THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

REPORTABLE
Case no: 2025 – 085193

In the matter between:

SINGAMANDLA First Applicant

ADFUSION CONTRACT MANAGEMENT SERVICES Second Applicant

ISILUMKO Third Applicant

LABOUR FLOW Fourth Applicant

and

SOUTH AFRICAN PUBLIC WORKERS TRADE UNION First Respondent

FOSTER KHOZA AND OTHERS Second to further Respondents

Heard: 24 July 2025
Delivered: 1 August 2025
Summary: Application to confirm rule nisi and interim order. Requirements not met
to interdict strike. Interim order confirmed only in respect of picket and violence.


JUDGMENT

2



DANIELS J

Introduction

[1] This court issued a rule nisi and interim order, interdicting strike action and
violence, on 6 June 2025. On 2 4 July 2025, the applicants sought to confirm the rule
nisi.

Material facts

[2] The facts are largely common cause:

2.1 The first applicant declares that it is a temporary employment service
(hereafter “TES” or “labour broker” ). Given the definition of a TES in section
198(1) of the Labour Relations Act No. 66 of 1995 as amended (the “LRA”)
the court understands that, for reward, the first respondent procures for , or
provides to, a client employees who perform work for the client but are
remunerated by itself.

2.2 In its founding affidavit , the first applicant states that it is “ contracted
[to] the second applicant, ACMS, for purposes of providing services. The
second applicant, in turn, is contracted with Shoprite to provide contract
management services. The second applicant has also secured the services of
the third and fourth applicant companies. Said services are provided to
Shoprite at its distribution centre”. This is a rather unusual articulation of the
business. It is hard to avoid the conclusion that this is designed to obscure the
identity of the client to whom the first applicant provides employees . It is
unclear whether the first applicant supplies employees to Shoprite, or whether
it supplies employees to ACMS.

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2.3 The first applicant cites itself as “Singamandla” though one of the
documents submitted to the CCMA 1 by its Human Resources Director ,
indicates that the correct citation of the first applicant is “LJ Personnel
Management Services trading as Singamandla”. This is strange given that the
deponent to the founding affidavit (Mr. Craven Alexander) is the same person
who completed the CCMA document.

2.4 The first respondent is a registered trade union, the South African
Public Workers Trade Union (hereafter “SAPWTU” or “the Union”). It has
members in the employ of the first applicant, and it has members in the
employ of the second,2 third3 and fourth applicants.4 SAPWTU claims that the
applicants sometimes act as a single employer and, at other times, act as
independent entities, depending on what is most suitable.

2.5 SAPWTU, in a letter dated 18 February 2025, claimed that it was
representative trade union, and requested the first applicant to grant it the
organisational rights contemplated in sections 12, 13, and 14 of the LRA.

2.6 In a letter dated 14 March 2025, the first applicant advised SAPWTU
that its request did not comply with section 21(2)(b) of the LRA and would
therefore not be considered. The first applicant made no reference to the
other requirements
5 of section 21(2) though, it appears, SAPW TU did not
comply with those requirements either.

2.7 On 24 March 2025, the SAPW TU referred a dispute, concerning
organisational rights, to the CCMA for conciliation.
6 The dispute could not be

1 Annexure E to the Founding Affidavit, Case Lines reference 002 - 26
2 Annexure M2 to the Answering Affidavit, Case Lines reference 003 – 21 to 003 – 27; see also
annexure C to the Founding Affidavit, Case Lines reference 002 – 21.
3 Annexure M5 to the Answering Affidavit, Case Lines reference 003 – 32
4 Annexure M5 to the Answering Affidavit, Case Lines reference 003 – 33

4 Annexure M5 to the Answering Affidavit, Case Lines reference 003 – 33
5 SAPWTU was required to attach a certified copy of its certificate of registration to the request for
organisational rights.
6 The CCMA referral to conciliation is not included in the court papers.

