant.
The focus is always on the year in which the inspection is conducted.

16.4 After the inspection is conducted, t he registrar compiles a preliminary
report and presents this to the Bargaining Council, and the parties to the
Council, for comment. Sometimes these comments lead to the submission
of further information to the registrar .

16.5 Thereafter, a final determination is made by the registrar , in the form of
the certificate .


10 The process was set out in the minister ’s answering affidavit in paras 32 – 50 of the extension
review (under case number J668/22) and incorpora ted by reference in the answering affidavit of this
application. The deputy registrar filed a confirmatory affidavit in the extension review confirming the
process followed.

[17] The registrar explained the investigative process conducted prior to the issue
of the certificate relevant to this application. The registrar attended the offices
of the Bargaining Council, as we ll as the various employer organisations
(namely the fifth, sixth , and seventh respondents) to conduct the verification
exercises. There were four meetings , held over the period from 2 to 25
November 2021 . A preliminary report was sent to the Bargaining Co uncil,
which accepted the figures on 1 December 2021. On 9 December 2021, the
deputy registrar issued a determination in the form of the certificate , which
was sent to the Bargaining Council.

[18] The applicant, in its replying affidavit, states that it has no knowledge of the
process and heard of the process, for the first time, upon perusing the
answering affidavit s of the minister and the registrar in J668/22 . The applicant
stated that, in the absence of a confirmatory affidavit from the registrar , it
denie d the investigative process (alluded to above) was conducted. The
confirmatory affidavit of the deputy registrar was subsequently filed.
Accordingly, the process conducted by the registrar , or the deputy registrar ,
set out in para 17 above, is not in disput e. This put s an end to the applicant’s
argument that the registrar merely rubber stamped the data from the
Bargaining Council.

Legal basis of challenge to section 49 determination

[19] It is trite that the grounds of review must be pertinently set out in th e
applicant’s founding and supplementary affidavits.11

[20] As previously explained, this application is brought on the grounds set out in
PAJA , alternatively, the principle of legality. This is permissible because this
court has the power to review the perfor mance or purported performance of
any function provided for in the LRA on any grounds that are permissible in
law.12

11 Communication Workers Union and others v SA Post Office Ltd and others (2013) 34 ILJ 626 (LC)
at paras 35 , 36 and 3 9
12 Section 158(1)(g) of the LRA


[21] The grounds of review in PAJA ,13 which applies only to the review of
administrative action, are extensive. However, in relation to legislat ive and
executive acts, which are not 'administrative action', the more limited principle
of legality applies , this principle being implicit in the content and design of our
Constitution. The principle of legality permits review of all public power on the
basis of rationality ,14 bad faith, or that such power is ultra vires the
empowering statute.15 Rationality requires that the exercise of public power
may not be arbitrary and the exercise of such power must be rationally related
to the purpose for which the power was given - which requires an objective
enquiry.16

[22] If the determination by the registrar constitutes administrative action, and the
grounds of review applicable under PAJA are available to the applicant, there
is no need to decide the application under the principle of legality.

[23] In my view, the issuing of the determination, by the registrar, falls neatly within
the definition of administrative action as contemplated by section 1(a) of
PAJA. However, even if the registrar is not an organ of state, then the

13 Section 6(1) of PAJA permits the review of administrative action if the administrator: (a) (i) was not
authorised to do so by the empowering provision; (ii) acted under a delegation of power which was
not authorised by the empowering provision; or (iii) was biased or reasonably suspected of bias; (b) a
mandatory and material procedure or condition prescribed by an empowering provisi on was not
complied with; (c) the action was procedurally unfair; (d) the action was materially influenced by an
error of law; ( e) the action was taken - (i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive; (iii) because irrelevant considerations were taken into account
or relevant considerations were not considered; (iv) becau se of the unauthorised or unwarranted
dictates of another person or body; (v) in bad faith; or (vi) arbitrarily or capriciously; (f) the action itself
- (i) contravenes a law or is not authorised by the empowering provision; or (ii) is not rationally
connected to - (aa) the purpose for which it was taken; (bb) the purpose of the empowering provision;
(cc) the information before the administrator; or (dd) the reasons given for it by the admi nistrator;
(g) the action concerned consists of a failure to take a decision; (h) the exercise of the powe r or the
performance of the function authorised by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable that no reasonable person could
have so exercised the power or performed the function; or (i) the action is otherwise unconstitutional
or unlawful.
14 Rationality requires that the exercise of public power must not be arbitrary. Such decisions must be
rationally related to the purpose for which the power was given, which calls for an objective enquiry .
See Pharmaceutical Manufacturers Association of SA and Another: In Re Ex Parte President of the
RSA and others 2000 (2) SA 674 (CC) at paras 85 and 86
15 Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012
(3) SA 486 (SCA) paras 28 – 30
16 Pharmaceutical Manufacturers Association of SA and Another: In Re Ex Parte President o f the
Republic of South Africa and others 2000 (2) SA 674 (CC) at paras 85 and 86

