THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
Case No: JR668/22
In the matter between:
INNOVATIVE STAFFING SOLUTIONS (PTY) LTD Applicant
and
MINISTER OF EMPLOYMENT AND LABOUR First Respondent
NATIONAL BARGAINING COUNCIL FOR Second Respondent
THE ROAD FREIGHT AND LOGISTICS INDUSTRY
ROAD FREIGHT ASSOCIATION Third Respondent
NATIONAL EMPLOYERS’ ASSOCIATION OF SA Fourth Respondent
CONSOLIDATED EMPLOYERS ORGANISATION Fifth Respondent
SOUTH AFRICAN TRANSPORT Sixth Respondent
AND ALLIED WORKERS UNION
MOTOR TRANSPORT WORKERS Seventh Respondent
UNION OF SOUTH AFRICA
PROFESSIONAL TRANSPORT & ALLIED Eighth Respondent
WORKERS UNION
TRANSPORT AND ALLIED WORKERS UNION Ninth Respondent
Heard: 20 March 2025
Delivered: 4 December 2025
2
Summary: Application to review and set aside the decision of the Minister to
extend the period of operation of the Main Collective Agreement
of the Bargaining Council. Application dismissed, no costs.
JUDGMENT
DANIELS J
Introduction
[1] This judgment relates to an application brought to review and set aside
the decision of the first respondent (“the Minister”) to extend the period
of the Main Collective Agreement (“the MCA”) of the second respondent
(“the Bargaining Council”) as published in GG 45897 GN 813 of 10
February 2022 and in GG 45905 GN 831 of 11 February 2022. The
applicant seeks a declaration that such extensions are invalid.
[2] This application was heard together with two applications, under case
numbers JR1518/23 and JR2749/22. For simplicity, separate judgments
are handed down in respect of each application.
[3] The judgment in respect of the matter under case number JR2749/22
was handed down on 3 April 2025. The court dismissed the application,
brought by the same applicant to review and set aside the
determination of representativeness, issued by the deputy registrar in
terms of section 49(2) of the Labour Relations Act No. 66 of 1995 (“the
LRA”) on 9 December 2021. It goes without saying that the findings of
both fact and law, made in the application under JR2749/22, are also
applicable in this matter.
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Extensions of the Main Collective Agreement
[4] The Minister:
4.1 Through GG 45897 GN 813, published on 10 February 2022,
extended the period of operation of the Main Collective Agreement
in terms of section 32(6)(a)(i) of the LRA from 28 February 2022 to
29 February 2024.
4.2 Through GG 45905 GN 831, published on 11 February 2022, the
Minister extended the period of operation of the Main Collective
Agreement in terms of section 32(6)(a)(i) of the LRA from 28
February 2022 to 29 February 2024.
[5] Strangely, both notices were signed by the Minister on 7 February 2022
and are indistinguishable apart from the date on which they were
published.
[6] By the time this application was argued, on 20 March 2025, the period
of the extensions had long passed. It is therefore necessary to consider
whether the application is moot.
Mootness
[7] It is said that a case is moot, and not justiciable, when it “ no longer
presents an existing or live controversy which should exist if the court is
to avoid giving advisory opinions on abstract propositions of law .”
1 The
issue is whether the decisions will have no practical effect or result.2
1 National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and
others [2000] JOL 5877 (CC)
2 Agribee Beef Fund (Pty) Ltd and another v Eastern Cape Rural Development Agency and
another [2023] JOL 57428 (CC)
4
[8] However, mootness is not finally determinative of whether the court
should hear the matter. The court retains a discretion to do so, and
must be guided by the interests of justice. 3 Factors relevant include the
nature and extent of the practical effect that any possible court order
might have either on the parties or on others, the importance of the
issue, the complexity of the issue, the fullness or otherwise of the
argument advanced, and the need to resolve disputes between different
courts. In my view, this judgment may impact on the conduct of the
parties to the Bargaining Council, the conduct of the Minister, and the
conduct of the registrar or deputy registrar, in similar disputes.
[9] I do not believe that the dispute is moot. However, even if this is
incorrect, the interests of justice demand that the application be
decided. The dispute raises issues of importance to the parties , as well
as the labour fraternity more generally. The extension of the collective
agreements of Bargaining Councils is essential to one of the primary
objects of the LRA - namely the promotion of collective bargaining at
sectoral level.
Factual matrix
[10] The factual background to the dispute is as follows:
10.1 The Bargaining Council referred a demarcation dispute to the
CCMA on 30 October 2018 requesting an award that the applicant
fell within its registered scope. On 2 March 2021, the CCMA
commissioner found that the applicant was a temporary
employment service and part of its operations fell within the scope
of the Bargaining Council. As a result, the applicant was required to
register with the Bargaining Council and comply with collective
3 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para
11; MEC for Education, Kwa-Zulu Natal and Others v Pillay 2008 (1) SA 474 (CC) at para 32
5
agreements of the Council which had been or would be extended to
non-parties. The applicant launched an application to review and
set aside the demarcation award under case number JR510/2021.
10.2 The applicant launched a further application, under case number
JR482/21, to stay the demarcation award pending the review. A
court order was granted by agreement (on 11 May 2021) between
the parties in terms of which the demarcation award would be
stayed, pending the determination of the review application under
JR510/2021, but the applicant would comply with certain provisions
of the MCA and submit returns to the Council demonstrat ing
compliance.
