IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: 2025-188912
Not Reportable
In the matter between:
ALP AFRICA (PTY) LTD Applicant
and
NUMSA obo MEMBERS First Respondent
ECONOMIC FREEDOM FIGHTERS Second Respondent
Heard: 16 October 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 14h00 on 21 October 2025
JUDGMENT
ALLEN-YAMAN J
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Introduction
[1] The applicant initiated an application in which it sought the following orders,
‘1. Declaring the application as urgent in terms of Rule 38 of the Labour Court
Rules and that the forms and service provided for in the Rules read with
Section 68(2) of the Labour Relations Act, are dispensed with and that the
application be disposed of on an urgent basis;
2. That a rule nisi be issued calling upon the Respondents to show cause, on a
date and time to be allocated by the Registrar, why an order in the following
terms should not be made:
2.1 Interdicting and restraining the First Respondent and its members, in terms of
Section 68(1)(a) of the Labour Relations Act, from directly or indirectly
participating in the unprotected strike and furthermore from committing any
conduct in contemplation or furtherance of the unprotected strike;
2.2 Interdicting the Second Respondent and its members from interfering with the
business of the Applicant by entering its premises, making threats to
Applicant’s management, assets or any of its employees or enticing any of
Applicant’s employees to participate in the strike action;
3. That prayers 2.1 and 2.2 serve as an interim order, with immediate effect,
pending the return date to be allocated by the Registrar;
4. That the Applicant is permitted to file a supplementary affidavit by not later
than 24 October 2025, and if necessary, approach this Court on further urgent
relief should same be required;
5. That Respondents, if they so wish, must file their answering affidavits by no
later than 7 November 2025, and Applicant its replying affidavit by 14
November 2025;
6. Ordering the First Respondent to take all reasonable steps as may be
necessary to secure compliance with the Interim Order by inter alia:
6.1 Circulating and communicating the Interim Order to their members; and
6.2 Impressing on their members the need to comply with the Interim Oder;
7. Directing that service of the Interim Order shall be effected:
7. Directing that service of the Interim Order shall be effected:
7.1 On the First and Second Respondents by e-mailing a copy of the Order to the
First and Second Respondents;
7.2 On the affected employees by appointing a duly authorised employee of the
Applicant, by reading out the order and providing copies to any employee
upon their request;
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8. Costs, only to be determined on the return date, against the First
Respondent, and costs against the Second Respondent, in the event of
opposition by the Second Respondent, on Scale C including the costs of
counsel;
9. Further and / or alternative relief.’
[2] The application was opposed by the first respondent, whilst the second
respondent delivered a notice to abide. At the hearing of the matter Mr van der
Westhuizen, who appeared for the applicant, conceded that it had not made out
a case against the second respondent and that the applicant accordingly did
not persist in seeking any relief against it. Insofar as the first respondent was
concerned, the parties were ad idem that in view of the fact that a full set of
affidavits had been exchanged, the matter could be decided on a final, rather
than an interlocutory basis. The first respondent, in the interim, agreed to
suspend the commencement of the strike until such time as this court had
determined the issues in question.
Analysis
[3] The applicant’s case that the first respondent’s members’ intended strike would
be unprotected rested upon its assertion that the demand which underpinned
the proposed industrial action was unlawful. The first respondent disputed the
correctness of such view.
[4] On 10 October 2025 pursuant to the conclusion of the process of conciliation in
relation to a dispute which had been referred by the first respondent to the
Dispute Resolution Centre, and Picketing Rules having been issued, the first
respondent notified the applicant of the intention of its members employed by
the applicant to embark upon strike action. Its notice read,
‘Please note that NUMSA obo Members hereby embark upon a potential strike due to
failure by the company to apply their disciplinary code to discipline for their senior
employee the strike is in connection to section 64(1) of the LRA, 134 other mutual
interest issues. The strike will commence on the 16th October 2025.
