THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG

Not Reportable
Case No: 2025 -082833

In the matter between:

CITY OF EKURHULENI
METROPOLITAN MUNICIPALITY Applicant

and

MUNICAL EMPLOYEES CIVIL
SERVANTS UNION (MECSU) First Respondent

VUKILE MLUNGWANA Second Respondent

NKOSANA GOULD Third Respondent

MEMBERS OF MECSU EMPLOYED
AT THE APPLICANT (listed in Annexure A) Fourth Respondent

ESSENTIAL SERVICES COMMITTEE OF
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Fifth Respondent

Heard : 6 June 2025

Delivered : 20 June 2025
By consent, t his judgment was handed down electronically by circulation to
the parties' representatives by email. The date for hand -down is deemed to be
20 June 2025.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PRINSLOO, J

Introduction

[1] The Applicant approached this Court on an urgent basis for relief . The relief
sought is two -fold – the Applicant seeks an order declaring the First (MECSU
or union), Second (Mr Mlungwana) and Third (Mr Gould) Respondents in
contempt of Court and an order to interdict th e intended strike and any
conduct in contemplation or furtherance of the strike which has been planned
to take place as per the strike notice dated 27 May 2025.

[2] The parties before Court, except the Fifth Respondent, have been embroiled
in multiple urgent applications. It is necessary to set out the history of this
matter as it will provide context for this application.

[3] On 29 August 2024 , the union’s Secretary General, Mr Mlungwana, sent a
strike notice to the Applicant , giving seven days’ notice of its mem bers’
intention to embark on strike action. The demands were the following:

‘3.1. Grading of all traffic wardens into a constable post due to
similarities in job functions of these two posts;
3.2. Provision of ceremonial pass -out parade to 2022/2023 Metro
Police trainees after completing training in metro police diploma;
3.3. Implementation of four days in four days out plus 40 hours of
overtime added to monthly salary to all metro police officers in
the EMPD;
3.4. Implementation of encashment of annual lea ve days;

3.5. Implementation of acting allowance policy;
3.6. Retrospective pay of 8 hours fire fighters worked per month;
3.7. Insourcing of contract security guards and cleaners follow City of
Ekurhuleni Council Resolution of March 2022.’

[4] The Applicant approached the Court on an urgent basis and sought an order
interdicting the ‘ unlawful strike and picketing ’. The Applicant’s case was inter
alia that the Respondents’ right to strike was limited in terms of section 65(1)
(c), (d) and (i) of the Labour Relations Act1 (LRA) in that the demands raised
by the union are those that should be referred to arbitration or the Labour
Court and that some of the employees render essential services.
Furthermore, MECSU does not have organisational rights and s hould not be
striking in respect of the aforementioned demands.

[5] The urgent application was before Khumalo AJ on 5 September 2024 and he
made an order to the effect that the matter stood down until 6 September
2024, that the Respondent had to upload its ans wering papers and the parties
had to upload their heads of argument and that the ‘Respondent undertakes
not to embark on a strike action until this matter is fully ventilated in court ’.

[6] The matter was argued on 6 September 2024 , and after hearing oral
argument, Khumalo AJ reserved his judgment. Khumalo AJ indicated that no
strike or picketing should be embarked upon by the Respondents pending his
deliver y of the judgment.

[7] It is unfortunate that , to date , Khumalo AJ has not delivered the judgment.

[8] On 8 Octo ber 2024 , MECSU , through Mr Mlungwana , issued another strike
notice for the strike to commence on 21 October 2024. In the strike notice ,
reference was made to the strike notice of 29 August 2024 as well as the
Applicant’s urgent application to interdict the strike. It was specifically
recorded that:

1 Act 66 of 1995, as amended.


‘As we know that the labour court judge, after hearing the City’s urgent
application on the 6th September 2024, reserved his judgment to date,
more than 30 days later, hence the City has not served us with any
such court interdict whatsoever. Clearly, if the City’s urgent application
was successful the court would have granted the order soon the reafter.
In the absence of any order of court interdicting or restraining us from
embarking on a protected strike, we have now resolved to issue the
employer with a fresh strike notice to continue with our protected strike
action to demand the following:
“3.1. Grading of all traffic wardens into a constable post due to
similarities in job functions of these two posts;
3.2. Provision of ceremonial pass -out parade to 2022/2023
Metro Police trainees after completing training in metro
police diploma ;
3.3. Implementation of four days in four days out plus 40
hours of overtime added to monthly salary to all metro
police officers in the EMPD;
3.4. Implementation of encashment of annual leave days;
3.5. Implementation of acting allowance policy;
3.6. Retrospective pay of 8 hours fire fighters worked per
month;
3.7. Insourcing of contract security guards and cleaners
following the City of Ekurhuleni Council Resolution of
March 2022 .”’

[9] It is evident that the demands contained in the second strike notice, d ated 8
October 2024, are verbatim the same as the demands contained in the first
strike notice, dated 29 August 2024.

[10] The Applicant once again approached this Court on an urgent basis and on
17 October 2024 the Court (per Snyman AJ) issued an order which inter alia
interdicted MECSU and its members from striking and/or picketing pursuant to
the demands as set out in the notice of 8 October 2024, pending the handing

down of the judgment by Khumalo AJ, that the order shall automatically lapse
upon the reserve d judgment by Khumalo AJ being handed down and that the
Registrar be directed to approach Khumalo AJ to expedite the handing down
of the judgment which was reserved on 6 September 2024.

