THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: 2025 – 179697
In the matter between:
VANGUARD OF ORGANISED LABOUR (VOOLA) Applicant
and
SIPHO MAHLANGU AND OTHERS Respondents
Heard: 21 October 2025
Delivered: 4 November 2025
This judgment / reasons were handed down electronically by circulation to the
parties' legal representatives by email. The date and time for hand- down is
deemed to be 4 November 2025
Summary: Urgency – applicant must establish compelling considerations of
urgency – proper case of urgency not shown – urgency self-created – other
means to deal with dispute available – matter not urgent
Jurisdiction – Court not having general jurisdiction to determine dispute just
because it involves a trade union constitution – jurisdiction must be founded
2
on particular provision of LRA – no such jurisdiction possible save for s
158(1)(e) of the LRA – applicant however not pleading reliance on such section
S 158(1)(e) of LRA – jurisdiction considered – Court having jurisdiction in
dispute between trade union and members – dispute exists between individual
trade union functionaries (officials) or between trade union and its employees
– not dispute between trade union and members inter se – Court not having
jurisdiction in terms of s 158(1)(e)
Jurisdiction – jurisdiction determined on case as pleaded – applicant pleading
breach of trade union constitution – applicant not indicating on what basis
Court has jurisdiction to consider such claim for breach – dispute between
branch of trade union and trade union – Court has no jurisdiction to determine
such dispute
Trade union – branch not separate legal entity but part of trade union –
respondents employed as officials – may fulfil trade union functions whilst still
employed – internal dispute that does not engage Court’s jurisdiction
Jurisdiction – application dismissed for want of jurisdiction
JUDGMENT
SNYMAN, AJ
Introduction
[1] This judgment concerns an urgent application by the applicant, in which the
applicant seeks final relief against two of its officials who are also its
employees (being the respondents ), wh ich respondents are current ly
operating and conducting a branch of the applicant in the North West
Province. According to the applicant, the operating of this branch constitutes a
violation of its constitution, and as such, the respondents must be interdicted,
in a variety of respects, from perpetrating conduct that would be tantamount to
operating such branch.
3
[2] It is unclear on what basis the applicant has brought the application, and in
particular, why this Court would have jurisdiction to entertain the same. It is of
course trite that jurisdiction is determined on the basis of the case as pleaded
by the applicant. 1 In the case of motion proceedings, such pleadings would
constitute the notice of motion and founding affidavit. The notice of motion
gives no indication on what basis the application is brought, and simply prays
for relief. Where it comes to the founding affidavit, the applicant pleads that
the respondents unlawfully operate a branch of the applicant , and then refers
to the provisions of the constitution of the applicant that has been breached, in
substantiation of this allegation of unlawful behaviour . The applicant certainly
does not indicate on which of the provisions in the LRA it does rely upon, in
bringing this application.
[3] But what is at least clear is that the applicant is seeking final interdictory relief.
This means the applicant must satisfy three essential requirements, being: (a)
the existence of a clear right; (b) an injury actually committed or reasonably
apprehended; and (c) the absence of any other satisfactory remedy. 2 Also,
and because the applicant is seeking such final relief in motion proceedings,
any factual disputes between the parties must be determined on the basis of
the principles set out in the judgment of Plascon Evans Paints v Van
Riebeeck Paints. 3 In short, it means that it is the admitted or undenied facts
together with the facts as stated by the respondent s that must be utilized in
deciding this matter. The only exception would be if the respondent s simply
1 See Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 75; Mbatha
v University of Zululand (2014) 35 ILJ 349 (CC) at para 157; Ekurhuleni Metropolitan Municipality v
SA Municipal Workers Union on behalf of Members (2015) 36 ILJ 624 (LAC) at para 21; Moodley v
Department of National Treasury and Others (2017) 38 ILJ 1098 (LAC) at para 37; Mohlomi v
Ventersdorp/Tlokwe Municipality and Another (2018) 39 ILJ 1096 (LC) at para 42; Public Servants
Association on behalf of Members v Minister of Health and Others (2019) 40 ILJ 193 (LC) at para 15.
2 Setlogelo v Setlogelo 1914 AD 221 at 227; V & A Waterfront Properties (Pty) Ltd and Another v
Helicopter & Marine Services (Pty) Ltd and Others 2006 (1) SA 252 (SCA) at para 20; Royalserve
Cleaning (Pty) Ltd v Democratic Union of Security Workers and Others (2012) 33 ILJ 448 (LC) at para
2; Van Alphen v Rheinmetall Denel Munition (Pty) Ltd (2013) 34 ILJ 3314 (LC) at para 7.
3 1984 (3) SA 623 (A) at 634E -635C; See also Jooste v Staatspresident en Andere 1988 (4) SA 224
(A) at 259C – 263D; National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at paras
26 – 27; Molapo Technology (Pty) Ltd v Schreuder and Others (2002) 23 ILJ 2031 (LAC) at para 38.