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resolved at conciliation, and the CCMA issued a certificate of outcome of
conciliation on 22 April 2025. At approximately 12h07 that same day, the first
applicant submitted a request for arbitration to the Union and the CCMA.
7 It
appears that the first applicant made the request for arbitration immediately
after it had received the certificate of outcome of conciliation.

2.8 On or about 30 April 2025, an inflammatory voice note was circulated,
by the regional or general secretary of the SAP WTU, threatening violence
against those who refused to support the strike. The applicants’ attorney
directed a letter to the Union demanding the retraction of the voice note and
an apology. This did not materialize, nor did the Union deny that the voice
note emanated from its leadership.

2.9 On 5 June 2025, SAPWTU issued a notice to the first applicant giving it
notice of its members ’ intention to embark on protected strike action. In the
letter, the Union indicated that it had demanded organi sational rights in terms
of section 21 of the LRA and the dispute remained unresolved after
conciliation. The strike notice indicated that the strike rs would gather at the
Shoprite Distribution Centre.

2.10 By the return date, no picketing rules were issued by the CCMA in
terms of section 69(5) of the LRA , though the strike notice suggests that the
strikers would picket in support of the strike. It is common cause that there is
no collective agreement establishing picketing rules.

2.11 The annexures to the founding and answering affidavits suggest that
the Union has, unsuccessfully, sought organisational rights from the second to
fourth applicants.


7 Annexure E to the Founding Affidavit, Case Lines Reference 002- 25; see also annexure H to the
Founding Affidavit where Kirchmanns Inc state that the request for arbitration was made “at the same
time” as the issue of the certificate of outcome of conciliation, Case Lines Reference 002 – 43

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2.12 SAPWTU alleges that the applicants are behaving in a male fide
manner and are intent on using whatever means are available to frustrate the
union in its desire to secure organisational rights.

Relevant provisions of the LRA

[3] The following provisions of the LRA are relevant:

3.1 Sections 11 to 15 permits trade unions to request an employer to grant
it the organi sational rights contemplated by those sections. If the employer
refuses to grant the organisational rights, the union or the employer may refer
a dispute to the CCMA for conciliation in terms of section 21(4).

3.2 Section 21(7) provides that, i f the dispute remains unresolved after
conciliation, either party to the dispute may request that the dispute be
resolved through arbitration.

3.3 Section 65(1) provides: “ No person may take part in a strike or a
lockout or in conduct in contemplation or furtherance of a strike action or
lockout if:
(a) …
(b) …
(c) if the issue in dispute is one that a party has a right to refer to
arbitration, or the Labour Court, in terms of the LRA or any other employment
law”.

3.4 Section 65(2)(a) provides: “Despite section 65(1)(c), a person may take
part in a strike or a lockout or in any conduct in contemplation or in
furtherance of a strike or lockout if the issue in dispute is about any matter
dealt with in sections 12 to 15”.

3.5 Section 65(2)(b) provides that, if a trade union has issued a strike
notice about any matter dealt with in sections 12 to 15, it may not request

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arbitration in terms of section 21 for a period of 12 months from the date of the
notice.

3.6 Section 65(3)(a)(i) provides that “ subject to a collective agreement no
person may take part in a strike or a lockout or in any conduct in
contemplation or furtherance of a strike or lockout if that person is bound by
any arbitration award or collective agreement that regulates the issue in
dispute”.
(own emphasis)

[4] At first blush, there appears to be a conflict between section 21(7) and
65(2)(a) of the LRA. This is explored below.

Legal principles and analysis

[5] The applicant seeks final relief and must therefore satisfy three essential
requisites namely:
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(a) a clear right of the party asserting it;
(b) an injury actually committed or reasonably apprehended; and
(c) the absence of any other satisfactory remedy that may have been
available to the party seeking the interdict.

[6] The employer cannot exercise its right to request arbitration in terms of
section 21(7). Before the employer may exercise its right under section 21(7), the
jurisdictional prerequisites in the LRA must be met. The LRA requires that there be a
prior request for organisational rights, one which complies with section 21(1) and (2).
As explained in para 2.6 above, on the first applicant’s own version, there was no
such request. In the circumstances, the prohibition on strike action contemplated in
section 65(1)(c) does not arise.


