THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
REPORTABLE
Case no: 2025 – 076663
In the matter between:
MVELATRANS (PTY) LTD t/a BOJANALA BUS SERVICES Applicant
and
DEMAWUSA First Respondent
MEMBERS OF THE FIRST RESPONDENT Second to Further Respondent s
WHOSE NAMES APPEAR ON ANNEXURE A
Heard: 13 June 2025
Delivered: 20 June 2025
Summary : Application for interim interdict against strike action. Requirements not
fulfilled and application dismissed.
JUDGMENT
DANIELS J
2
Introduction
[1] This matter came before me on 13 June 2025 as an opposed application,
brought by the applicant to interdict strike action by the respondents. The application was brought in terms of s ection 68(1) of the LRA , notice of the application having
been given in terms of section 68(2) . The matter was argued on the basis of interim
relief being sought by the applicant , though the heads presented by the applicant
argued for final relief.
[2] When seeking interim relief applicant must show, as was said in National
Council of Societies for the Prevention of Cruelty to Animals v Openshaw
1 the
following: (a) A prima facie right , which requires proof of facts that establish the right
under substantive law; (b) A well -grounded apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is eventually granted; (c) The
balance of convenience favours the granting of an interim interdict; (d) The applicant
has no other satisfactory remedy. For reasons which will become clear, I need
consider only whether the applicant has demonstrated a prima facie (or final) right.
[3] The first respondent argued that the applicant failed to satisfy the
requirements of urgency as contemplated by Rule 38. I can not agree. The
requirements of urgency are aptly set out in Association of Mineworkers &
Construction Union & others v Northam Platinum Ltd & another
2 and I believe thos e
requirements are satisfied.
[4] The first respondent moved a counter application, brought to declare clause
18.3.1 of the Main Collective Agreement of the South African Road Passenger Bargaining Council to be unconstitutional. I intend writing a separate judgment in relation to that matter.
Material facts
1 2008 (5) SA 339 (SCA) at para 20
2 (2016) 37 ILJ 2840 (LC) at paras 20 – 26
3
[5] The facts are largely common cause:
5.1 The applicant operates a bus transportation services in Rustenburg,
Northwest Province. It provides transport services to members of the public,
and transports approximately 15 000 members of the public daily.
5.2 The applicant operates from two sites, and employs approximately a
large number of bus drivers, many of whom are members of the first respondent.
5.3 The applicant falls within the scope of the South African Road
Passenger Bargaining Council (“SARPBAC” or “Bargaining Council” ). The
terms and conditions of employment of the employees of the applicant are
governed by the Main Collective Agreement (“MCA”) of SARPBAC. The trade union parties to SARPBAC include several trade unions, but do not include the first respondent.
5.4 Annexure B to the Constitution of the SARPBAC (“Annexure B”)
contains the dispute resolution procedure. Clause 18.3 thereof states:
“18.3 If conciliation fails to resolve a dispute of interest that has been
referred to SARPBAC in terms of Clause 4 of this appendix and a
certificate has been issued by the Commissioner stating that the
dispute has not been resolved then: -
18.3.1. after a cooling- off period of thirty (30) days from the date of
such certificate, or any extension of this period agreed to between the
parties to the dispute. 18.3.2. every employee, involved in the dispute who has the right to
strike in terms of Section 64 of the Act, may embark on such strike
action subject to at least forty -eight (48) hours’ written notice of the
commencement of such strike action being given to the Employer that
is party to the dispute or, where more than one Employer is party to the same dispute, to SARPBAC and to the Employers’ Organisation to which such Employers are members. ” (own emphasis)
4
5.5 On 2 February 2025, the first respondent referred its dispute to
conciliation before the Bargaining Council . The dispute contained the following
demands:
1. Improvement of sleeping ground conditions
2. Tracking of drive (“demand two”)
3. Reimbursement of over taxation on bonuses
4. Weigh machines and emergency tickets
5. Compulsory airtime and data to drivers (“demand five”)
6. Stoppage on blacklisting of dismissed workers
7. Poor bus conditions
8. Expired bus driving permits
9. Transporting of bus drivers after work (“demand nine”)
10. Removal of Mr . Blessing Nkosi and Mr . Phithlo (“demand ten”)
5.6 On 7 April, the first respondent issued a notice of strike action
informing the applicant of its intention to commence with strike action on 9
April. When the applicant’s attorneys advised the first respondent that the
strike would be unprotected, the first respondent agreed to suspend its strike
until further notice.
5.7 The dispute was conciliated, on 2 May, but remained unresolved after
conciliation. A certificate of outcome of conciliation was issued by the Bargaining Council on 12 May.