4
offer a bald denial, or the facts as stated by the respondent s are patently
false, absurd or fanciful.4
[4] The matter first came before me for argument on 9 October 2025. On that
day, the respondents referred to some or other earlier / other proceedings in
this Court , which were not before me, in which they purportedly presented
proof that they were lawfully conducting the North W est branch of the
applicant, with the knowledge and agreement of the general secretary of the
applicant, Patrick Tshabalala (Tshabalala), and had been doing so for some
time. I pointed out that this proof was not before me, however I did say that I
considered it important that I be provided with such proof , so as to decide this
matter on a properly informed basis and in a fair manner. I then postponed the
matter to 21 October 2025 for final argument, and afforded the respondents
leave to file a supplementary answering affidavit with supporting documents,
and to the applicant to file a supplementary replying affidavit should it
consider it necessary to do so. The respondents subsequently did file a
supplementary answering affidavit and supporting documents on 17 October
2025. The applicant elected not to file a further replying affidavit. After hearing
argument by the parties on 21 October 2025, I reserved judgment.
[5] In my view, this matter can be disposed of on two grounds, without even
becoming embroiled in deciding the merits of the case. These grounds are the
lack of urgency, and an absence of jurisdiction. I will first deal with the issue of
a lack of urgency.
Urgency
[6] Urgent applications are governed by Rule 38 of the Labour Court Rules, being
the successor to the erstwhile Rule 8. The Court in Jiba v Minister:
Department of Justice and Constitutional Development and Others 5 applied
Rule 8 as follows:
4 See Minister of Justice and Correctional Services and others v Tshifhango and Another [2019] 7
BLLR 627 (LAC) at para 26; TIBMS (Pty) Ltd t/a Halo Underground Lighting Systems v Knight and
Another (2017) 38 ILJ 2721 (LAC) at para 29; SA Football Association v Mangope (2013) 34 ILJ 311
(LAC) at para 12.
5 (2010) 31 ILJ 112 (LC) at para 18.
5
‘Rule 8 of the rules of this court requires a party seeking urgent relief to set
out the reasons for urgency, and why urgent relief is necessary. It is trite law
that there are degrees of urgency, and the degree to which the ordinarily
applicable rules should be relaxed is dependent on the degree of urgency. It
is equally trite that an applicant is not entitled to rely on urgency that is self
created when seeking a deviation from the rules.’
These same considerations, in my view, equally apply to Rule 38.
[7] When c onsidering whether urgency has been established, it must be
considered whether an applicant would not be afforded substantial redress in
due course, and the applicant must provide proper reasons in support of a
case that this would not be possible. 6 As succinctly described by the Court in
Maqubela v SA Graduates Development Association and Others7:
‘Whether a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set out and secondly
whether the applicant seeking relief will not obtain substantial relief at a later
stage. In all instances where urgency is alleged, the applicant must satisfy the
court that indeed the application is urgent. Thus, it is required of the applicant
adequately to set out in his or her founding affidavit the reasons for urgency,
and to give cogent reasons why urgent relief is necessary. …’
[8] Where an applicant in effect seeks final relief, the Court must be even more
circumspect when deciding whether or not urgency has been established. 8 In
Tshwaedi v Greater Louis Trichardt Transitional Council9 the Court said:
‘… An applicant who comes to court on an urgent basis for final relief bears
an even greater burden to establish his right to urgent relief than an applicant
who comes to court for interim relief. ….’
6 Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC) at para 17;
East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL
28244 (GSJ) at para 6.
7 (2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus
Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.
8 [2002] JOL 9452 (LC) at para 8.
9 [2000] 4 BLLR 469 (LC) at para 11.
6
[9] The Court must also further consider the interest s of the respondent party,
and in particular, the prejudice the respondent may suffer if the matter is
urgently disposed of. In Association of Mineworkers and Construction Union
and Others v Northam Platinum Ltd and Another
10 the Court held as follows:
‘But it is not just about the applicant. Another consideration is possible
prejudice the respondent might suffer as a result of the abridgement of the
prescribed time periods and an early hearing.’
[10] Finally, urgency must not be self -created by an applicant, as a consequence
of the applicant having not brought the application at the first available
opportunity.11 As the Court said in Northam Platinum supra12:
‘… the more immediate the reaction by the litigant to remedy the situation by
way of instituting litigation, the better it is for establishing urgency. But the
longer it takes from the date of the event giving rise to the proceedings, the
more urgency is diminished. In short, the applicant must come to Court
immediately, or risk failing on urgency. …’
[11] When the above considerations with regard to urgency are then applied to
applicant’s application and its case of urgency in casu, I am compelled to
conclude that the re simply exists no basis on which to urgently intervene in
this matter. As a point of departure, the applicant has actually made out no
case of urgency at all, an issue properly pointed out by the respondents when
the matter was argued. I believe that the applicant considered itself entitled to
bring this application on the basis of urgency, simply because of the fact that it
was alleging a violation of its constitution by the respondents . Such an
approach would of course be patently wrong. No matter what the underlying
cause of action may be, where an urgent application is brought, the
prescribed considerations of urgency must always be satisfied. If not, this
Court could be turned into a free for all by any litigant who believes it has
Court could be turned into a free for all by any litigant who believes it has
10 (2016) 37 ILJ 2840 (LC) at para 26. See also IL & B Marcow Caterers (Pty) Ltd v Greatermans SA
Ltd and Another 1981(4) SA 108 (C) at 113D-114C.