determination falls neatly within the definition in section 1(b) of PAJA. It is
clear that the determination by the registrar adversely affects the rights of any
person and has a direct, external legal effect. Our courts have stated that
administrat ive action is “… in general terms, the conduct of the bureaucracy
(whoever the bureaucratic functionary might be) in carrying out the daily
functions of the state which necessarily involves the application of policy,
usually after its translation into law, with direct and immediate consequences
for individuals or groups of individuals ”.17

[24] In the circumstances, this application will be determined on the basis of the
grounds of review applicable under PAJA.

[25] The grounds of review, articulated in the founding and supplementary
affidavits , are that:

25.1 The applicant contend s that the registrar, or deputy registrar, rubber
stamped the data or information submitted to him or her by the Bargaining
Council.18 Given what is set out in paras 17 and 18 above , this need not
be debated further . The argument lacks cogency .

25.2 The applicant submitted that the certificate was not properly issued
because it was not issued by the registrar but by the deputy registrar.19
This issue was not actively pursued during argument, in ligh t of the letter
from the minister delegating the functions of the registrar to the deputy
registrar. In any event, section 108(2) of the LRA is broad and entitles the
deputy registrar to assist the registrar to perform the functions of the
registrar. In li ght of the contents of section 108(2), I consider this
argument frivolous and will not entertain it further .


17 Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) SA
313 (SCA) at para 24
18 Founding Affidavit at para 49
19 Founding Affidavit at para 52

25.1 The applicant contends, in its founding affidavit, that the certificate is not a
“determination”20 by the registrar because the determination is ma de prior
to the certificate, alternatively the certificate only reflects the outcome of
the determination.21 The minister and the registrar both confirm that the
certificate is the determination of representativeness. It is artificial, in the
extreme, to sa y that the determination was made prior to the issue of the
certificate. In any event, the applicant does not explain when the earlier
determination was made, or how this differed to the certificate. In the
result, the argument is frivolous and cannot be e ntertained.

25.2 The applicant contends that the certificate was issued under the wrong
section.22 The applicant contends that the determination should have
been issued under section 49(4A)(a) but was issued under section 49(2)
of the LRA. This is considered below and will be referred to as “the first
ground .”

25.3 The certificate is invalid because it is inconsistent with the figures
provided to him by the Bargaining Council in the request for extension .23
This was irrational, alternatively capricious. This too is addressed below
and will be referred to as “the second ground .”

25.4 The registrar was required to make a determination inter alia by reference
to various public databases and other independent sources .24 This will be
referred to as “the third ground .”


20 Under section 49(4A)(a) of the LRA
21 Founding Affidavit at para 42.1, read with Supplementary Affidavit at para 10
22 Heads of Argument at para 121
23 Founding Affidavit at para s 43 and 44; Supplementary Affidavit at para 10
24 The applicant contends that the registrar ought to have regard to data and information available
from Statistics South Africa, the register of the Unemployment Insurance Fund, the register of the
Compensation Commi ssioner, the register of the SETA, the South African Labour Force Surveys,
SANRAL, information from the companies operating the tolls, and possibly even the traffic department
which keeps data on the number of trucks on the road and the number of public dr iving permits
issued. In addition, the applicant conducted its own investigation which it contends demonstrates that
the total number of employees in the industry is 300 890 employees, a far cry from the number in the
certificate – 108 673 employees.

25.5 The pro cess was unfair, and unlawful, because the registrar did not invite
non-parties to make representations.25 This will be referred to as “the
fourth ground .”