[11] On 21 October 2024 , MECSU referred a mutual interest dispute to the
SALGBC. The matter was conciliated and remained unresolved on 9
December 2024. The demands made were the following:

‘1. That the municipality stops privatisation of services rendered by
employees and members of the union at waste management,
parks, water, r oads, fleet and energy departments;
2. That the municipality stop forcing MECSU members to use
trucks of private companies to carry out the work of the
municipality at waste management division;
3. That the municipality maintains its practice to provide full PPE
once/twice a year at waste management, metro parks, water,
roads, fleet and energy departments.
4. That the municipality provide patrol cars (tools of trade) to all the
officers and traffic wardens at EMPD for execution of the duties
of the municipality and /or
5. That the commissioner issue a certificate to strike of (sic) the
dispute remains unresolved at conciliation. ’

[12] The parties were directed to file heads of argument on whether the issues in
dispute were indeed strikeable . The Applicant’s argument was that the matter
was to be dealt with in terms of section 65(1)(c) of the LRA , which provides for
a dispute to be dealt with by way of arbitration or by referral to the Labour
Court. The Appl icant wanted a certificate to arbitrate the dispute , and the
union wanted a certificate to strike, disputing that the issues must be dealt
with in terms of section 65(1)(c).

[13] Following the written submissions, a ruling was delivered on 20 December
2024. It was ruled inter alia that the issues raised by the union ‘ are iss ues of

mutual interest which can either be referred to strike or to the Labour Court ’.
Draft picketing rules were provisionally adopted , and the parties were given
until 6 January 2025 to consider the picketing rules.

[14] The Applicant requested an extension, which was granted , and submissions
were made by 13 January 2025. The Applicant ultimately submitted that the
matter be referred to arbitration, to give effect to section 65(1)(c) of the LRA.

[15] A ruling was issued on 20 January 2025 , and the commissioner iss ued ‘ the
certificate of strike together with the picketing rules ’.

[16] On 29 January 2025 , MECSU issued a notice to picket in support of a
protected strike. The Applicant once again approached this Court on an
urgent basis for relief . On 31 January 2025 , the parties agreed to remove the
matter from the roll , and an order in the following terms was made:

‘1. That the parties would meet on 6 February 2025 at 10:00 at the
Applicant’s offices to commence with discussions on four of the
union’s demands;
2. The union and its members will not conduct any picketing
pending the said meeting. ’

[17] The Applicant explained that the meeting took place on 6 February 2025 to
engage on the four demands made in the mutual interest dispute, but at the
meeting , MECSU insisted that other demands, which were not referred to the
SALGBC on 19 November 2024, be discussed. The union introduced new
demands during the negotiations , which took place on 6, 13 and 19 February
2025. The Applicant provided comprehensive responses to the demands,
which the union rejected. The Applicant anticipated that the parties would be
engaging fur ther with MECSU in order to reach an amicable solution, but on
19 February 2025 , Mr Mlungwana transmitted a 48 -hour strike notice, which
strike action was to commence on 20 February 2025.


[18] It is evident that the strike notice issued on 19 February 2025 doe s not clearly
set out the demands the Respondents seek to resolve by way of strike action
– it refers to strike action ‘in pursuit of the demands listed in the above mutual
interest dispute’ being a reference to SALGBC case n o: GPD102416. The
demands made under the said case n umber are those recorded in paragraph
11 supra.

[19] On 24 February 2025 , the Applicant once again launched an urgent
application seeking a rule nisi to inter alia declare any strike or conduct in
contemplation or furtherance of a strike pursuant t o the strike notice dated 19
February 2025 unprotected, to declare all of the demands are made within the
defined and designated essential services and that no member of the union
employed in a designated essential service may embark on an y strike or
conduct in contemplation or furtherance of a strike.

[20] On 26 February 2025 , a rule nisi with a return date of 20 March 2025 was
issued. The Court granted the following orders:

‘1. Declaring that any strike in contemplation or furtherance of a
strike pursuant to the notice issued by the first respondent
(MECSU) on 19 February 2025 is unprotected;
2. Declaring further all of the demands are made within defined
and designated essential services and that no member of the
respondent employed in a desi gnated essential service may
embark on any strike or conduct in contemplation or furtherance
of a strike;
3. The first respondent and its members employed at the applicant
are interdicted from engaging in any strike, including but not
limited to picketing, instigating, promoting, encouraging any
strike action, gathering and protest action, or any other conduct
in pursuit of their demands pending the final outcome of this
application;

4. The provisions of paragraph 2 above shall operate as an interim
order with immediate effect pending the outcome of the return
day;
5. Should the first respondent or its members fail to comply with
the terms of this order and any part thereof the applicant is
entitled to seek assistance from the South African Police
Services and/or public order policing unit;
6. Costs are reserved.

[21] On 19 March 2025 , the Applicant referred a dispute to the CCMA in terms of
section 73 of the LRA, seeking the following determination from the CCMA:

‘Declaration that the employees employed in roles listed in the
motivation are designated as essential services employees. ’

[22] Following the referral of the essential services dispute, the first sitting of the
essential services committee was scheduled to take place on 31 March 2025.
The pr ocess was an ongoing one , and the effect of this was that the rule nisi
issued on 26 February 2025 was extended until 30 April 2025 , then extended
until 15 May 2025 , when it was extended until 6 June 2025.

[23] After first dealing with a point in limine raised by MECSU, the current position
is that the essential services committee had issued a directive on 19 May
2025 whereby the parties were directed to file their written submissions on 26
May 2025, replies to be filed by 6 June 2025 and the essential services
committee to deliver its ruling on the essential service determination within 14
days. In view of the imminent ruling, the return date of 6 June 2025 in case
no: 2025 -024810 was extended until 23 July 2025.

[24] Within this context, MECSU issued another strike notice on 27 May 2025,
giving the Applicant seven days’ notice of the intention to embark on a
protected strike. The strike was to commence on 6 June 202 5. The Applicant
once again approached this Court for urgent relief and filed an application on
3 June 2025, seeking relief in respect of the strike action, as well as an order

that MECSU, Messrs Mlungwana and Gould be found in contempt of Court. I
will deal with the relief sough t in turn.

Points in limine

[25] The union raised three points in limine in its answering affidavit.

[26] It is trite that an affidavit constitutes evidence and that it should contain only
matters of fact within the knowledge of the deponent, and where it falls
outside the personal knowledge of the deponent, it must be confirmed in a
confirmatory affidavit.