11 See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24;
National Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum Ltd and Western
Platinum Ltd and Another (2014) 35 ILJ 486 (LC) at para 50.
12 (supra) at para 26. See also Sihlali and Others v City of Tshwane Metropolitan Municipality and
Another (2017) 38 ILJ 1692 (LC) at para 18.
7
been subjected to unlawful behaviour. In Northam Platinum supra13 the Court
had the following to say:
‘Whilst it may be so that a dismissal could in particular circumstances, and
where the LRA is not relied upon, be considered to be unlawful and
consequently invalid because of a specific provision in a contract of
employment which has been breached, this cannot per se serve to jump the
queue of all other dismissed employees relying on the provisions of the LRA
waiting for their turn in court. This kind of situation is merely another cause of
action upon which the termination of a contract of employment can be
challenged in the Labour Court. But other than that it holds no particular
magic.’
[12] In casu, the dispute is nothing else but a dispute concerning a n agreement,
albeit in the form of the applicant’s constitution.14 It is clear from the affidavits
firled that the applicant (in particular Tshabalala) and the respondents have
differing views on how the applicant’s constitution must be interpreted and
applied. To describe it is simply as possible, it is about whether the conduct of
the respondents is in breach of such agreement. The same sentiments
expressed in Northam Platinum supra would in my view equally apply where it
comes to deciding this matter, in this context, as one of urgency . The
applicant has presented no reason at all why such a dispute concerning the
interpretation of an agreement cannot be pursued to finality in the ordinary
course. There has been absolutely no case made out by the applicant of any
exceptional circumstances that would substantiate urgent intervention in this
dispute on a final basis, as the applicant is not even seeking interim relief.
[13] The situation is made worse by the applicant failing to bring this application at
the earliest available opportunity. It is clear from the documentary evidence
put up by the respondents, whose version must prevail, that the applicant was
put up by the respondents, whose version must prevail, that the applicant was
13 Id para 6. See also National Education Health and Allied Workers Union and others v University of
South Africa and Another (2022) 43 ILJ 2351 (LC) at para 8; Maphalle v National Heritage Council
and Others (2023) 44 ILJ 579 (LC) at paras 2 – 3.
14 In National Union of Metalworkers of SA v Lufil Packaging (Isithebe) (A Division of Bidvest
Paperplus (Pty) Ltd) and Others (2020) 41 ILJ 1846 (CC) at para 53 said that a trade union
constitution is: ‘ … a voluntary association with rules and annexures that collectively form the
agreement entered into with its members. The constitution must be interpreted in accordance with the
ordinary rules of construction applying to contracts in general …’.
8
fully aware as far back as April 2023 that the respondents were operating a
branch of the applicant in Lichtenburg in the North West province. In fact,
there is a resolution signed by the general secretary (Tshabalala himself)
dated 7 April 2023 confirming the establishment of the branch. Then there are
several items of correspondence in the course of 2024 relating to the
conducting of trade union business at the branch, between the respondents
and Tshabalala. What appears to have actually happened is that in the course
of 2025, a dispute developed between Tshabalala and the respondents with
regard to trade union affairs and expenses, and this prompted Tshabalala to
write to the respondents on 15 September 2025, to the effect that their
complaints were not recognised by the applicant and that no valid branch had
been established. In what was called a final notice on 25 September 2025, the
respondents were informed by Tshabalala that they were operating the
branch unlawfully and that they had to cease and desist from doing so within
24 hours.
[14] The point is that nothing changed between April 2023 when it was resolved to
establish the North West branch, and September 2025 when Tshabalala
demanded that the respondents cease operating the branch, other than the
fact that there was now a dispute between Tshabalala and the respondents
with regard to trade union affairs, the details of which need not concern this
judgment. If the branch was unlawfully established and operated, for want of
compliance with constitution of the applicant, it should have been remedied as
far back as 2023. There is no explanation by the applicant why steps in this
regard were only taken in September 2025. This delay is simply undue, and
excessive, and required a proper explanation to justify it. None exists, which
leaves an unexplained excessive delay, which must be destructive of urgency.
[15] For the applicant to write some letters in September 2025 in which the
[15] For the applicant to write some letters in September 2025 in which the
respondents are instructed to ‘cease and desist’ from operating the branch
because it was not lawful to do so for want of compliance with the applicant’s
constitution, and then allege this establishes urgency, is in my view a classic
case of self -created urgency. The point is simple. The basis for the relief
sought in this case must have been apparent as far back as April 2023. If it
9
was such a problem that urgent intervention is required, it could and should
have been done back then.15 However, and back then, it was not a problem,
because everyone was friends. But now, in the latter half of 2025 when a
dispute had arisen and everyone was no longer friends, then the issue had to
be urgently resolved. This is simply not on.