The broader statutory framework and context

[26] Sectoral bargaining, and the promotion of sectoral bar gaining , lies at the heart
of the LRA .26 The LRA seeks to provide a framework whereby both employers
and employees and their organisations can participate in collective bargaining
and the formulation of industrial policy. Our courts, at the highest level, h ave
recognized that the LRA seeks to promote orderly collective bargaining with an
emphasis on bargaining at sectoral level, employee participation in decisions in
the workplace, and the effective resolution of labour disputes.27

[27] Through the LRA, the legis lature has, unashamedly , embrace d collective
bargaining based on majoritarian principles. In Kem-Lin Fashions CC v Brunton
& another28 Zondo JP (as he was then) held:

“The legislature has also made certain policy choices in the Act which
are relevant to th is matter. One policy choice is that the will of the
majority should prevail over that of the minority. That is good for orderly
collective bargaining as well as for the democratization of the
workplace and sectors. A situation where the minority dictates to the
majority is, quite obviously, untenable. But also a proliferation of trade
unions in one workplace or in a sector should be discouraged. There
are various provisions in the Act which support the legislative policy
choice of majoritarianism .”

[28] Addit ionally, it must be noted, t he LRA is specifically designed to give
legislative effect to our international treaty obligations arising from our

25 Supplementary Affidavit at paras 24 and 47.2
26 Section 1(d)(ii) of the LRA; see also AMCU v Chamber of Mines & Others (2017) 38 ILJ 831 (CC) at
para 44
27 National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another 2003
(3) SA 513 (CC) at para 26
28 (2001) 22 ILJ 109 (LAC)

membership of the International Labour Organisation ( “ILO”) and the
ratification , by South Africa, of its conven tions. These international obligations
are of significance to the interpretation of the LRA.29

[29] Extension through the mechanism of section 32(2) has aptly been described as
non-discretionary and mechanical.30 In respect of such extensions, the minister
is obliged to extend the collective agreement submitted to him by the
bargaining council provided that the statutory preconditions are met. This
includes the requirements that the thresholds in section 32(1)(a) and (b) are
met, and the minister is satisfied th at the requirements in section 32(3) (a) to (g)
are met.

[30] In respect of an extension of a collective agreement through section 32(3)(b)
Valuline CC v Minister of Labour and others31 held that the minister was
required to “do the maths” in order to objectiv ely determine if the required
thresholds in section 32(3)(b) were met.32 That case, heard and determined
before the 2018 amendments to the LRA were even contemplated , considered
provisions of the LRA which required the minister to satisfy himself that the
parties to the Bargaining Council had met the required representativeness
thresholds.

[31] Of importance in this matter is section 32, particularly section 32(3), and section
49.

[32] Section 32(3)(b) requires that the minister must be “satisfied” that:

“(i) The r egistrar in terms of section 49(4A) has determined that the majority of
all employees who, upon the extension of the collective agreement, will fall
within the scope of the agreement, are members of the trade unions that
are parties to the bargaining counc il; or


29 Section 1(b) of the LRA
30 Free Market Foundation v Minister of Labour and others (2016) 37 ILJ 1638 (GP)
31 [2013] 6 BLLR 614 (KZP) at para 67
32 See Free Market Foundation (fn. 25) at para 84

(ii) The registrar in terms of section 49 (4A) has determined that the members
of the employer organisations that are party to the bargaining council will,
upon the extension of the collective agreement, be found to employ the
majority of all empl oyees who fall within the scope of the agreement .” (own
emphasis)

[33] Section 49 provides:

“(1) When considering the representativeness of the parties to a council, or
parties seeking registration of a council, the registrar, having regard to the
nature of t he sector and the situation of the area in respect of which
registration is sought, may regard the parties to a council as representative
in respect of the whole area, even if a trade union or employers'
organisation that is a party to the council has no m embers in part of
that area.

(2) A bargaining council, having a collective agreement that has been extended
by the Minister in terms of section 32, must inform the registrar annually, in
writing, on a date to be determined by the registrar as to the infor mation
specified in subsection (3) and the number of employees who are -
(a) covered by the collective agreement;
(b) members of the trade unions that are parties to the agreement;
(c) employed by members of the employers' organisations that are
party to the agreement.

(3) A bargaining council other than one contemplated in subsection (2) must on
request by the registrar, inform the registrar in writing within the period
specified in the request as to the number of employees who are -
(a) employed within the registered scope of the council;
(b) members of the trade unions that are parties to the council;
(c) employed by members of the employers' organisations that are
party to the council.


(4) A determination of the representativeness of a bargaining council in terms of
this section is sufficient proof of the representativeness of the council for the
two years following the determination for any purpose in terms of this Act,
including a decision by the Minister in terms of sections 32 (3) (b), and 32
(5).