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We give notice of a protected industrial action in terms of Section 64(4) (5) of the
Labour Relations Act 66 of 1995 as amended, we require the company to accede to
our demands and apply the company disciplinary code or place Naresh Maheshi to
other ALP Africa business unit.
Kindly note that we have attached the guideline for DRC picketing rules and certificate
of outcome.
Should the employer adhere to our proposals of moving Naresh to other ALP plant in
Africa or apply company disciplinary code, the union will engage its members and end
the strike.
The union remains available for further engagements.
We hope you find the above in order.’
[5] The demand arose out of a complaint relating to the choice of language utilised
by the applicant’s Commercial Financial Controller, Mr Naresh Maheshi,
encapsulated in the first respondent’s referral form 7.11 as, ‘The employer uses
vulgar words to employees,’ and their complaint that the applicant had failed to
apply its own disciplinary policy and code of conduct in respect of his
behaviour.
[6] In its written response to the first respondent’s notice of intention to strike, the
applicant asserted that it would not comply with the first respondent’s demands
for the reason that they did not constitute matters of mutual interest. In the
present application the applicant re- iterated that the issue was not one of
mutual interest, amongst its other contentions.
[7] In amplification of its assertion that the first respondent’s demand was unlawful
the applicant alleged that,
‘It is submitted that the demand by the First Respondent, for my removal or disciplining
me, is not a matter of mutual interest.
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It is trite law that matters of mutual interest relate to the rights regarding the
employee/employer relationship. The Labour Relations Act does not grant an
employee the right to determine the composition or removal of members of
management such remains the prerogative of the Applicant as a private entity.
Therefore, it is submitted that vis -à-vis the classification of the First Respondent’s
demand, the strike action of the First Respondent is unlawful.’
[8] It alleged further that,
‘If it is accepted that the First Respondent’s demand is a matter of mutual interest
(which is denied), and if the Applicant were to institute disciplinary proceedings against
me or remove me from my position and effect a unilateral transfer, such would be a
complete disregard of my own rights.
The dispute is not a strikable issue, but even if it was, it no longer can be so,
considering that the use of vulgar language towards Mr Monagan through a properly
constituted grievance process was resolved by agreement.’
[9] In denying the correctness of the applicant’s conclusions concerning the legality
of the demand as being one of mutual interest, the first respondent asserted in
response,
‘The content hereof is admitted. It is submitted that the averments herein is precisely
and squarely what places this dispute within the ambit of a dispute of mutual interest.
Employees who feel aggrieved by the presence of a manager who allegedly abuses
them in the workplace do not have any legal right entitling them (the employees) to
compel the employer to transfer, move or subject to disciplinary processes the
manager complained about.
It is submitted that, employees in employment law do have the right to demand, within
boundaries of lawfulness and in good faith that the employer, without violating the
rights of the manager complained about, transfer, move or subject to disciplinary
processes such manager against whom a group of workers are aggrieved.’
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[10] Insofar as the remaining allegations were concerned, the first respondent
denied the correctness thereof . In specific response to the applicant’s
assertion that the issue underpinning the demand had been settled, it asserted,
‘Mr Monagang did not accept the outcome of the grievance process hence the demand
(that the deponent be transferred, moved or subjected to disciplinary proceedings) and
dispute.’
[11] At the hearing of the matter Mr van der Westhuizen did not persist in the
argument that the demand was not one of mutual interest . In the
circumstances, the first issue to be decided is whether the demand that Mr
Maheshi be subjected to the applicant’s disciplinary processes was premised
on an issue which had previously been resolved.
[12] On 25 May 2023 one of the first respondent’s members, Mr Silias Monageng,
lodged a grievance concerning certain of Mr Maheshi ’s conduct. His complaint
concerned the manner in which Mr Maheshi addressed him in general, and in
particular, that he had been sworn at on numerous occasions. As an outcome,
Mr Monageng required the following,
‘I wish for is for my case to be escalated and resolved. I’m tired of feeling like I don’t
belong here and being disrespected. I demand the same respect I give Mr Naresh and
he must also stop with his threats towards me. I need to work freely without thinking
that what is he going to shout at me about when he comes to our department. This
whole thing is affecting my mental and emotional health. I no longer want to drag my
feet when I gave (sic) to come to work and don’t want to end up losing myself. I am
humbly requesting for intervention.’