[16] As part of any case of urgency, the interests of the respondents must also be
considered. They have been dragged to Court on an urgent basis to finally
justify their conduct, when these is no reason why this could not be presented
and assessed in the ordinary course. It is quite unfair to expect the
respondents to finally answer such case, on an urgent basis, which is actually
evident fr om what came out when I afforded them an opportunity to put
forward evidence to substantiate their position. I am quite sure that there is
substantially more evidence that would come out in the wash, if this matter is
conducted in the ordinary course, as it should.
[17] Therefore, the applicant has failed to make out a case of urgency. The
requirements of Rule 38 have thus not been satisfied. In sum, there is actually
a delay of more than two years which is completely unexplained. For the
applicant to in essence rely on letters of demand sent to the respondents only
in September 2025 as a basis to substantiate urgency, is clearly a matter of
self-created urgency. There is a complete absence of any ex ceptional
circumstances justifying urgent intervention, and no such case has even been
made out by the applicant. And finally, the applicant should pursue this matter
in th e ordinary course. For these reasons alone, the application falls to be
struck from the roll, or be dismissed. The Court in February v Envirochem CC
and Another 16 accepted that urgency was not established, but the Court
nonetheless proceeded to dismiss the matter. For the reasons to follow, I
believe that this is a similar situation where the matter must be finally
believe that this is a similar situation where the matter must be finally
15 Compare the examples found in Coetzee and Others v Knysna Presbytery of the Dutch Reformed
Church and Others 2025 JDR 3962 (WCC) at paras 11 – 14; Vumatel (Pty) Ltd v Majra and Others
(2018) 39 ILJ 2771 (LC) at paras 16 – 18.
16 (2013) 34 ILJ 135 (LC) at para 17. See also National Union of Metalworkers of SA and Others v
Bumatech Calcium Aluminates (2016) 37 ILJ 2862 (LC) at para 33; Bethape v Public Servants
Association and Others [2016] ZALCJHB 573 (9 September 2016) at para 53; Rail Refurb CC v South
African National Road Agency 2023 JDR 3545 (GP) at para 22; National Association of SA Workers
on Behalf of Members v Kings Hire CC (2020) 41 ILJ 685 (LC) at para 32.
10
disposed of and dismissed, because of a want of jurisdiction to even grant the
applicant the relief sought.
Jurisdiction
[18] In Du Plessis v Public Protector and Others17 the Court said:
‘Jurisdiction cannot be assumed or implied. It either exists or it does not.
Jurisdiction is the power of the Court to decide a matter that has been brought
before it. If the Court does not have the power to do so, it cannot consider the
matter, no matter what the merits or equities may be …’
[19] In Gcaba v Minister for Safety and Security and Others 18, the Court described
the concept of ‘jurisdiction’ as follows: ‘… The specific term 'jurisdiction', which
has resulted in some controversy, has been defined as the 'power or
competence of a court to hear and determine an issue between parties … ’.
And in Makhanya v University of Zululand 19, the Court also dealt with the
meaning of jurisdiction as follows: ‘…. Judicial power is the power both to
uphold and to dismiss a claim. It is sometimes overlooked that the dismissal
of a claim is as much an exercise of judicial power as is the upholding of a
claim. A court that has no power to consider a claim has no power to do either
(other than to dismiss the claim for want of jurisdiction).’
[20] The jurisdiction of the Labour Court is defined in section 157 of the Labour
Relations Act (LRA)
20. It is critical to appreciate that section 157(1) does not
establish a general jurisdiction that the Labour Court can exercise, in all
instances where a litigating party approaches the Labour Court and pleads
the dispute is one related to an employment law matter.
21 In order for the
Labour Court to have jurisdiction, the issue for determination must be
17 (2020) 41 ILJ 919 (LC) at para 20. See also Makhanya v University of Zululand (2009) 30 ILJ 1539
(SCA) at para 23; SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) at para 8.
18 (2010) 31 ILJ 296 (CC) at para 74.
19 (2009) 30 ILJ 1539 (SCA) at para 23.
20 Act 66 of 1995 (as amended)
19 (2009) 30 ILJ 1539 (SCA) at para 23.
20 Act 66 of 1995 (as amended)
21 In Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC) at para 24, it was held: ‘… Crucially,
s 157(1) does not afford the Labour Court general jurisdiction in employment matters … ’ See also
Soobedar and Another v Minister of International Relations and Cooperation and Another (2021) 42
ILJ 1761 (LC) at para 12; Booysen v Beaufort West Municipality and Another (2021) 42 ILJ 2415 (LC)
at para 5.
11
specifically provided for in the LRA, or in any other related employment law,
such as for example the Employment Equity Act (EEA) 22 or Basic Conditions
of Employment Act (BCEA) 23, to be decided by the Labour Court . The
applicant must also indicate on what provision in any of these items of
legislation the applicant relies.
24
[21] The whole issue of the lack of general justification of the Labour Court in what
may be termed any employment related dispute was recently revisited in
Cibane and Another v Premier of Province of Kwazulu- Natal25, where the
Court pertinently held, in the context of the Labour Court intervening in
incomplete disciplinary proceedings in an employer:
‘In the absence of any statutory provision conferring jurisdiction on the
Labour Court both in respect of employer conduct alleged to be unlawful and
in employment-related matters generally, there can thus be no general rule,
as the judgment in Booysen might be construed, to the effect that the Labour
Court has jurisdiction to intervene in medias res to restrain any alleged
illegalities, irregularities or unfairness in incomplete disciplinary proceedings.’