5.8 At conciliation, the applicant raised two jurisdictional issues relating
primarily to two of the demands, namely, the demand in relation to the
transport of bus drivers after work (demand nine) and the removal of Messrs. Nkosi and Phithlo (demand ten). The applicant contended inter alia that
demand number nine was a substantive issue and could only be negotiated at
industry level through the Bargaining Council, and demand ten was an unreasonable or unlawful demand.
5
5.9 The panelist conducting the conciliation on behalf of the Bargaining
Council issued a jurisdictional ruling on 12 May. In his ruling, the panelist
found that applicant’s contentions in relations to demands nine and ten had
merit. He therefore refused to issue a certificate of outcome of conciliation in
relation to those two demands. 5.10 On 21 May, the first respondent filed a review application to review and
set aside the jurisdictional ruling.
5.11 On 23 May, the first respondent issued a strike notice informing the
applicant of the intention of its members to embark on strike action with effect from 28 May . Despite the strike notice, it does not appear that the strike
commenced on 28 May.
5.12 The strike notice identifies eight demands over which first respondent’s
members intend to strike. The notice omit s demand number two (“tracking of
drive”) and number five (“compulsory airtime and data to drivers”) as identified
in the dispute referral form.
5.13 On 26 May, the applicant addressed a letter to the General Secretary
of the first respondent advising him that the strike would be unprotected because the union had not complied with the thirty -day cooling off period
contemplated by clause 18.3.
5.14 Later that same day, an application was launched by the first
respondent under case number 2025– 075805 to declare clause 18. 3 to be
unconstitutional .
5.15 The applicant contends that the strike is unprotected because:
5.15.1 The thirty -day cooling off period, which commenced on 12 May,
has not expired before the commencement of the strike,
5.15.2 Properly interpreted, c lause 18.3.1 requires that the strike notice
cannot be issued before the thirty -day cooling off period has expired,
6
5.15.3 The jurisdictional ruling of the Bargaining Council precludes the
first respondent’s members from engaging in strike action in relation to
demands nine and ten.
5.16 In its answering affidavit, the first respondent refers to its founding
affidavit in the counter application where it clarified that demand ten (in respect of Messrs. Nkosi and Phithlo) is not unlawful because the demand is
only that the applicant take disciplinary steps against them. It also denies that
demand nine is a substantive demand and states that it is entitled to such
transport under the Basic Conditions of Employment Act because some drivers commence work at 04h00 and leave after 18h00.
Legal principles and analysis
[6] As mentioned in paragraph 5.15 above, there are three issues arising. The
first may be disposed of easily. At the hearing the applicant conceded that thirty days
had indeed passed since the certificate of outcome of conciliation had been issued.
[7] The next issue is the interpretation of clause 18.3. It is clear clause 18.3.1
creates a further procedural limitation on strike action, one that is not contemplated
by section 64(1) . In general, s uch procedural limitations of the strikes are
permissible. Collective agreements may limit the right to strike
3 by prohibiting the
right to strike on a particular issue, providing for a process to deal with a particular issue,
4 or otherwise regulating the issue in dispute.5
[8] The dominant approach to the interpretation of legal documents, including
contracts, is expressed through the interpretative triad of language, context and
3 See section 65(1)(a) of the LRA
4 Air Chefs (Pty) Ltd v SA Transport and Allied Workers Union and Others (2013) 34 ILJ 119 (LC);
Fidelity Guards v PTWU & others [1997] 11 BLLR 1425 (LC)
5 See section 65(3)(a)(i) of the LRA
7
purpose. This was explained by Wallis JA in Natal Joint Municipal Pension Fund v
Endumeni Municipality6 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. 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)
[9] However, collective agreements are not ordinary contracts and there are
additional concerns at play. The Labour Appeal Court recently explained this in
National Union of Metalworkers of SA v Motor Industry Staff Association & others
7 as
follows:
6 2012 (4) SA 593 (SCA)
7 (2025) 46 ILJ 109 (LAC)
8
“[30] As far back as 1997, this court recognised that a collective agreement
concluded in terms of the LRA is not an ordinary contract, and that the context
within which the collective agreement operates is vastly different from that of a
commercial contract. Collective agreements operate within the framework
established by the LRA and the interpretation of a collective agreement ought
to be approached with the objects and purpose of the LRA in mind. In North
East Cape Forests v SA Agricultural Plantation & Allied Workers Union &
others , Froneman DJP stated: ‘It is, in my view, quite clear that these primary
objects of the Act are better served by the practical approach to the
interpretation and application of the collective agreement as set out in the
judgment of Myburgh JP, rather than by reference to purely contractual
principles. On the particular facts of this case the object of orderly bargaining
and effective expression of the fundamental right to strike will be frustrated by
the latter approach.’