[13] Despite the applicant’s reliance on Mr Monageng’s grievance having been
resolved, its allegations in its founding affidavit w ere unsupported by any
documentary evidence to that effect . It contented itself with the assertions that
Mr Maheshi had issued an apology to Mr Monageng in accordance with both
Mr Maheshi had issued an apology to Mr Monageng in accordance with both
the facilitator’s recommendations as well as the agreement reached between
them.
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[14] The first respondent denied that Mr Monageng’s grievance had been resolved
to his satisfaction, however no confirmatory affidavits on the part of either Mr
Monageng or his representative at his grievance hearing, Mr Patrick
Hlongwane, were delivered . Mr John Baloyi, who deposed to the first
respondent’s answering affidavit alleged no more than that he had been
involved in and represented the members of the first respondent in all the
processes relevant to the dispute to which the strike notice in question related.
That allegation cannot be interpreted to mean that Mr Baloyi was involved in Mr
Monageng’s dispute, and accordingly there is no real challenge to the
allegation that agreement had been reached between Mr Monageng and Mr
Maheshi. That resolution was recorded in the recommendation issued by Mr
Sanwabile Witbooi, the facilitator of the grievance hearing,
‘In consideration of the submissions made by both parties, the Facilitator confirms that
both parties agreed to the requests made by the other party in order to reconcile. An
apology was made by the Respondent and the Grievant.’
This court must accordingly accept the applicant’s version, that Mr Monageng’s
complaint had been resolved upon the conclusion of his grievance in July 2023.
[15] The question is then whether the issue which underpins the demand is, in fact,
the self-same issue which was previously resolved between Mr Monageng and
Mr Maheshi.
[16] On the first respondent’s version, the collective grievance was not confined to
the issue of Mr Maheshi’s choice of language vis-à-vis Mr Monageng,
‘On 25 May 2023 and on 13 February 2024 respectively, the employees of the
Applicant submitted a written group or collective grievance against the Applicant’s
manager Mr Naresh Maheshi (“Maheshi”) (the deponent to the applicant’s founding
affidavit) relating to his continuous usage of derogatory, insulting and/or inflammatory
language towards the employees in the workplace by calling and referring to the
language towards the employees in the workplace by calling and referring to the
employees as “bhencho” or “bencho”.’
1
1 It was common cause that the term is a Hindi/Urdu profanity.
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[17] The applicant’s denial in his replying affidavit that he had ever used the term
complained of after having used it in relation to Mr Monageng did not address
the separate question regarding whether this had been the first respondent’s
collective complaint. Such denial also did not accord with the statements
captured in the applicant’s own minutes of the collective grievance hearing .
This document evinced t hat whilst the individual and collective complaints had
as a point of commonality Mr Maheshi’s use of vulgar language, the y were not
the same.
[18] The issue raised as a part of the collective grievance of 2 December 2024,
which subsequently became the demand, was that,
‘Bencho – Naresh like to mention this word, what does it mean.’
[19] The facilitator’s summation of the first respondent’s complaint concerning this
particular issue was expressed in the minute as follows,
‘4.6 Respondent liked to mention the word Bancho
4.6.1 The grievant submitted that the respondent liked mentioning the word bencho
and that staff would like to know what it meant. The respondent indicated that
it was a bad swear word equivalent to the F-word or Sister F-word.
4.6.2 The grievant called Silas Monageng as a witness again and the witness
agreed. The witness indicated that the respondent had used the word
bencho especially when he was upset. The witness stated that he tried to
use it on an Indian person in an altercation and he did not get a positive
reaction. The witness stated that he told Abraham, and they googled it and
found that it was an unpleasant word.