The same, in my view, clearly applies to any situation where urgent
intervention by the Labour Court is sought under section 158(1) of the LRA.
[22] That then brings me neatly to a consideration of section 158(1) itself. This is
the section that deals with the powers of the Labour Court. Whilst it must
generally be said that the powers of the Labour Court under section 158(1)
can only be exercised if the Labour Court is f irst conferred with jurisdiction by
virtue of other provisions in the LRA or any employment law, and that section
22 Act 55 of 1998 (as amended).
23 Act 75 of 1997 (as amended).
24 In SA Medical Association Trade Union on Behalf of Rikhotso v Member of the Executive Council,
Department of Health, Limpopo Province and Others (2023) 44 ILJ 1779 (LC) at para 6, the Court
said: ‘… an applicant must necessarily identify the statutory provision that confers jurisdiction on the
court …’. In Booysen (supra) at para 5, it was held that: ‘… A party referring a dispute to this court for
adjudication must thus point to a provision of the LRA or some other law to establish that the matter is
one over which this court has jurisdiction …’. See also Shezi v SA Police Service and Othe rs (2021)
42 ILJ 184 (LC) at para 10.
25 [2025] 10 BLLR 1004 (LAC) at para 27.
12
158 in itself cannot be said to afford the Labour Court jurisdiction 26, it is in
reality not as simple as that. It has been recognised that there are in essence
two categories of powers envisaged by section 158(1) . The first category is
those powers that can only be exercised if it is first found that the Labour
Court has jurisdiction on another basis . The second c ategory is what can be
described as jurisdiction conferring powers, meaning that the power itself
establishes jurisdiction. This was made clear in South African Municipal
Workers Union and Others v Mokgatla and Others27, as follows:
‘… While s 157(1) and (2) relate, broadly, to the jurisdiction of the Labour
Court, s 158(1) both lists specific remedial powers and provides substantive
jurisdictional bases of that court. …’
And as held in Du Plessis supra:28
‘This then only leaves s 158. Even though this provision on face value
appears to deal with powers that are conveyed to the Labour Court only once
jurisdiction is first established to exist, this section must be read in conjunction
with s 157 as a source of jurisdiction as well …’
[23] This duality, for the want of a better description, where it comes to the nature
of the powers of the Labour Court under section 158(1) , was pertinently dealt
with in Merafong City Local Municipality v SA Municipal Workers Union and
Another29. In that judgment, the Court accepted that s ection 157 is the
primary provision in the LRA which deals with the Labour Court's
jurisdiction,30 however the Court added that section 157(1) : ‘… directs the
reader of that section to the sources of the Labour Court's exclusive
jurisdiction, albeit in very vague and general terms …’. Because of this, the
26 See National Union of Metalworkers of SA v Tshwane University of Technology (2020) 41 ILJ 2686
(LC) at paras 18 – 19; Natal Sharks Board v SA Commercial Catering and Allied Workers Union and
Others (1997) 18 ILJ 1324 (LC) at 1327G-I; Besani v Maquassi Hills Local Municipality (2016) 37 ILJ
1386 (LC) at para 19; Strydom v Arcelormittal SA (2024) 45 ILJ 931 (LC) at para 42; Moropane v
Gilbeys Distillers and Vintners (Pty) Ltd and Another (1998) 19 ILJ 635 (LC) at 638E-F.
27 2016 (5) SA 89 (SCA) at para 11.
28 Id at para 24.
29 (2016) 37 ILJ 1857 (LAC).
30 Id at para 28.
13
Court expressed the view that: 31 ‘… As a result, the interpreter is saddled
with the difficult task of having, for example, to distinguish purely jurisdictional
provisions from general empowerment provisions. This difficulty is
exacerbated by sections which purport to contain mere empowerment
provisions, whereas they, on proper construction, also actually contain
provisions which are sources of the Labour Court's jurisdiction ’. That all being
said, the Court then concluded:
32
‘Section 158 is such a section. Its introductory wording specifically states that
it deals with the powers of the Labour Court. Because the introductory words
of the previous section, that is s 157, state that it deals with the jurisdiction of
the Labour Court, the immediate expectation is that s 158 is not a source of
jurisdiction, but merely contains provisions defining the powers of the Labour
Court in respect of matters, which, in terms of some other provision in that
Act, fall under the jurisdiction of the Labour Court. However, a close reading
of the entire s 158 dispels that initial notion. It does deal with powers (post
jurisdiction), but also with powers which cannot but be construed and
understood as sources of jurisdiction
.’