[27] In its answering affidavit , the union referred to a number of authorities , and
the deponent not only provided the citation of the cases, he also presented
legal argument on his interpretation of the authorities he referred to . It is
inappropriate to include quotations from case law or legal arguments in
affidavits – those belong in heads of argument. The deponent to an affidavit
must be able to speak to the matters that appear in the affidavit because they
are within his or her personal knowledge. The content of case law does not
fall within the personal knowledge of a deponent , and legal arguments do not
constitute evidence.

[28] The first point is that the deponent to the founding affidavit, Mr Zulu, lacks
locus standi to act on behalf of the Applicant to institute this application and to
depose to the founding affidavit. The union’s case is that Mr Zulu was not
delegated to institute this application and to depose to the affidavit. In support
of its argument, Mr Mlungwana, the deponent to the answering affidavit,
referred to the provisions of Rule 7(1) of the Uniform Rules of Court a nd the
authorities which dealt with the said rule.

[29] There is no merit in the first point in limine , and it displays a lack of
understanding of the applicable principles.


[30] The courts have made it clear that the deponent to an affidavit need not be
authorised. In Ganes and Another v Telecom Namibia Ltd2, the Supreme
Court of Appeal (SCA) held that:

‘The deponent to an affidavit in motion proceedings need not be
authorized by the party concerned to depose to the affidavit. It is the
institution of the proceedings and the prosecution thereof which must be
authorized.’

[31] Rule 7(1) of the Uniform Rules of Court provides that:

‘Subject to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting on behalf of a party
may, within 10 days after it has come to the notice of a party that such
person is so acting, or with the leave of the court on good cause shown at
any time before judgment, be disputed, whereafter such person may no
longer act unless he satisfie d the court that he is authorised so to act, and
to enable him to do so the court may postpone the hearin g of the action or
application.’

[32] The Respondents ’ notion that a deponent must have authority to depose to an
affidavit is without merit. All t hat is required in terms of Rule 7(1) is that the
legal representatives be authorised to institute the litigation. Mr Zulu’s
authority cannot be challenged by way of Rule 7(1) as it is the attorney that
must be authorised to bring an application on behalf of an applicant , and there
is no need that any other person, including a deponent, should additionally be
authorised.

[33] In casu , the Applicant is represented by attorneys, whose authority to institute
legal proceedings has not been challenged.


2 (2004) 25 ILJ 995 (SCA) at para 19.

[34] Ultimately, this Court must decide whether enough has been placed before it
to warrant the conclusion that it is, indeed, the Applicant which is litigatin g and
not some unauthorised person on its behalf. In casu, enough has been placed
before the Court to accept that the institution of the urgent application was
duly authorised and that it is indeed the Applicant which is litigating. This is
more so conside ring the lengthy litigation history between the parties.

[35] The second point is misjoinder. MECSU’s case is that Mr Mlungwana serves
as the general secretary and Mr Gould as the president of the union , and that
by virtue of their positions , they act as authorised representatives of MECSU.
They are authorised to act on behalf of MECSU , and at no stage did they act
in their personal capacities concerning the applications before this Court and
the orders b eing issued by this Court. Their involvement has been exclusively
in their roles within the trade union , and they acted in a representative
capacity rather than as individual litigants. As such , they have no personal
interest in these proceedings.

[36] It is trite that in order for parties to be joined to particular proceedings, they
must have a direct and substantial legal interest in the matter , such as to
make them necessary parties to the proceedi ngs. Only parties that would be
directly affected by the court’s order or where the order cannot be sustained
or carried into effect without prejudicing such a party are necessary parties to
the proceedings.

[37] Misjoinder occurs where a party that has been j oined to proceedings, is not a
necessary party, and the test to determine whether there is a misjoinder is
whether or not the party has a direct and substantial interest in the subject
matter of the litigation, which might be affected prejudicially by a ju dgment of
the court. Put another way, in the case of non -joinder, a necessary party is
omitted, and in the case of misjoinder, an unnecessary party is joined .

[38] There is no merit in the ‘misjoinder’ argument.


[39] The Applicant has cited Messrs Mlungwana and Gou ld as individuals acting
on behalf of the union, in an application to find them in contempt of Court. It is
customary in this Court to cite individuals who act as responsible persons on
behalf of a body corporate or legal entity as respondents in a contemp t of
court application. Rule 58 of the Rules for the Labour Court3 provides for the
citation of , for instance , a CEO, head of department, owner, proprietor, or
municipal manager as a respondent in a contempt of court application. As
was held in Commissioner for Inland Revenue v Richmond Estates (Pty) Ltd4,
equally applicable here: ‘A company is an artificial person with no body to kick
and no soul to damn ...’.

[40] In a contempt of Court application , the responsible person (whom the
applicant seeks the court to find in contempt) of the respondent, who was
aware of the court order and who is deliberately refusing to comply with it, is
cited as a necessary party in contempt proceedings.

[41] In casu , it is evident from the founding affidavit that Mr Mlungwana is cited as
the secretary general of MECSU and Mr Gould i s cited as a member of
MECSU, who appeared in Court on behalf of MECSU on 15 May 2025 and
who has personal knowledge of what the Court had said on 15 May 2025
regarding the extension of the rule nisi. They are respondents before this
Court in the contempt of C ourt application .

[42] The Applicant made it clear that the First, Second and Third Respondents
were served with the court order of 26 February 2025 ; they are aware of it ,
and their conduct transgressed the Court order, which conduct is wilful and
mala fide and therefore they should be guilty of contempt of Court.

[43] They are necessary parties as they have a substantial legal interest in the
contempt of Court application. Messers Mlungwana and G ould would no
doubt be prejudiced if they were not cited as respondents and afforded an

3 GN 4775 of 2024: Rules Regulating the Conduct of Proceedings of the Labour Court (effective, 17
July 2024).
4 1956 (1) SA 602 (A) at 606G.

opportunity to defend the relief sought against them – they have the right to
be heard , and if not joined, it would result in prejudice to them.