4.6.3 No evidence was submitted by the grievant.
4.6.4 In closing the grievant submitted that they seek a good working environment
as employees are suffering and living with stress. The grievant submitted that
they are disappointed with the use of vulgar words against employees as it
was inappropriate. The grievant submitted that the Company must have a
was inappropriate. The grievant submitted that the Company must have a
strategy regarding accessing the policies and must not take time to fix
payslips.
4.6.5 The grievant submitted that the desired outcome by employees is that the
respondent must be removed from the plant as he refused to report to a
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South African senior which showed that he did not want to work with South
Africans.’
[20] Mr Maheshi, who represented the respondent at the collective grievance
hearing, was reflected as having mentioned in response that this particular
issue had previously been raised by Mr Monageng in his own grievance, in
relation to which an outcome had been delivered on 26 July 2023. He asserted
further that the parties had agreed that the matter had been resolved, and had
not been repeated. However, he was reflected as having said thereafter that,
‘5.4 The respondent stated that he apologised for the vulgar words used and that
he had not directed them at anyone specifically. The respondent stated that
he took personal responsibility for using the word bencho and that he will
improve.’
[21] The recommendation made by the facilitator in respect of this issue was,
‘The Facilitator found that the usage of abusive and / or inappropriate vulgar words is
not permitted in the workplace and the respondent must apologise to employees and
ensure that he refrains from such conduct.’
[22] In consideration of the minutes of both grievances it is evident that Mr
Monageng, in his own grievance, had complained about Mr Maheshi having
sworn at him specifically, without having particularised the word(s) he found to
have been offensive. On the other hand, the collective complaint subsequently
referred by the first respondent concerned Mr Maheshi’s use of the specific
word ‘bencho’ in relation to several of the applicant’s employees . In
circumstances in which Mr Maheshi had initially attempted to persuade the
facilitator that this issue had been resolved, he was ultimately directed, once
more, to apologise; not to Mr Monageng, but to the applicant’s employees.
[23] In the circumstances, this court does not find that the issue underpinning the
demand informing the first respondent’s members decision to embark on
industrial action is one which was previously resolved.
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[24] Finally, i nsofar as the question of the demand itself potentially infringing Mr
Maheshi’s rights were concerned, this court was referred to the matter of DPD
Laser Logistics (Pty) Ltd v Democratic True Revolutionary Union of South
Africa (DETRUSA) and Others (2024/133059) [2024] ZALCJHB 478 (27
November 2024) in which this court found that a demand that an employee be
suspended was unlawful, and that strike action in support of such demand was
prohibited.
[25] To give proper consideration to the conclusions arrived at by this court in DPD
Laser Logistics it is necessary first to have reference to the decision of the
Labour Appeal Court in TSI Holdings (Pty) Ltd and Others v National Union of
Metalworkers of SA and Others (2006) 27 ILJ 1483 (LAC) in which the court
was called upon to consider the legality of a demand by NUMSA that a senior
manager be dismissed with immediate effect. The Labour Appeal Court
accepted that it was notionally permissible for employees to engage in
industrial action in support of a demand that an employee be fairly dismissed,
2
but rejected the argument by NUMSA that the demand in question had implied
any obligation on the part of TSI to have acted fairly when dismissing the senior
manager in question. The court found that it was not possible, on the evidence
before it, to find that the employee in question could have been fairly dismissed,
for the reason that no admissible evidence served before the court upon which
it could arrive at a conclusion that such dismissal, if effected, would have been
fair.
[26] In the result, the Labour Appeal Court found,
‘Indeed, we must approach the matter on the basis that there is no evidence before us
that, if the appellant had dismissed Mr Van Zyl as demanded by the respondents, it
would have been able to prove that he had made the remarks and that there was a fair
reason for his dismissal based on his conduct. This leads inevitably to the conclusion
reason for his dismissal based on his conduct. This leads inevitably to the conclusion
that the appellant would have dismissed Mr Van Zyl unfairly if it had complied with the
respondent’s demand. Such a dismissal would have been a violation of Mr Van Zyl’s
2 At paragraph 39
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right not to be unfairly dismissed that is provided for in section 185(a) of the Act in that
there would have been no fair reason for his dismissal.’3
[27] In DPD Laser Logistics this court was called upon to determine whether the
demands issued by DEPUWSA were lawful,
‘The first demand was that Mathebula be suspended and investigated for what is
broadly said to be misconduct. The second demand was that the applicant cease
applying its own disciplinary code selectively. The question is now simply whether
either of these two demands (issues in dispute) would resort within the confines of
where strike action has been prohibited under the LRA.’