(4A) A determination made by the registrar in terms of -

(a) section 32 (3) (b) is sufficient proof that the members of
the employer organisations that are party to the bargaining
council, upon extension of the collective agreement, employ t he
majority of the employees who fall within the scope of that
agreement; and

(b) section 32 (5) (a) is sufficient proof that the parties to the collective
agreement are sufficiently representative within the registered
scope of the bargaining council. ”

[34] The Labour Relations Amendment Act No. 8 of 2018 amended various sections
of the LRA including sections 32 and 49. This application requires that the court
consider the purpose of these amendments. It is trite that the court may have
regard to so -called “ preparatory documents” ( travaux preìparatoires ) to discern
the purpose of statutory provisions.33 It is fitting to consider the purpose of the
2018 amendments as informed by the Memorandum on the Objects of the
Labour Relations Amendment Bill, 2017.

[35] Of imp ortance, for our purposes, the 2018 amendments had the following
impact:

35.1 The LRA no longer required that the minister must be satisfied that the
representativeness thresholds in section 32(3)(b) are indeed met. Instead,
the minister must be satisfied tha t the registrar has decided the

33 Mansingh v G eneral Council of the Bar & others [2013] ZACC 40; 2014 (2) SA 26 (CC) at para 27

representativeness of the parties to the Council, and their
representativeness in relation to the scope of the collective agreement to
be extended.

35.2 The legislature removed the requirement that the minister must be
satisfie d that the parties to the Council met the representativeness
thresholds. The legislature wanted to remove any opportunity for
disgruntled employers to frustrate the extension of collective agreements
by demanding exacting and onerous standards for verifica tion, or
authentication, of representativeness.

35.3 In Bargaining Council for the Building Industry (Cape of Good Hope) v
Minister of Employment and Labour34 the court, per my brother Lagrange
J, was concerned with a review of the minister’s decision not to e xtend a
collective agreement in terms of section 32(5) of the LRA. The court
pointed out, at para 42, a fundamental error in the minister’s reasoning.
The minister erroneously believed that he must still determine if the
Bargaining Council was sufficiently representative when the registrar’s
determination was dispositive of the issue. I align myself with the
statements by the learned Judge in para 42.

35.4 The conjunction “and” between sections 32(3)(b)(i) and (ii) was changed
to “or”. This meant the thresholds for representativeness, for the purposes
of section 32(2) extensions, could rely either on the membership of the
union parties to the Council, or the number of employees engaged by the
employer organisations who are party to the agreement. As explained in
the Memorandum, the principle “ is now one of coverage rather than strict
representativeness .”

35.5 Section 49(4) was amended to make it clear that determinations by the
registrar were sufficient proof of representativeness for the purposes of
extensions under section 32(3)(b) and 32(5).

34 [2023] 8 BLLR 755 (LC)


35.6 Section 49(4) was also amended to provide that the period of the
determinations would be valid for two years and not only one. The
Memorandum explained that it was not the intention of the LRA to require
determinations by the registrar every time that collective agreements are
to be extended.

[36] It is clear that the purpose of the amendment s was to make extensions of
bargaining council agreements less onerous, in order to achieve one of the
primary objects of the LRA – the promo tion of sectoral bargaining.

[37] There are two kinds of determinations of representativeness that are
contemplated by section 32, read with section 49, of the LRA :

37.1 The first kind, contemplated by section 49(4A)(a) relates to a
determination, by the registr ar, that: (i) the members of the employers'
organisations that are parties to the bargaining council will, upon the
extension of the collective agreement, be found to employ the majority of
all the employees who fall within the scope of the collective agre ement;
and/or (ii) the majority of all employees who, upon extension of the
collective agreement, will fall within the scope of the agreement, are
members of the trade unions that are parties to the bargaining council;

37.2 The second kind, contemplated by sec tion 49(4A)(b), relates to a
determination, by the registrar , that the parties to the bargaining council
are sufficiently representative within the registered scope of the
bargaining council.

[38] For the purposes of this judgment, following is notable:

38.1 Section 32(3)(b) states that the registrar acts “in terms of” section 49(4A)
when he determines representativeness of the parties to the Council .
Confusingly, section 49(4A) refers to a determination made by the
registrar “in terms of” section 32(3)(b) and 32 (5)(a).


38.2 Section 49(2) requires Bargaining Councils, which have had their
collective agreement (s) extended, to submit information, annually, to the
registrar regarding the representativeness of the parties to the Council.
However, such information must al so include the total number of
employees covered by the extended collective agreement , the number of
such employees who are also members of the union parties to the
agreement, and the number of such employees who are employed by
members of the employers’ o rganisations that are party to the agreement .