[44] The third point is non -joinder of the SALGBC. The Respondents’ case is that
the SALGBC has a material interest in this matter and ought to have been
joined. This is so because the arbitrator issued a certificate of non -resolution
under the auspices of the SALGBC, after he was sa tisfied that all procedural
prerequisites had been met , and as such, the SALGBC played an
instrumental role in the facilitation of the strike certification and the picketing
rules.

[45] There is no merit in this point taken by the Respondents.

[46] The proceedings before the SALGBC are not being challenged in this
application , and there is no relief sought against the SALGBC. The relief
being sought, if granted, will have no implications for the SALGBC, nor will it
affect the SALGBC directly or indirectly. The mere fact that the SALGBC
facilitated the issuing of the strike notice and the picketing rules does not
make it a necessary party with a legal interest in this application.

Protected strike action

[47] Before I deal with the merits of this application, it is necessary to set out the
general principles relating to protected strikes.

[48] The right to strike is a constitutionally enshrined right, given effect to in the
LRA. Chapter IV of the LRA regulates the right to strik e, which right is
essential to collective ba rgaining.

[49] In terms of section 64(1) , every employee has the right to strike for the
purpose of remedying a grievance or resolving a dispute in respect of any
matter of mutual interest. As such, and as a matter of principle, this right
should not be unduly or inappropriately limited, and limitation must be strictly
determined on the basis of what is specifically provided for in the LRA. The

default position is that strike action is allowed, unless specifically prohibited by
the LRA.

[50] The LRA regulates th e right to strike in two ways : being a procedural limitation
and a substantive one. Chapter IV contemplates what is referred to as the
‘golden formula’ , which entails that certain steps must be taken and certain
requirements met before strikers are protecte d from the civil and contractual
liability that could arise from the strike. To engage in a protected strike, where
employees are protected against dismissal and other forms of legal liability,
they must first of all comply with the procedural requirements set out in
section 64 of the LRA .5

[51] The procedural limitation is that full compliance with the requirements in
section 64(1) must occur. Acquisition of a protected right to strike is through a
relatively simple procedure – first, the issue in dispute must be referred to
either a bargaining council or the CCMA for conciliation ; second, a certificate
stating that the dispute remains unresolved must be issued, alternatively a
period of 30 days must elapse from the date of referral of the dispute ; and
finally, the employer must be given at least 48 hours’ written notice of the
commencement of the strike. Where the State is the employer, the notice
period is seven days.

[52] However, over and above the procedural requirements set out in section 64,
section 65 lays do wn a number of substantive limitations to the right to strike.
If a strike is in breach of any of the provisions of section s 64 or 65, the striking
employees will be deprived of the protection of the LRA .

[53] The substantive limitation s which prohibit strike action are found in the
provisions of section 65 (1) of the LRA :


5 H Cheadle , B Condradie, T Cohen et al, ‘Strikes and the Law’, LexisNexis, at p 107.

‘(1) No person may take part in a strike or a lock-out or in any
conduct in contemplation or furtherance of a strike or a lock -out
if –
(a) that person is bound by a collective agreement that
prohibits a strike or lock -out in respect of the issue
in dispute;
(b) that person is bound by an agreement that requires
the issue in dispute to be referred to arbitration;
(c) the issue in dispute is one that a party has the r ight to
refer to arbitration or to the Labour Court in terms of this
Act;
(d) that person is engaged in –
(i) an essential service; or
(ii) a maintenance service. ’

[54] In Vodacom (Pty) Ltd v Communication Workers Union6 (Vodacom) , the
Labour Appeal Court (LAC) held that:

‘Section 65 sets out limitations on the right to strike or recourse to lock-
out which have to be read together with s 64. In short no matter that
there has been compliance with s 64, the LRA limits a right to strike,
such that if the strike reaches one of the limitations in terms of s 65, it
is an unlawful strike, notwithstanding compliance with procedures
under s 64. …’

[55] The substantive limitations to the right to strike in section 65 of the LRA are
defined by way of specific reference to what is called the ‘ issue in dispute ’
forming the subject matter of the strike, which includes a deman d.

[56] The issue in dispute is ordinarily identified by reference to the demand or
grievance articulated by those participating in the strike.7 This is a factual

6 (2010) 31 ILJ 2060 (LAC) at para 10.
7 See: TSI Holdings (Pty) Ltd and O thers v National Union of Metalworkers of SA and O thers (2006)
27 ILJ 1483 (LC).

enquiry. In order to determine whether an issue in dispute falls within the
parameters of the aforesaid limitations, it is essential to determine what the
true or real nature of this issue in dispute would be, no matter how any of the
parties may have sought to describe or label the dispute. In Coin Security
Group (Pty) Ltd v Adams and Others8 the LAC held that :

'It is the court's duty to ascertain the true or real issue in dispute :
Ceramic Industries Ltd t/a Betta Sanitaryware v National Construction
Building Workers Union & others (2) (1997) 18 ILJ 671 (LAC) ; Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers' Union &
others (1) (1998) 19 ILJ 260 (LAC). In conducting that enquiry a court
looks at the substance of the dispute and not at the form in which it is
presented ( Fidelity at 269G -H; Ceramic at 678C). The characterization
of a dispute by a party i s not necessarily conclusive ( Ceramic at 677H -
I; 678A -C). ….’

[57] It is within this context that the application to interdict the the intended strike
action and any conduct in contemplation or furtherance of such strike, which
includes picketing, as per the st rike notice of 27 May 2025 , is to be decided.

The strike interdict

[58] The Applicant seeks an order to interdict the the intended strike action, as per
the strike notice of 27 May 2025. The application is premised on the fact that
the Fourth to further Respondents , who are members of MECSU and are
employed by the Applicant in designated essential services , are prohibited
from striking and picketing.