8 Setlogelo v Setlogelo 1914 AD 221; Minister of Health v Drums & Pails Reconditioning CC t/a
Village Drums & Pails 1997 (3) SA 867 (N) at 872C

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[7] The right of employees to engage in strike action is a fundamental right
enshrined in our constitution. It is an individual right, though it may only be exercised
collectively. As a constitutional right , our courts are enjoined to avoid restricting the
right more than is expressly required by the language of the LRA. Furthermore, the
limitation must be strictly constrained by the purpose of the limitation. This principle
was captured by our apex court in SA Transport & Allied Workers Union & others v
Moloto NO & another as follows:
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“The right to strike is protected as a fundamental right in the Constitution
without any express limitation. Constitutional rights conferred without express
limitation should not be cut down by reading implicit limitations into them and
when legislative provisions limit or intrude upon those rights they should be
interpreted in a manner least restrictive of the right if the text is reasonably
capable of bearing that meaning.”

[8] Even if my analysis in paras [6] is incorrect, I cannot accept that an employer
party is permitted to frustrate the constitutional right to strike in the manner proposed
by the first applicant. If the first applicant’s proposition were upheld, section 65(2)(a)
would be hollowed out and rendered meaningless. The first applicant contends that a
limit on the right to strike must be implied in section 65 of the LRA, when the
legislation does not expressly provide for it . As the apex court warned, this is
impermissible. I do not accept that section 21(7) is reasonably capable of the
interpretation
10 the first applicant seeks to impose on it – that it takes precedence
over section 65(2)(a). The legislature did not choose to make section 65(2)(a)
subordinate to section 21(7), or it would have stated as much.

[9] I am fortified in my view by the difference in wording in section 21(7), on the
one hand, and sections 65(1)(c) and 65(2)(a) on the other. Section 21(7) refers to a

one hand, and sections 65(1)(c) and 65(2)(a) on the other. Section 21(7) refers to a
“dispute” which may be referred to arbitration. The dispute in that instance would be
about whether the union is representative or (where the employer agrees that the

9 (2012) 33 ILJ 2549 (CC) at para [43]
10 Investigating Directorate: Serious Economic Offences & others v Hyundai Motor Distributors (Pty)
Ltd & others: In re Hyundai Motor Distributors (Pty) Ltd & others v Smit NO & others 2001 (1) SA 545
(CC) at para [23]

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union is representative) the manner in which such rights are to be exercised. Section
65(1)(c) and 65(2)(a), on the other hand, refers to the “issue in dispute”. The issue in
dispute is the demand, grievance, or the dispute that forms the subject matter of the
strike.
11 In a strike where organi sational rights are the “issue in dispute” the union
does not seek an acknowledgement that it is representative. Instead, it seeks the
organisational rights themselves. That is its demand or grievance.

[10] When statutes are interpreted, courts are required to have regard to the
interpretative triad of language, context, and purpose. This is fully explained in Natal
Joint Municipal Pension Fund v Endumeni Municipality .
12 I believe the interpretation
adopted in paras [8] and [9] above, is consistent with the language, context, and
purpose of the LRA. The language and context are apparent from my analysis above
and require no further explanation. As to the purpose, it is trite that one of the
primary purposes of the LRA 13 is to give effect to the constitutional right to strike,
which requires that the right be interpreted in the least restrictive manner.

[11] The first applicant contends that Zondo JP (as he then was) held in Bader
Bop v National Union of Metal and Allied Workers of South Africa 14 that an employer
may frustrate the exercise of the right to strike by making a referral to arbitration in
terms of section 21(7) and that this court is bound by such finding. This argument is
based on a misunderstanding of the judgment. The former Judge President found
that the issue of an arbitration award could frustrate any strike because there would
no longer be a live dispute. This is apparent from para [45]. More importantly, the
comments by the former Judge President were unsupported by Du Plessis JA and
do not form part of the ratio decidendi . In that dispute, the employer had not made
any request for arbitration in terms of section 21(7). In any event, the Constitutional
Court

any request for arbitration in terms of section 21(7). In any event, the Constitutional
Court
15 made it clear that the comments by the former Judge President are not
binding. On behalf of the majority of the court , Justice O’ Regan stated: “ I conclude