38.3 Though s ection 49(2) makes no reference to the determination of
representativeness by the registrar , and relates solely to the submission
of information to the registrar , this information assist s the registra r to
make a determination in terms of section 49(4A).

[39] Thus, in respect of Bargaining Councils which have their collective agreements
extended, the Council must annually submit to the registrar such information
necessary for him to determine the represent ativeness of the parties to the
Council, as well as their representativeness in relation to the extended scope of
the collective agreement .

[40] Aside from the other statutory requirements, to lawfully effect an extension of a
collective agreement , through se ction 32(2), the registrar must “determine” the
representativeness of the parties to the Council , while the minister must be
“satisfied” that the requirements of section 32(1) and (3) are met . In the
circumstances, the minister must be satisfied that the registrar has indeed
determined “ representativeness ” as contemplated by section 32(3(b). The
minister is not required to determine the correctness of the determination. The
minister is not required “to do the maths .”

[41] The language, context, and purpose all indicate that the word “satisfy” in
section 32(3) insofar as it relates to the representativeness of the parties, for
the purposes section 32(3) (b), relates to a subjective jurisdictional fact , and the

minister is only required to satisfy himself that the registrar has made a
determination in terms of section 49(4A)(a) .35

First review ground: was the certificate was issued under the wrong section?

[42] The applicant contends that the certificate issued by the registrar was issued in
terms of the wrong sectio n because it was issued under section 49(2) instead
of section 49(4A)(a). The applicant does not allege that this error was
deliberate or male fide, nor does it allege that the registrar is not empowered by
the statute to make such a determination.

[43] There is no requirement for the registrar to precisely state the section or
subsection under which his determination was made. Section 49(4) refers to a
determination of representativeness of a bargaining council “in terms of this
section”. Accordingly, it appe ars, the determination may be issued in terms of
section 49(2) or section 49(4A). What matters is the content of the
determination, its substance, not its form. Indeed, this court dismissed a similar
argument in Golden Arrow Bus Services .36

[44] Additionally, i t must be noted, the court disposed of a similar argument in
Howick District Landowners Association v Umgeni Municipality and Others37
where SCA stated: “ Under the doctrine in Latib's case, where an empowering
statute does not require that the provision in terms of which a power is
exercised be expressly specified, the decision -maker need not mention it.
Provided moreover that the enabling statute grants the power sought to be
exercised, the fact that the decision -maker mentions the wrong provision does
not invalidate the legislative or administrative act .” In the circumstances, this
ground of review lacks substance .

Second review ground: certificate inconsistent data from Bargaining Council?

35 See Kimberley Junior School and another v Head, Northern Cape Education Department an d
others 2010 (1) SA 217 (SCA) at para 13; see also South African Defence and Aid Fund and Another
v Minister of Justice 1967 (1) SA 31 (C) at 34 – 35.
36 See fn. 6 at para 24
37 2007 (1) SA 206 (SCA) at para 19


[45] The applicant submits that the determination, or certificate, w as irrational
because the figures on the certificate are inconsistent with the figures provided
by Bargaining Council in its subsequent request for extension. As a matter of
logic, the certificate does not become invalid merely because subsequent
figures in a different document differ s. In any event, in its answering affidavit,
the minister explained that the determination (i.e. the certificate) is followed by
a request for extension. The figures in the request may be different from those
in the certificate because time has passed since the determination. As a result,
it is common for the figures to vary. This ground too is flimsy.

Third review ground: No consideration of independent/public sources of data?

[46] The applicant contended that the registrar must have regard to public
databases and independent sources before making any determination. There is
no such requirement in the LRA , and the court cannot read in such a
requirement. The legislature saw fit not to prescribe to the registrar how to
make such de termination. The doctrine of separation of powers compel our
courts to respect that decision.38

[47] In any event, as previously explained, the purpose of the 2018 amendments
was to make the determination of representativeness, in the context of
extensions of Bargaining Council agreements, less onerous.

Fourth review ground: The process was unfair and unlawful because the registrar did
not invite non -parties to make representations?