[59] MECSU referred a mutual interest dispu te to the SALGBC on 27 February
2025 regarding the employment of staff on roll -over contracts for permanent
services at Harambe Integrated Rapid Transport Network, the reduction of
overtime for officials at the Ekurhuleni Metro Police Department (EMPD ) and

8 (2000) 21 ILJ 924 (LAC) at para 16.

the provision of night shift and danger allowance for EMPD officials. The
matter was conciliated on 26 March 2025, but remained unresolved. On 30
April 2025 , the SALGBC issued a notice for a hearing on the picketing rules to
be held on 9 May 2025, on which date the picketing rules were finalised. On
13 May 2025 , the presiding arbitrator issued the agreed -upon picketing rules
that would apply.

[60] The agreed picket ing rules specify that only members of MECSU and other
employees of the Municipality who are not engaged in an essential service
may take part in the picket.

[61] On 27 May 2025 , MECSU issued a strike notice, which triggered this
application.

[62] This Court has to determine whether the issue in dispute falls within the
parameters of section 65(1)(d) , and it is essential to determine what the true
or real nature of this issue in dispute is. The Court must consider the demand,
which forms the subject matter of the strike. The strike notice of 27 May 2025
pertains to the following demands:

‘1. That the employer (the Applicant) permanently employ contract
staff at Harambe Integrated Rapid Tr ansport Network under fleet
and transport department;
2. That the employer adds 60 hours overtime over the monthly
basic salary of officials, employed under its Ekurhuleni Metro
Police Department (EMPD); and
3. That the employer provides night shif allowan ce and danger
allowance to officials under EMPD. ’

[63] Section 74 of the LRA provides that any party to a dispute that is precluded
from participating in a strike or lock -out because that party is engaged in an
essential service may refer the dispute to a barga ining council or the CCMA
for conciliation , and, if it remains unresolved, for arbitration. It is undisputed
that Metro police officers are essential service workers.


[64] The Applicant’s case is that the demands set out in the aforesaid strike notice
will saddle it with a significant risk in that essential services stand to be
significantly affected whilst there is a pending dispute before the essential
services committee, which is yet to make a determination.

[65] The Applicant’s case is that all the members of MECSU render essential
services and , as such, they are prohibited from striking and picketing. MECSU
disputed this version and submitted that not all the members of the union are
employed in designated essential services and that it has several members in
non-essential services. The Applicant , in reply , insisted that the union
members are all employed in essential services but highlighted that there is a
dispute regarding designated essential services pending and that only the
essential services committee can make a determination in that regard. This is
not an issue for this Court to decide.

[66] MECSU submitted that the essential services workers will not participate in
the in tended strike , denied that the strike notice includes essential services
workers or stated that the Metro police officers would not be striking.
MECSU’s argument is that the non-essential employees would be striking in
respect of the demands set out in the strike notice of 27 May 2025.

[67] In City of Cape Town v SALGBC and another9 (City of Cape Town) , the Court
was faced with the question of whether a union could call its non -essential
service members out on strike while referring a dispute for arbitration in terms
of section 74(4) of the LRA for its essential service members, where such
referral relates to the same demands as those the non -essential employees
had embarked on a strike over. The Court held that:

‘[17] Parties engaged in essential services are precluded from
participating in a strike as a mechanism to resolve an interest
dispute. Parties engaged in non -essential services may,

9 [2011] 5 BLLR 490 (LC).

however (unless the parties have agreed to refer the dispute to
arbitration), r esort to industrial action as a mechanism to resolve
an interest dispute. A party to an essential service dispute who
refers a dispute to the council is calling upon an arbitrator to
resolve the impasse between the parties through arbitration and
is effect ively requiring the arbitrator to determine the outcome of
the interest dispute between the parties by issuing an award
which will be binding upon the parties.
[18] Where a (non -essential service) party wishes to resort to strike
action as a mechanism to r esolve a dispute, the dispute must be
referred to conciliation in terms of section 64(1) of the LRA.
Once conciliation has failed the parties may then give notice and
thereafter embark on strike action. A party to a dispute in an
essential service will ref er the dispute to conciliation in terms of
section 74(1) of the LRA and once conciliation fails, refer the
dispute to arbitration in terms of section 74(4) of the LRA.
…
[20] Moreover, I am in agreement with the finding that, on a proper
reading of the LRA , there is no support for the principle that a
union must make an election about whether it wishes to embark
on a strike or refer a dispute to arbitration where the same
dispute is raised on behalf of both essential services and non -
essential services’ emp loyee. In other words, there is nothing in
the LRA that requires a referring party to make an election in
respect of the method the union intends to use to resolve the
impasse as the LRA provides for strike action as a mechanism
to resolve a dispute in the case of non -essential services’
employees and compulsory arbitration in respect of essential
services’ employees. Furthermore, no mention is made in the
LRA to suggest that essential service employees lose their right
to arbitration simply because their n on-essential service
colleagues have seized the opportunity to strike. The LRA is
clear: any essential service employee may request that a
dispute be resolved through conciliation and thereafter

arbitration should the parties not settle the dispute. There is in
my view no exception or restrictions to the right of essential
services’ employee in the manner suggested by the city. ’

[68] Although the facts in City of Cape Town are different from the facts before me,
the legal principles remain the same : Parties engaged in essential services
are precluded from participating in a strike as a mechanism to resolve an
interest dispute. A party to a dispute in an essential service has to refer the
dispute to conciliation in terms of section 74(1) of the LRA , and once
conciliation fails, it will refer the dispute to arbitration in terms of section 74(4)
of the LRA. Parties engaged in non -essential services may, however , resort to
industrial action as a mechanism to resolve an interest dispute.

[69] In casu , the union ’s case is that the essential services employees will not
strike, but only the non -essential services employees will take part in the
strike action. There is a pending dispute as to whether MECSU’s members
are all engaged in designated essential services .

[70] For purposes of this judgment , it is undisputed that the EMPD officers (Metro
police) are regarded as essential services employees and , as such , they are
precluded from participating in a strike action. The question which leaps out is
whether other non -essential employees can strike on behalf of the Metro
police officers , as submitted by MECSU.