11 See the definition of “issue in dispute” in section 213 of the LRA.
12 2012 (4) SA 593 (SCA) at para [18]
13 Section 1(a), read with section 3(a) and (b) of the LRA.
14 (2002) 23 ILJ 104 (LAC)
15 National Union of Metalworkers of SA & others v Bader Bop (Pty) Ltd and another (2003) 24 ILJ
305 (CC) at para [45]

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therefore that the relevant provisions of the Act can be read so as to avoid the
limitation of fundamental rights occasioned by the interpretation placed upon those
provisions by the LAC. It must follow that the interpretation adopted by the majority in
the LAC is not the constitutionally appropriate interpretation of the relevant
provisions of the Act. “

[12] In Bader Bop the Constitutional Court held as follows at para [25]: “Sufficiently
representative trade unions, and those unions that claim to be sufficiently
representative, may seek to enforce those organizational rights which they claim the
Act confers upon them by adjudication (mediation and arbitration) or by industrial
action. It is not clear what options (if any) those unions that are not sufficiently
representative to be the beneficiaries of the rights conferred by chapter III part A of
the Act have to obtain organizational rights. There is no express provision of the Act
regulating their position. The question that arises is whether the Act must necessarily
be interpreted to preclude non- representative unions from obtaining organizational
rights, either through agreement with the employer, or through industrial action.” At
para [44], the Constitutional Court gave the employer’s argument, that the union had
asserted that it was a representative trade union in its referral to conciliation and it
was therefore bound to follow the path to arbitration, short shrift. That principle
applies here too.

[13] There is a further reason why the first applicant cannot succeed in this matter.
It is plain that the first applicant made its request for arbitration to frustrate the right
to strike. It made the request for arbitration on the same date, and at the same time,
that the CCMA issued a certificate of outcome of conciliation. Its haste to commence
arbitration is wholly inconsistent with its earlier technical approach that the request
for organisational rights was defective.

for organisational rights was defective.

[14] Given my analysis of section 21 and section 65 above, I find that the first
applicant has failed to demonstrate a clear right to an interdict of the strike action. It
is therefore unnecessary to consider the further requirements for final relief.

Interdict of the picket

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[15] The LRA prohibits a picket in the absence of picketing rules, whether agreed
between the parties, or determined by the commissioner conciliating the dispute.
This is apparent from section 69(6C) which is unambiguous in its terms. It is
common cause that there are no picketing rules, whether agreed or determined by
the CCMA. The Union denies that it intends to picket, but the strike notice itself
suggests otherwise. In the circumstances, I am inclined to interdict any picketing until
picketing rules are established. In the exercise of my broad powers under section
158(1)(a)(iii) of the LRA, it is necessary and desirable to direct the CCMA to issue
picketing rules without delay.

Threats of violence and intimidation

[16] The first applicant alleges that the Union’s leadership has made statements of
an inflammatory nature. The Union has not denied this as one might have expected.
In the circumstances, I a m inclined to issue an order interdicting violence or threats
of violence.

Costs

[17] Mulcting a party with costs can strain the relationship, and hinder the
resolution of the underlying dispute. 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

[18] In my view, for the reasons explained above, the strike and participation in the
strike is protected. The relief to be granted is restricted to an interdict against
picketing and violence.


16 (2018) 39 ILJ 523 (CC) at para 25

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[19] In the result, the following order is made:
1. Prayers 2.2, 2.2 and 2.3 of the interim order issued by Prinsloo J on 6
June 2025 are made final;
2. The CCMA is directed to issue picketing rules as a matter of urgency;
3. There is no order as to costs.

R Daniels
Judge of the Labour Court of South Africa

Appearances:

For the Applicants:
Adv M Meyerowitz
Kirchmanns Inc

For the Respondents:
Union Official