38 See International Trade Administration Com mission v Scaw SA (Pty) Ltd 2012 (4) SA 618
(CC) where the Constitutional C ourt said: “[95] Where the Constitution or valid legislation has
entrusted specific powers and functions to a particular branch of government, courts may not usurp
that power or fu nction by making a decision of their preference. That would frustrate the balance of
power implied in the principle of separation of powers. The primary responsibility of a court is not to
make decisions reserved for or within the domain of other branches of government, but rather to
ensure that the concerned branches of government exercise their authority within the bounds of the
Constitution. This would especially be so where the decision in issue is policy -laden as well as
polycentric. ”

[48] The applicant contends that sections 3 and 4 of PAJA provides for the right t o
make representations and for a consultation process. Accordingly, so the
applicant submits, the registrar was obliged to invite and consider
representations from non -parties or other potential affected parties. This
argument has no merit for the reasons which follow :

48.1 The submission ignores section 3(2)(a) of PAJA which states that a fair
administrative procedure depends on the circumstances of each case.
The applicant made out no case as to why, on the facts of this matter,
fairness require s the registr ar to invite representations from the public, or
affected parties.

48.2 The LRA does not require any representation process prior to a
determination by the registrar in terms of section 49. Despite this, the
applicant pertinently refrained from any challenge to the constitutionality of
the relevant provisions in the LRA. In any event, even if there was a
conflict between the PAJA and the LRA, which is incorrect, section 210 of
the LRA provides that (where there is a conflict relating to the matters
dealt with in the LRA and the provisions of any other law save the
Constitution or any other Act expressly amending the LRA) the provisions
in the LRA must prevail.

48.3 The extension process can become derailed by a representations
procedure , which could undermine coll ective bargaining at sectoral level.
For similar reasons, the kind of process proposed by the applicant, was
rejected in para 19 of Golden Arrow Bus Services39 albeit that there the
court was concerned with whether the minister should invite
representations before extending a collective agreement through section
32(2) .


39 See full citat ion in fn. 6

[49] In the circumstances, as explained above, there is no requirement that the
registrar must invite comment and representations before making any
determination under section 49(4A)(a).

[50] For th e reasons already explained, the process used by the Registrar to make
the determination was rationally connected to the purpose of the determination
and the process was fair. It was not irrational , unfair, or capricious. Thus, the
applicant’s submission lacks substance .

[51] There has been an academic article suggest ing that the LRA ought to
incorporate a requirement that , prior to the extension of a collective agreement,
the employers, and workers to whom the agreement would be made applicable
through extens ion, should be given an opportunity to comment . The article
relies on article 5 of the ILO Recommendation (No. 91 ) on Collective
Agreements .40 Such recommendations are persuasive , and non -binding. The
article fails to consider how a requirement for represen tations, in the context of
section 32(2) extensions, could be used to derail extensions. Even if the
suggestion can somehow be reconciled with the purpose of the 2018
amendment s, which is denied , such a requirement s cannot implied into the
legislation. For this court to do so would be in violation of the separation of
powers.

Conclusion

[52] As explained above, none of the grounds of review have merit. The application
falls to be dismissed.

Costs

[53] I was urged by the first and second respondents to make a c ost order against
the applicant because the application was brought in bad faith and the
applicant misrepresented the facts. The applicant, on the other hand, argued

40 M Kriek, S Van Eck “ The Extension of Bargaining Council Agreements: What Guidelines Can South
Africa Gain from the International Labour Organisation? ” (2010) 41 ILJ 71

that there should be no costs because the matter concerned a novel issue. It
is trite that costs in labour matters do not follow the result but costs orders
must be made where required by law and fairness . I agree that the matter is a
novel , given that there are few authorities relating to the procedure to be
followed in relation to determinati ons made by the Registrar . However , I must
also take into consider ation that the applicant omitted to draw the court’s
attention to provisions in the statute and authorities41 which did not support its
argument . Furthermore, several of the challenges to the determination of the
registrar were frivolous , and lacking in substance. Accordingly, law and
fairness dictates that the applicant must bear the costs of the first, second and
third respondents .

Order

[54] In the circumstances, for the reasons set out abo ve, I make the following
order:

54.1 The review application is dismissed,

54.2 The applicant is ordered to pay the costs of first, second , third and fourth
respondents, including the costs of two counsel .



Reynaud Daniels
Judge of the Labour Court of South Afric a


Appearances :

For the Applicant :

41 Bargaining Council for the Building Industry (Cape of Good Hope) v Min ister of Employment and
Labour (cited in fn. 26 ); Golden Arrow Bus Services (Pty) Ltd and Another v Minister of Employment
and Labour and others (cited in fn. 6)

Adv Boda SC with Adv R Itzkin and Adv Karim
Instructed by Hanelle Vrey Inc

For the First, Third and Fourth Respondent s:
Adv L Kutumela and Adv M Mguta
Instructed by State Attorney

For the Second Respondent:
Adv H Barnes SC and Adv A Pillay
Tricker Inc