[71] It is evident from the demands contained in the strike notice of 27 May 2025
that two of the demands pertain specifically and exclusively to the Metro
police officers, namely the demand for 60 hours overtime to be added to the
monthly basic salary of officials in the EMPD and the provision of a night shif t
allowance and danger allowance to them. This is not a demand that is made
in respect of any non -essent ial services employee, nor is it a demand that
overlaps with demands made by non -essential services employees.

[72] The LRA specifically provides that a party to a dispute in an essential service
has to refer the dispute to conciliation in terms of section 74(1) o f the LRA ,

and once conciliation fails, refer the dispute to arbitration in terms of section
74(4) of the LRA. A dispute or demand pertaining to essential services
employees, such as the Metro police officers, is a dispute which must be
referred to arbitra tion, after conciliation failed , and as the Metro police officers
are precluded from strike action, such a demand cannot be resolved by strike
action. In my view, as strike action is not the mechanism to resolve the
dispute, such a demand cannot be made in a strike notice. This is more so
where the same demand is not made in respect of non -essential services
employees , and they would not have the right or interest to strike about a
demand that does not concern them.

[73] There is no dispute that the strike notic e was issued in compliance with the
procedural requirements set out in section 64 of the LRA, but compliance with
procedural requirements is not where the enquiry into whether a strike is
protected or not ends. Over and above the procedural requirements set out in
section 64, section 65 lays down a number of substantive limitations to the
right to strike , and it prohibits strike action or any conduct in contemplation or
furtherance of a strike if the person is en gaged in an essential service. As
already alluded to, the LAC in Vodacom confirmed that no matter that there
has been compliance with section 64, the LRA limits a right to strike, such that
if the strike reaches one of the limitations in terms of s ection 65, it would be
unprotected, notwithstanding compliance with procedures under s ection 64.

[74] It is for these reasons that the intended strike and any conduct in
contemplation or furtherance of such strike, including picketing, pertaining to
the demands made in respect of the Metro police officers as per the strike
notice of 27 May 2025, is to be interdicted.

[75] The remaining demand made is in respect of the permanent employment of
contract staff at Harambe Integrated Rapid Transport Network . In this regard ,
there is a dispute between the parties as to whether all the members of
MECSU are engaged in essential services or not. This dispute is pending
before the essential services committee , and all indications are that a ruling
on the determination is imminent .


[76] The importance of draw ing a distinction between essential and non -essential
employees cannot be over emphasi sed. The Constitutional Court in South
African Police Service v Police and Prisons Civil Rights Union and Another10
upheld the LAC’s findings in which it drew a distinction between members of
the SAPS who performed an essential service, including policing functions ,
and non -members who provided a support function to the SAPS. The Court
held that a strike by non -members would not disrupt the essential service
rendered by SAPS, as these support duties could be performed by members
or otherwise outsourced. In its findin gs, the LAC held as follows11:

‘In the circumstances, the essential service as contemplated by s
65(1)(d) of the LRA in relation to the SAPS is clearly the policing
function as set out in the Constitution and spelled out in the SAPS Act.
The term “engaged ” in the essential service in this section must
therefore only apply to those employees employed under the SAPS Act
and designated as members as well as those employees deemed to be
members by Ministerial decree in terms of s 29(1) and (2) of the SAPS
Act. The members are the employees who constitute the SA Police
Service that is part of the South African security service. While those
employed under the PSA provide an important support and
complementary function to the SAPS they do not form part of the SAPS
that is contemplated by the Constitution and the SAPS Act and as such
they are not part of the SAPS that is designated as an essential service
by the LRA. These employees are therefore not engaged in the
essential service as contemplated by s 65(1)(d) of the LRA and are not
prohibited by the limitation on the right to strike as set out in s 65(1) of
the LRA.’

[77] In my view , it will be appropriate to interdict the strike action and any conduct
in contemplation or furtherance of such strike, including picketing , in respect

10 (2011 ) 32 ILJ 1603 (CC) at paras 33 – 40.
11 SA Police Service v Police & Prisons Civil Rights Union and Another (2010) 31 ILJ 2844 (LAC) at
para 19.

of the aforementioned demand, pending the outcome of the essential service
determination, pending under case n o: ES 817.

[78] If the employees , who are members of MECSU , are found to be employed in
a designated essential service, they are precluded from participating in strike
action and their demands must be resolved by way of arbitration, as
contemplated in section 74 of the LRA. If the essential service committee find
that they are not essential services workers, they may resort to industrial
action as a mechanism to resolve an interest dispute and such would be
protected.

Contempt of Court

[79] The Applicant seeks and order to find MECSU and Messers Mlungwana and
Gould to be in contempt of Court and for them to be fined and/or incarcerated.

[80] The Applicant’s case is that MECSU and Mr Mlungwana are in contempt of
the interim Court order of 5 Septemb er 2024 and 26 February 2025, which
was extended on 15 May 2025 to 6 June 2025 (and was extended on 6 June
2025 to 23 July 2025) when they issued the strike notice on 27 May 2025. Mr
Gould is to be found in contempt of the Court order extended on 15 May
2025.

[81] I have dealt with the litigation history in detail supra and there is no need to
repeat it here.

[82] The Applicant’s case is that the requirements for contempt had been satisfied
in that there is an existing Court order, issued by Danie ls J on 26 February
2025, and subsequently extended and still pending, of which MECSU and
Messers Mlungwana and Gould are aware. More specifically, paragraph (b) of
the said order prohibits MECSU and its members from embarking on a strike
and the strike not ice that was issued while the rule nisi is still effective,
constitutes non -compliance with the terms of the court order a s well as
wilfulness and mala fides beyond reasonable doubt .