[31] In eThekwini Municipality (Health Department) v Independent Municipal &
Allied Trade Union on behalf of Foster & others , this court held that a
collective agreement must be interpreted ‘in such a manner as to ensure
effective and sound industrial relations’ . Further, in Western Cape Department
of Health v Van Wyk & others , this court held: ‘In interpreting the collective
agreement the arbitrator is required to consider the aim, purpose and all the
terms of the collective agreement . Furthermore, the arbitrator is enjoined to
bear in mind that a collective agreement is not like an ordinary contract. Since
the arbitrator derives his/her powers from the Act he/she must at all times take into account the primary objects of the Act. The primary objects of the Act are
better served by an approach that is practical to the interpretation and
application of such agreements , namely, to promote the effective, fair and
speedy resolution of labour disputes . In addition, it is expected of the
arbitrator to adopt an interpretation and application that is fair to the parties.’
[32] What these decisions make clear is that when a collective agreement is
interpreted, in contrast to a commercial contract, a more normative approach is required. In the case of commercial contracts, a degree of primacy is placed
on contractual autonomy, in the form particularly of the intention of the parties.
When a collective agreement is interpreted, values based on the social
9
character of the agreement are relevant . To this end, the common- law canons
of interpretation of contracts offer obvious guidance but must necessarily be
tempered, where appropriate, with a consideration of the statutory context in
which a collective agreement is concluded and specifically, the objects and
purposes of the LRA. ”
(own emphasis)
[10] It is in this broader social and legislative context that collective agreements
must be interpreted. Regard must be had not only to the language, context, and
purpose but also to the social character of the collective agreement and the primary
objects of the LRA. O f course, one of the primary objects of the LRA is to give effect
to the constitutional right to strike.8
[11] It is also necessary bear in mind that collective agreements are imbued with
statutory force. In Platinum Mile Investments (Pty) Ltd t/a Transiton Transport v
SATAWU & others
9 the court said: ‘There can be no dispute that a collective
bargaining agreement or an industrial agreement is not a contract but rather a piece of subordinate legislation. ’ Accordingly, when interpreting a collective agreement
which limits the right to strike , any court or tribunal is enjoined to adopt an
interpretation that is constitutionally permissible
10 and, given the injunction in section
8 See section 1(a) of the LRA. In SATAWU and others v Moloto NO and another (2012) 33 ILJ 2549
(CC) at para 20 the Constitutional Court held: “ Thus, the provisions of the Act must be interpreted
purposively so as to give effect to the Constitution, the objects of the Act itself and the purpose of the
provisions in issue. But, this approach does not necessarily equate to an expansive construction of
the provisions of the Act. This is so because the purpose of the Act may well require a restrictive
interpretation of the particular provisions so that the exercise of a protected right is not unduly limited.
Therefore, due regard must be had to the express language used in the provisions under
consideration. Furthermore, care must be taken against unduly limiting a fundamental right which has
been conferred (as in this case) without express limitation by reading implied restrictions into it. ” (own
emphasis)
9 (2010) 31 ILJ 2037 (LAC) at para 46
10 See the approach adopted in CSS Tactical (Pty) Ltd v Security Officers Civil Rights & Allied
Workers Union & Others (2015) 36 ILJ 2764 (LAC) at para 25
10
39(2) of the Constitution11 adopt the interpretation that is least restrictive of the right
to strike.
[12] The applicant contends for an interpretation of clause 18.3 which would
require that the cooling off period must expire before a strike notice may be given. On this interpretation, even a ten day strike notice issued a day before the end of the cooling off period would be invalid. The applicant’s interpretation appears to be
premised on the phrase “subject to” .
12 In my view, there is nothing in the phrase
“subject to” which requires that the notice be given after the cooling off period. In the
present context, the phrase “subject to” means that commencement of the strike is
subject to a strike notice being issued first. However, there is nothing in the plain language of the clause which demands an interpretation that the notice must be
given after the expiry of the cooling off period. The purpose of the cooling off period
is to stall the commencement of the strike during the cooling off period, to allow for negotiations before the intensity and pressure of a strike. The purpose is not to
create an unnecessary procedural obstacle to strike action. Clause 18.3.2 refers to
every employee ‘ who has the right to strike in terms of section 64’ . Employees only
have the right to strike when they have complied with section 64.
13 Accordingly, the
right to strike only accrues after the strike notice has been given. It is clear that there
are two possible interpretations of clause 18.3. In my view, the proper interpretation
of clause 18.3 is that the strike notice may be issued prior to the end of the cooling
11 Act No 108 of 1996 as amended. Section 39(2) of the Constitution reads: “When interpreting any
legislation, and when developing the common law or customary law, every court, tribunal or forum
must promote the spirit, purport and objects of the Bill of Rights.”
12 The phrase 'subject to' has no a priori meaning. In Pangourne Properties Ltd v Gill Ramsden (Pty)
Ltd 1996 (1) SA 1182 (A) at 1187E Harms JA held: “ The phrase “subject to” has no a priori meaning.