[28] With reference to TSI, it reasoned,
‘It follows that the duty would be on the trade union and employee parties (members)
making the demand for the dismissal of a particular employee, to place sufficient
evidence before the Court to satisfy the Court that there is a proper substantive reason
for dismissing the employee, and that the requirements of procedural fairness will be
met. In short, these parties must provide evidence to show that the demanded
dismissal, if perpetrated, would be substantively and procedurally fair, as contemplated
in the LRA.’
[29] In this court’s subsequent consideration of various authorities, it is evident that
it approached the question of the legality of any demand made in relation to the
discipline of employees from the premise that TSI was authority for the
proposition that a union / employees are, in the face of proceedings such as the
present application, required to demonstrate the legality of the demand. This
court is unable to agree with such an approach.
[30] An applicant such as the present who applies to court for an interdict is required
to establish, among other things, a clear right. In relation to the interdicting of
intended strike action, the right invariably relied upon is that it is not obliged to
intended strike action, the right invariably relied upon is that it is not obliged to
endure an unprotected strike. From this it follows that such an applicant is
required to establish that the intended strike will be unprotected, either with
3 At paragraph 44
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reference to the limitations established in the LRA, or the unlawfulness of the
demand itself.
[31] Where the demand is merely that the employer take disciplinary action against
a particular employee, which is neither inherently unfair nor expressly
prohibited by the LRA (in contrast to a demand that an employee be dismissed)
the applicant itself would be required to establish that the mere action of taking
disciplinary action against the employee would affect one or more of such
employee’s rights for, unlike the dismissal of an employee, the LRA does not
expressly establish the right not to be unfairly disciplined. Moreover, to require
a union / employees in motion proceedings in which an applicant seeks to
interdict a strike to establish that the taking of disciplinary action would not be
unfair would be tantamount to requiring them to establish not only the
lawfulness of the demand but also, that the employees have a right to strike
and that the applicant is not entitled to an interdict.
[32] Save for the assertion by Mr Maheshi that the taking of disciplinary action
against him would negatively impact his ‘rights’, and his further denial that he
had committed any misconduct , the applicant failed to substantiate his
assertions that the mere taking of disciplinary action against him would
somehow infringe any of his rights.
[33] As to the first respondent’s demand that Mr Maheshi be transferred elsewhere,
absent any evidence having been placed before this court concerning the
contractual arrangements between Mr Maheshi and the applicant relating to his
place of employment or the parties’ agreement concerning the possibility of his
being transferred elsewhere, this court is likewise unable to find that such a
demand is unlawful.
[34] In light of the conclusions reached, this court does not find that the first
respondent’s demand is unlawful and the application accordingly falls to be
dismissed.
Costs
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[35] The parties were in agreement that, irrespective of the outcome of the
application, each party would bear its own costs in the interests of preserving
the ongoing bargaining relationship between them.
Order
1. The application is declared to be urgent in terms of Rule 38 of the Labour Court
Rules and the forms and service provided for in the Rules read with Section
68(2) of the Labour Relations Act are dispensed with.
2. The application is dismissed.
3. There is no order as to costs.
________________________
K Allen-Yaman
Judge of the Labour Court of South Africa
Appearances
Applicant:
Mr van der Westhuizen, instructed by Schoeman Borman Inc
First Respondent:
Mr Shezi, Legal Officer of the first respondent
Second Respondent:
Mr Godrich of Garee Gordich Attorneys