[24] The Court in Merafong supra provided examples of provisions found in
section 158(1) that conferred jurisdiction, as opposed to those that could only
be exercised if jurisdiction was first established elsewhere under the LRA . In
this regard, the Court said: 33 ‘Section 158(1)(a) is clearly an example of the
powers the Labour Court may exercise in respect of a matter falling within its
jurisdiction, and it does not purport to grant the Labour Court jurisdiction, in
the sense of the power to hear and determine the matter in the first place. On
the other hand, s 158(1)(i) clearly bestows on the Labour Court jurisdiction in
the latter sense’ . The Court also referred to section 158(1)(h) as being a
the latter sense’ . The Court also referred to section 158(1)(h) as being a
source of conferring jurisdiction and then empowering the Labour Court to
hear and determine applications to review any decisions taken or acts
performed by the State in its capacity as employer.
34
31 Id at para 30.
32 Id at para 31.
33 Id at para 33.
34 Id at para 34.
14
[25] So, a proper conspectus of section 158(1) is necessary. This is because, as
held in Public Servants Association on behalf of Members v Minister of Health
and Others35:
‘… the distinction between jurisdiction and powers as they are drawn by ss
157 and 158 is not necessarily cast in Manichean terms. It remains for the
court to determine whether the statutory provision on which an applicant relies
to found jurisdiction is indeed one that confers jurisdiction (as the LAC
decided in Merafong in relation to s 158(1) (h) and applications to judicially
review decisions taken or acts performed by the state in its capacity as
employer), or whether it is no more than the expression of a power that may
be exercised once jurisdiction has been established. …’
[26] It follows that each individual provision in section 158(1) must be carefully
scrutinised in order to ascertain whether the provision confers jurisdiction on
the Labour Court in addition to providing it with the power, or is only a
provision providing the Labour Court with powers to exercise once it has
jurisdiction established by other means in the first place. In this regard, the
Court in Merafong supra has clearly said that the powers in terms of section
158(1)(a) do not serve to confer jurisdiction , and can only be exercised if
jurisdiction exists in the first place. Using a simple example relevant to the
case in casu , the Labour Court has the power to grant an interdict under
section 158(1)(a)(ii), but can only exercise this power if it already has
jurisdiction to entertain the dispute. In Public Servants Association supra, the
Court held that section 158(1)(b): ‘… cannot be interpreted to mean that in the
absence of any provision in the LRA or any other law conferring jurisdiction on
this court to so order, the court may nonetheless compel compliance with any
provision of the LRA or any other employment law …’.
36 In my view, the same
would apply to sections 158(1)(c) and 158(1)(f), as the Court can only make
would apply to sections 158(1)(c) and 158(1)(f), as the Court can only make
an arbitration award or settlement agreement an order of Court , or grant
condonation for late filing of documents, if the Court has jurisdiction in respect
35 (2019) 40 ILJ 193 (LC) at para 13.
36 Id at para 19.
15
of the dispute forming the subject matter of these instruments in the f irst
place.
[27] On the other hand, it seems to me that the wording in section 158(1) that
involves the descriptive phrases of ‘review’ and ‘determine’ contemplate a
power that also confers jurisdiction. In this respect, the Court in Merafong
supra has said that section 158(1)(h) does confer jurisdiction on the Labour
Court as it has been given the power to ‘ review’ conduct of the State in its
capacity as employer on grounds permitted in law. 37 Section 158(1)(e) is
another example, as it affords the Labour Court the power to ‘ determine’ a
dispute between a trade union / employers organization and it members
pertaining to non-compliance with such body’s constitution, and this also
confers jurisdiction on the Court to do so .38 The same would also apply to
section 158(1)(g) which affords the Labour Court power to ‘ review’ the
performance or purported performance of any function provided for in the
LRA. And lastly, section 158(1)(i) also confers jurisdiction, as it affords the
Labour Court the power to determine an appeal provided for under that
section.
[28] There is an important reason for my exposition of the legal position where it
comes to jurisdiction, as set out above. This is because the applicant has not
specified or pleaded, as it was actually required to do, on what source of
jurisdiction it relied for this Court to grant it the relief sought. However, and
adopting a gener ous approach, I will apply the facts as pleaded in the
founding affidavit in order to determine if this C ourt has any jurisdiction based
on any of the aforesaid empowering provisions. The case pleaded in the
founding affidavit, as touched on above, is that the respondent s are operating
a branch of the applicant in breach of the constitution of the applicant, and this
37 In Booysen (supra) at para 10, the Court held: ‘… The only way the Labour Court is able to review
is by hearing and determining an application for review of the acts and/or decisions contemplated in s
158(1)(h). That section should be read as not only conferring a power, but also jurisdiction upon the
Labour Court …’.
38 See SA Transport and Allied Workers Union v Zondo and Others (2015) 36 ILJ 2348 (LC) at para 6;
Pule on Behalf of Public Servants Association of SA, Department of Home Affairs Branch and Others
v Public Servants Association of SA and Others (2020) 41 ILJ 488 (LC) at para 3.
16
case is brought by the applicant against the respondents not as members of
the trade union, but as officials of the trade union.