A dictionary establishes that. In statutory contexts it is often used to establish what is dominant and
what is subordinate (cf . Rennie NO v Gordon and Another NNO 1988 (1) SA 1 (A) at 21D -22D). In
contractual settings, especially insurance contracts, it is usually used to create a suspensive
condition, but also (always depending on the context) a resolutive condition (SA Eagle
Versekeringsmaatskappy Bpk v Steyn 1991 (4) SA 841 (A) at 848 B -D). Frumer v Maitland 1954 (3)
SA 840 (A) is an example of an instance where, in a contract, it simply introduced a condition of the
contract, i.e. a material term (in contradistinction to a suspensive or resolutive condition) .”
13 When this interpretation was suggested to the applicant’s counsel during argument, she appeared
to agree with the court.
11
off period, provided that the strike may only commence after the end of the cooling
off period. This interpretation is compliant with the interpretative triad of text, context ,
and purpose; and it is the least restrictive of constitutional rights.
[13] In its founding papers, in relation to demands nine and ten, applicant states
that the Bargaining Council has made a ruling and therefore the demands cannot
form the basis of protected strike action. This is the only challenge in relation to
those demands. It is not uncommon, though unfortunate, for employers seek to limit
the scope of strike action by taking “jurisdictional points” during conciliation. In this
regard, in the City of Johannesburg Metropolitan Municipality & another v SA
Municipal Workers Union and others
14 per Van Niekerk J (as he then was) held:
“15] The referral to conciliation was made on 7 January 2011. Insofar as the
applicant contends that the jurisdictional ruling made by the commissioner
renders the strike unprotected, while it may be correct that the commissioner
found that the bargaining council had no jurisdiction to entertain the referral,
the applicants' submissions overlook the fact that it is not necessary under the
LRA for a conciliation hearing actually to take place before a strike can be
protected. In terms of s 64(1) (a) of the LRA, it is sufficient if 30 days have
elapsed since the referral of the dispute. In other words, the commissioner's
ruling affected only the convening of the conciliation process; it says no more
than that the bargaining council did not have the jurisdiction to conciliate the
dispute. Since a conciliation meeting is not a precondition for a strike to be
protected (because it is sufficient that 30 days have elapsed after the date of
the referral) the commissioner's ruling is not a relevant factor. ”
(own emphasis)
[14] The jurisdictional ruling therefore does not prevent strike action in relation to
demands nine and ten. The only effect is that the Bargaining Council has not conciliated those demands, an unfortunate consequence of the applicant’s approach. It falls within the jurisdiction of this court to determine which demands are permissible, for the purposes of strike action, and which are not. The Bargaining
14 (2011) 32 ILJ 1909 (LC)
12
Council cannot usurp the jurisdiction and powers of this court by issuing jurisdictional
rulings of this kind.
[15] The applicant does not contend, in its papers, that demand ten is unlawful. It
contends only that the first respondent cannot engage in strike action while the jurisdictional ruling of the Bargaining Council is ext ant. As I explained earlier, this is
incorrect . In any event, i t is trite that demands by a union that an employer take
disciplinary action, or place an employee on precautionary suspension, are not
unlawful per se unless the demands require the employer to act unlawful ly.
15
Costs
[16] The parties appear to have a healthy and ongoing relationship. Whilst the
applicant’s approach was ill -conceived, I do not believe it acted mala fide. It simply
sought to protect its business. Furthermore, there is still an underlying dispute that needs to be finally resolved. Mulcting a party with costs can strain the relationship, and hinder the resolution of the underlying dispute . Finally, I am guided by the
judgment in Zungu v Premier of the Province of KwaZulu- Natal & others
16 that, in
employment matters, costs do not automatically follow the result. Exercising my wide
discretion in terms of section 162(1) of the LRA, I believe no costs order is
appropriate.
Conclusion
[17] While it may be that the applicant has satisfied the requirements of urgency,
balance of convenience, and no alternative remedy, it has failed to illustrate a prima
facie right (or clear right for that matter) to the relief sought . The strike action
contemplated by the first respondent, and its members, is protected. In the result , the
following order is made:
15 See Metro Bus (Pty) Ltd v SAMWU on behalf of Members (2009) 30 ILJ 2952 (LC); City of
Johannesburg Metropolitan Municipality v SALGBC & others (2009) 30 ILJ 2064 (LC) ; TSI Holdings
(Pty) Ltd & Others v NUM SA & others (2006) 27 ILJ 1483 (LAC) at para 39
16 (2018) 39 ILJ 523 (CC) at para 25
13
Order
1. The application may be heard as one of urgency.
2. The application is dismissed,
3. There is no order as to costs.
R Daniels
Judge of the Labour Court of South Africa
Appearances :
For the A pplicant:
Adv Maharaj -Pillay
Instructed by: Thomson Wilks Inc
For the First Respondent:
Mr. Mokoena Mokoena Japhta Inc