[83] The Respondents’ case is that the interim order of 26 February 2025 has no
bearing on the present dispute. They submit that no order has been granted
by the Court interdicting the Respondents from embarking on strike action to
assert their demands, as stated in the mutual interest dispute of 27 February
2025 and the subsequent strike notice of 27 May 2025

[84] The Respondents explained that the strike notice issued on 29 August 2024
has no relevance to the present dispute and the strike notice of 27 May 2025,
as the current dispute involves a different mutual interest dispute referral and
it is about different demands than those stated in the strike notice of 29
August 2024. They claim that they are not aware of an order by Khumalo AJ
which interdicted all future strikes by MECSU and its members.

[85] In respect of the Court order issued on 26 February 2025, it is the
Respondents’ case that the interim order issued by Daniels J is not about the
current mutual interest dispute, nor does it preclude MECSU from referring
other mutual interest disputes . They specifically deny the existence of an
order of Court on the strike demands set out in the notice of 27 May 2025.

Contempt of Court: general principles

[86] In Bruckner v Department of Health and others12, the Court dealt with the
requi rements for contempt and it was held that:

‘It is trite that an applicant in a contempt of court application must prove
beyond a reasonable doubt that the respondent is in contempt. An
applicant must show:
(a) that the order was granted against the respondent;
(b) that the respondent was either ser ved with the order or informed
of the grant of the order against him and could have no
reasonable ground for disbelieving the information; and

12 (2003) 24 ILJ 2289 (LC ) at para 26.

(c) that the respondent is in wilful default and mala fide
disobedience of the order. ’

[87] In Anglo American Platinum Ltd and Another v Association of Mineworkers
and Construction Union and Others13, the Court has held that:

‘The principles applicable in an application such as the present are
well-established. In Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA
326 (SCA), the Supreme Court of Appeal observed that the civil
process for a contempt committal is a “peculiar amalgam ” since it is a
civil proceeding that invokes a criminal sanction or its threat. A litigant
seeking to enforce a court order has an obvious and manifest interest
in securing compliance with the terms of that order but contempt
proceedings have at their heart the public interest in the enforcement of
court orders (see para 8 of the judgment). The court summarized the
position as follows at para 42:
“To sum up:
(a) The civil contempt procedure is a valuable and
important mechanism for securing compliance with
court orders and survives constitutional scrutiny in
the form of a motion court application adapted to
constitutional requirements.
(b) The respondent in such proceedings is not an
"accused person”, but is entitled to analogous
protections as are appropriate to motion
proceedings.
(c) In particular, the applicant must prove the
requisites of contempt (the order; service or notice;
non-compliance; and willfulness and mala fides )
beyond reasonable doubt.
(d) But once the applicant has proved the order,
service or notice, and non -compliance, the

13 (2014) 35 ILJ 2832 (LC) at para 4.

respondent bears an evidential burden in relation
to willfulness and mala fides : Should the
respondent fail to advance evi dence that
establishes a reasonable doubt as to whether non -
compliance was willful and mala fide , contempt will
have been established beyond reasonable doubt.
(e) A declarator and other appropriate remedies
remain available to a civil applicant on proof on a
balance of probabilities. ”'

[88] In Matjhabeng Local Municipality v Eskom Holdings Limited and Others;
Mkhonto and Others v Compensation Solutions (Pty) Limited14 (Matjhabeng) ,
the Constitutional Court confirmed the requisites for contempt of court as
follows:

‘I now determine whether the following requisites of contempt of court
were established in Matjhabeng : (a) the existence of the order; (b) the
order must be duly served on, or brought to the notice of, the alleged
contemnor; (c) there must be non -compliance with the order; and (d)
the non -compliance must be wilful and mala fide . It needs to be
stressed at the outset that, because the relief sought was committal,
the criminal standard of proof − beyond reasonable doubt − was
applicable. ’

[89] The Applicant must prove the aforesaid requisites beyond reasonable doubt.

Analysis

Existence of the order and service


14 2018 (1) SA 1 (CC ) at para 73.

[90] In casu , there is no dispute that a n interim Court order was issued on 5
September 2024 and 26 February 2025 , and that the Respondents ha ve
knowledge thereof .

[91] What is disputed is whether the said Court orders have any bearing on the
present dispute and whether there was non -compliance with th e orders.

[92] The urgent application before Khumalo AJ pertained to seven demands that
were made in a strike notice, dated 29 August 2024. The seven demands
made in August 2024 are different from the demands made on 27 May 2025.
On 5 September 2024 , Khumalo AJ made an order to the effect that the
matter stood down until 6 September 2024, that the Respondent had to
upload its answering papers and the parties had to upload their heads of
argument and that the ‘Respondent undertakes not to embark on a strike
actio n until this matter is fully ventilated in court ’. The matter was argued on 6
September 2024 , and after hearing oral argument, Khumalo AJ, reserved his
judgment.

[93] Another strike notice was issued on 19 February 2025 ‘in pursuit of the
demands listed in the above mutual interest dispute’ , being a reference to
SALGBC case n o: GPD102416. The demands pertained to inter alia the
stopping of privatisation of services rendered by employees and members of
the union at waste management, parks, water, roads, fleet and energy
departments ; maintainance of the practice to provide full PPE once/twice a
year at waste management, metro parks, water, roads, fleet and energy
departments ; and the provision of patrol cars (tools of trade) to all the officers
and traffic ward ens at EMPD for execution of the duties of the Municipality.

[94] On 24 February 2025 , the Applicant launched an urgent application seeking a
rule nisi to inter alia declare any strike or conduct in contemplation or
furtherance of a strike pursuant to the str ike notice dated 19 February 2025
unprotected, to declare all of the demands are made within the defined and
designated essential services and that no member of the union employed in a
designated essential service may embark on any strike or conduct in

contemplation or furtherance of a strike. On 26 February 2025 , a rule nisi with
a return date of 20 March 2025 was issued.

[95] The high water mark of the Applicant’s case is that Daniels J prohibited
MECSU and its members from embarking on a strike , and that the application
is still pending, having the return date extended. Any strike action , therefore ,
would be tantamount to contempt of Court.