[29] First and foremost, the applicant cannot rely on a general jurisdiction of this
Court on the basis that trade unions are regulated under and provided for in
the LRA, which in my view would be exactly the same situation as this Court
not having a general jurisdiction just because a matter concerns an
employment dispute. There is no provision in the LRA which specifically
provides that the Labour Court has jurisdiction to decide the kind of dispute as
pleaded by the applicant in the founding affidavit. That puts paid to section
157(1) as a possible basis for conferring jurisdiction. This case does not
concern the violation of a fundamental right , hence section 157(2) cannot
apply. This is not a case where the applicant seeks to review any decision of
the State as employer , or any function performed under the LRA. And it
certainly is not an appeal as envisaged by section 158(1)(i). This only leaves
section 158(1)(e) as a possible source of jurisdiction. The section reads:
‘(1) The Labour Court may – …
(e) determine a dispute between a registered trade union or registered
employers’ organisation and any one of the members or applicants for
membership thereof, about any alleged non-compliance with –
(i) the constitution of that trade union or employers’ organisation (as the case
may be); or
(ii) section 26(5)(b).’
[30] When one considers the founding affidavit of the applicant, this is certainly a
dispute concerning the non- compliance with the applicant’s constitution, as
provided for in section 158(1)(e)(i) . But the important question in casu is
whether is it is also a dispute between the applicant as trade union and any of
its members. 39 It is in this latter regard where the applicant faces an
39 See Chemical Energy Paper Printing Wood and Allied Workers Union and Another v Zako and
39 See Chemical Energy Paper Printing Wood and Allied Workers Union and Another v Zako and
Another (2025) 46 ILJ 305 (LAC) at para 9, where the Court said: ‘ A proper analysis of the notice of
motion and founding affidavit discloses that the substance of the claim that served before the Labour
Court was an alleged failure by the second appellant to comply with the union’s constitution. This, of
course, is a matter regulated by s 158(1)(e) of the LRA, where the Labour Court is empowered to
determine a dispute between a union and one or more members regarding any alleged non -
compliance with the union’s constitution …’
17
insurmountable obstacle. It is clear that section 158(1)(e) is limited in its
application to disputes between the trade union and its members. This means
that a case must be made out that one of the litigating parties is a person that
qualifies as a member under the constitution of the trade union, has been
admitted to the trade union as a member , and that such membership is
extant.40 And lastly, what is also required is that there must be a dispute
between such member, in the capacity as member, and the trade union itself,
inter se, concerning any of the two issues specified in that section. As held in
National Entitled Workers Union v Sithole and Others41:
‘… The wording of s 158(1) (e) clearly envisages a conflict between, for
example, a registered trade union and its members about any aspect of non-
compliance with the union's constitution. …’
[31] On the facts, the applicant is represented in the litigation by Tshabalala as its
general secretary, which in terms of the applicant’s constitution is an official of
the applicant. The two respondents are also both employees of the applicant,
employed in terms of written contracts of employment signed on 1 March
2023. In terms of these contracts of employment, they fulfil the function of
officials. There is no evidence or allegation that they are members of the
applicant. In any event, the case is not brought against the respondent s on
the basis that they are members of the trade union (applicant). Similarly, the
opposition by the respondents to the case is not in the capacity of being
members of the applicant. In a nutshell, this is a dispute between individual
officials of the trade union about the interpretation and / or breach of the
constitution of the trade union. This takes section 158(1)(e) off the table. As
was made clear in Elias and Others v Morifi and Others
42, where the Court,
40 As held in SA Broadcasting Corporation v Commission for Conciliation, Mediation and Arbitration
and Others (2002) 23 ILJ 1549 (LAC) at para 10, with regard to an expelled member : ‘… His status
therefore was then, and still is, one of being a non- member, albeit open to challenge and reversal.
The national office was entitled to adopt the standpoint that Papane was not a member, unless and
until the expulsion was reversed …’.
41 (2004) 25 ILJ 2201 (LAC) at para 10. See also Zondo and Others v SA Transport & Allied Workers
Union (2015) 36 ILJ 2916 (LC) at para 18; Tonyela and Others v National Union of Metalworkers of
SA
(2022) 43 ILJ 1895 (LC) at para 1.
42 (2022) 43 ILJ 382 (LC) at para 16.
18
after finding that there is no dispute between the union and its members, but
rather a dispute between the office-bearers of the trade union inter se, held:
‘… the applicants have no dispute with the seventh respondent qua trade
union. The dispute is one between factions within the union, and not one
between any one or more members of the union and the union itself. It follows
that the dispute before the court is not one that falls within the jurisdictional
footprint established by s 158 of the LRA, and that the application stands to
be dismissed on that basis. …’
The Court in Pule on Behalf of Public Servants Association of SA, Department
of Home Affairs Branch and Others v Public Servants Association of SA and
Others43 similarly reasoned, coming to the following conclusion:
‘The capacity in which the applicant branches’ representatives have filed
these proceedings could not be more clearly stated. In their individual
capacities, they are union members, but they do not approach the court in that
capacity. On the contrary, they disavow that status and act in a representative
capacity, on behalf of the three branches that are respectively applicants in
these proceedings. It follows that in the absence of any claim by one or
more members of the PSA (as opposed to one or more of its branches)
concerning non-compliance with the PSA’s constitution, the claim is not one
that falls within the ambit of s 158(1) (e). This court thus has no jurisdiction to
entertain the application.
’
[32] The situation is made worse by the fact that the applicant seeks to treat the
North West branch of the trade union as some sort of separate legal entity,
which must be closed and interdicted. This approach is erroneous. The North
West branch is part of the applicant, and has no independent existence as a
persona distinct from the applicant. In simple terms, it is simply an office of the
same trade union at another geographical location. This is also evident from
same trade union at another geographical location. This is also evident from
the fact that the respondents are employed by the applicant itself as officials
stationed at the branch. In Pule supra, the Court has the following to say:
44
43 (2020) 41 ILJ 488 (LC) at para 5.
44 Id at para 11.
19
‘In summary: the PSA is a legal entity which is capable of suing and being
sued. The branches of the PSA are not in and of themselves self-standing
and discrete legal entities and they have no locus standi before the court. Of
course, there is nothing to prevent any one or more members of the PSA from
approaching this court in their personal capacities under s 158(1) (e) to pursue
any grievance related to any alleged non- compliance with the PSA’s
constitution. But that is not the basis on which the present application has
been brought.’
[33] From the documentary evidence, it appears that the NEC of the applicant
adopted a resolution on 20 September 2025 to close the branch. Even if that
is so, it still leaves the respondents employed as officials. And in such
capacity, in terms of their contracts of employment, they are not only entitled,
but in fact obliged to continue to fulfil the tasks of conducting trade union
affairs in the name of the applicant, such as recruiting and representing
members. That will continue to be the case until their employment is
terminated. If they operate some or other clandestine or unauthorised ban k
account, that is a disciplinary matter to be deal with by the applicant internally ,
as a disciplinary infraction. I believe that what the applicant , under the
direction of Tshabalala, is in effect attempting to do is to separate itself from
the respondents in an improper manner, by relying on this Court to give effect
to this stratagem, which is an issue that should not concern this Court at all. In
City of Johannesburg v SA Municipal Workers Union and Others
45 the Court
held:
‘… I am similarly convinced that it was not appreciated, when s 158(1) (e) was
enacted, to what extent this court would be called upon to manage internal
trade union strife. I have no hesitation in saying that it should not be the
function of this court to manage the affairs of trade unions, and even though
function of this court to manage the affairs of trade unions, and even though
the Labour Court is competent to do so, the current escalation of the practice
of managing internal trade union strife through this court must be
discouraged. …’
45 (2017) 38 ILJ 1342 (LC) at para 4.
20
[34] A comparable view was adopted in General Industries Workers Union of SA v
Maseko and Others46, however with specific reference to a dispute between a
union and its employees with regard to compliance with the trade union
constitution. This would also apply in casu, as the respondents are currently
employees of the trade union, employed as officials, and it is relating to these
functions being fulfilled by them that the applicant (Tshabalala) has an issue.
The Court Maseko said:47
‘A slightly anomalous issue is that because the Labour Court is confined to
determining a dispute between a union and its members, over alleged non-
compliance with the union's constitution the court cannot intervene in a
dispute over non-compliance with the union constitution solely between the
union and an employee of the union under this provision …’
[35] In summary, the applicant has therefore failed to satisfy me that the Labour
Court has jurisdiction to entertain its application for the relief sought. This is in
reality an internal dispute between officials of the applicant as trade union,
that must be resolved internally and does not engage the jurisdiction of this
Court. Importantly, it is not a dispute between the applicant as trade union and
any of its members, qua members , which is essential to engage the
jurisdiction of this Court . It can even be said to be dispute between the
applicant as trade union and its employees, which must equally be resolved in
terms of the ordinary dispute resolution mechanisms provided for in the LRA .
In all this context, w hether or not the constitution of the applicant has been
breached would be a subject matter for consideration when deciding, for
example, if the ultimate dismissal of the respondents by the applicant for
conduct in breach of the trade union constitution would be fair. But even that
would be an arbitrable dispute, and would not engage the jurisdiction of this
would be an arbitrable dispute, and would not engage the jurisdiction of this
Court as a Court of first instance. The application must therefore fail for want
of jurisdiction of this Court to entertain the same, and must be dismissed.
Costs
46 (2015) 36 ILJ 2874 (LC).
47 Id at para 19.
21
[36] This then only leaves the issue of costs. In this respect, and in terms of
section 162(1) of the LRA , I have a wide discretion. Both parties were not
legally represented. They still have an ongoing relationship with one another,
despite this relationship obviously being quite strained. A costs order will only
serve to further strain this rocky relationship, as is apparent from the events
pertaining to the wasted costs I granted on 9 October 2025 against the
respondents because of their failure to provide a proper answer and seeking
the indulgence of a postponement . In any event, any costs that are
recoverable relate only to disbursements. Overall considered, and although
the applicant was not successful, I believe no order as to costs is appropriate
and fair.
[37] I accordingly make the following order:
Order
1. The applicant’s application is dismissed.
2. There is no order as to costs.
_____________________
S. Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr P Tshabalala of VOOLA (Trade Union)
For the Respondents: In person