[96] It is common cause that another strike notice was issued on 27 May 2025 ,
and t hat MECSU gave notice of the demands and its intention to strike. The
demands relate to the employment of staff on roll -over contracts for
permanent services at Harambe Integrated Rapid Transport Network, the
adding of overtime hours for officials at the EMPD , and the provision of night
shift and a danger allowance for EMPD officials.

[97] It is evident that all the strike notices issued by MECSU made different
demands.

[98] The terms of the order of 26 February 2025 cannot be read in isolation. The
application was clearly triggered by the strike notice dated 19 February 2025
and the specific demands made therein. The Court order of 26 February 2025
is also not an open -ended o rder. The Court granted inter alia the following
relevant relief: Declaring that any strike in contemplation or furtherance of a
strike pursuant to the notice issued by MECSU on 19 February 2025 is
unprotected and declaring all of the demands are made with in defined and
designated essential services and that no member of the respondent
employed in a designated essential service may embark on any strike or
conduct in contemplation or furtherance of a strike.

[99] I do not understand paragraph (b) of the said orde r to mean that MECSU and
its members are prohibited from embarking on any strike action. The relief
granted is linked to and limited to the demands made on 19 February 2025 ,
and it is not an open -ended interdict to interdict any and all strike action by
MECSU and its members.


[100] The demands made on 27 May 2025 are different from the demands made in
February 2025 , and I cannot accept that the Court order of 26 February 2025
interdicted and restrained all strike action .

Wilful and mala fide n on-compliance with the Court order

[101] The next consideration is whether the Respondents are in wilful and mala fide
disobedience of the Court order, which the Applicant must prove beyond
reasonable doubt.

[102] To establish non-compliance requires more than a failure to comply with the
order. In Matjhabeng,15 the Constitutional Court affirmed that contempt of
Court does not consist of mere disobedience of a court order, but of
‘contumacious disrespect for judicial authority ’. The requirement of wilfulness
and mala fides means th at contempt is committed not by a mere disregard of
the court order, but by the demonstration of a deliberate and intentional
violation of the court’s dignity, repute or authority.16

[103] For the Applicant in casu to succeed with his contempt of Court applicat ion, it
must show, beyond reasonable doubt, that the Respondents are in wilful and
mala fide disobedience of the Court order of 26 February 2025 . The mere fact
that the Respondents issued another strike notice with different demands is
not sufficient – more is required for purposes of a contempt of Court
application .

[104] There are no facts placed before this Court to show, beyond reasonable
doubt, that the Respondents did not have a bona fide belief that the y were
entitled to refer another mutua l interest dispute and to issue a strike notice,
containing different demands , once they have complied with the procedural

15 Ibid a t para 65.
16 Dibakoane NO v Van den Bos & Others; Van den Bos and Others v Gugulethu and Others [2021]
ZAGPJHC 652 (17 August 2021) at para 29.5.

requirements of section 64 of the LRA. I am not convinced that the re was non-
compliance , which was indeed ‘ contumacious disrespect fo r judicial authority ’.

[105] In Ntsimane and Others v Memela17, the LAC considered a contempt of Court
matter and confirmed that the establishment of a wilful and mala fide
disregard of the order, beyond reasonable doubt, was essential before the
acting city manager could be found guilty of contempt of court.

[106] The threshold to find the Respondents in contempt of Court is high , and the
onus to do so is on the Applicant, which it was unable to discharge. As a
result, the contempt application has to fail.

[107] I can only express the hope that the Respondents would realise that demands
made in respect of essential services workers cannot be striked over and it
would serve no purpose to issue a strike notice in respect of such demands.
The Respondents must follow the process set out in section 74 of the LRA to
resolve disputes of mutual interest concerning essential services employees.

[108] The extent of litigation between the parties, regarding almost the same issues
and the same r elief being sought, is concerning and counterproductive . It
cannot be that , every time the Applicant approaches the Court for an urgent
order to interdict strike action concerning essential services employees, the
MECSU would simply refer another mutual in terest dispute and issue a new
strike notice with different demands , which ultimately triggers another urgent
application.

[109] This Court has limited resources , and considering the litigation history, the
disputes between the Applicant and MECSU have burdened this Court on
many occasions. The LRA has specifically crafted dispute resolution
procedures which must be followed, also in respect of disputes concerning
essential services employees. The Respondents should take note of the
provisions of the LRA and act accordingly.

17 (2021) 42 ILJ 2400 (LAC ).


Costs

[110] The last issue to be decided is the issue of costs.

[111] Insofar as costs are concerned, this Court has a broad discretion in terms of
section 162 of the LRA to make orders for costs according to the
requirements of the law and fairness.

[112] In Zungu v Premier of the Province of KwaZulu -Natal and Others ,18 the
Constitutional Court confirmed that the rule of practice that costs follow the
result does not apply in labour matters . The Court should seek to strike a fair
balance between unduly discouraging parties from approaching the Labour
Court to have their disput es dealt with and, on the other hand , allowing those
parties to bring to this Court cases that should not have been brought to Court
in the first place.

[113] This is a case where the Court has to strike a balance, considering the
requirements of law and fairnes s. In my view , the interest of justice will be
best served by making no order as to costs.

[114] In the premises , I make the following order:

Order

1. The intended strike and any conduct in contemplation or furtherance of
such strike, including picketing, pertain ing to the demands made in
respect of the Metro police officers as per the strike notice of 27 May
2025, is interdicted.
2. The strike action and any conduct in contemplation or furtherance of
such strike, including picketing, in respect of the demand made in
respect of the permanent employment of contract staff at Harambe

18 (2018) 39 ILJ 523 (CC) at para 24.

Integrated Rapid Transport Network is interdicted , pending the
outcome of the essential service determination, pending under case
no: ES 817.
3. The contempt of Court application is dis missed .
4. There is no order as to costs


_______________________
Connie Prinsloo
Judge of the Labour Cour t of South Africa


Appearances :

For the Applicant: Advocate S F Sibisi
Instructed by: Salijee Govender van der Merwe Attorney s

For the First to Fourth Respondent s: Mr V Mlungwana from MECSU