10.3 The applicant launched a further application, under case number
J1428/2021 seeking an order inter alia declaring that it had
complied with the court order of 11 May 2021.
10.4 The applicant launched a further application, under case number
J1380/2021, seeking a court order inter alia interdicting the Council
from representing to any of the applicant’s clients that it was acting
in breach of the 11 May 2021 court order and that a writ of arrest
had been issued for the director of the applicant regarding his
alleged refusal to register the applicant with the Bargaining Council.
The Council opposed the application and brought a counter
application seeking a court order inter alia interdicting the applicant
from holding out to any employers in the road freight industry that it
is entitled not to comply with the MCA and that if they engage the
services of the applicant their employees would not longer be
subject to the MCA. The application came before my sister, Mahosi
J, on 16 November 2021 who delivered her judgment a short while
later.
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10.5 The court dismissed the application and pending the final
determination of the application under JR510/21, granted the relief
sought by the Bargaining Council. In effect, the applicant was
ordered to comply with the MCA, and to refrain from advising
employers in the road freight industry that the applicant was entitled
not to comply with the MCA.
10.6 The applicant’s application for leave to appeal against the judgment
of Mahosi J was dismissed, and its petition to the Labour Appeal
Court was also dismissed. Its subsequent application for leave to
appeal to the Constitutional Court was also dismissed.
10.7 Several years earlier, the Minister had issued a letter to Ms
Ngwetjana appointing her as the deputy registrar and requested her
“to perform all functions assigned to this position in the absence of
the Registrar of Labour Relations .”
4 In these proceedings, we are
concerned with the conduct of the deputy registrar and the
determinations made by her. Accordingly, in what follows, any
reference to registrar includes the deputy registrar.
10.8 On 9 December 2021, the deputy registrar signed a certificate, in
terms of section 49(2) of the LRA, which reads:
4 Section 108(2) of the LRA states: (a) The minister may designate any number of officials in
the Department as deputy registrars of labour relations to assist the registrar to perform the
function of the registrar in terms of this Act. (b) A deputy registrar may exercise any of the
functions of the registrar that have been generally or specifically delegated to the deputy.
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10.9 It bears noting that the certificate relates to the representativeness
of the parties, to the Bargaining Council, in relation to the scope of
the MCA. The certificate does not refer to the registered scope of
the Bargaining Council though, of course, the scope of the MCA
and the registered scope of the Council frequently coincide.
DEPARTMENT OF LABOUR
CERTIFICATE OF REPRESENTATIVENESS
OF PARTIES TO A COLLECTIVE AGREEMENT
National Bargaining Council for the Road Freight
and Logistics Industry
In terms of section 49(2) of the Labour Relations Act, 1995, I am
satisfied that the parties to your Council’s Main Agreement are
representative and will be regarded as such until 31 December 2023
1. On 7 December 2021 there were 108 673 employees
employed within the scope of the Collective Agreement.
2. On 7 December 2021 there were 26 827 members of the
trade unions to the Council that were employed within the
scope of the Collective Agreement.
3. On 7 December 2021 there were 60 555 employees
employed within the scope of the Agreement by members
of the employers’ organisations, party to the Collective
Agreement.
Date: 9 December 2021
Reference number: 2/6/6/55
Deputy Registrar of Labour Relations
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Grounds for review
[11] This application is brought on the grounds set out under the Promotion
of Administrative Justice Act, 2000 (hereafter “PAJA”) alternatively the
principle of legality. The principle of legality extends to the exercise of
all public power. Though more limited than the grounds of review in
PAJA
5 the principle of legality permits review of public power on the
grounds of irrationality and on the basis that the decision- maker did not
act in accordance with the empowering statute. 6 Rationality requires
that the exercise of public power must not be arbitrary. Such decisions
must be rationally related to the purpose for which the power was given
and calls for an objective enquiry.
7
The first ground
[12] The applicant contends that , properly constructed, section 32(8) of the
LRA requires that the notice and comment procedure contemplated by
section 32(5) is applicable whenever the extended collective agreement
is either amended, amplified or replaced. The Minister’s decision to
5 Section 6(1) of PAJA permits the review of administrative action if the administrator: (a)
(i) was not authorised to do so by the empowering provision; (ii) acted under a delegation of
power which was not authorised by the empowering provision; or (iii) was biased or
reasonably suspected of bias; (b) a mandatory and material procedure or condition prescribed
by an empowering provision was not complied with; (c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law; ( e) the action was taken - (i) for a
reason not authorised by the empowering provision; (ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or relevant considerations
were not considered; (iv) because of the unauthorised or unwarranted dictates of another
person or body; (v) in bad faith; or (vi) arbitrarily or capriciously; (f) the action itself - (i)
contravenes a law or is not authorised by the empowering provision; or (ii) is not rationally
connected to - (aa) the purpose for which it was taken; (bb) the purpose of the empowering
provision; (cc) the information before the administrator; or (dd) the reasons given for it by the
administrator; (g) the action concerned consists of a failure to take a decision; (h) the exercise
of the power or the performance of the function authorised by the empowering provision, in
pursuance of which the administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power or performed the function; or (i) the
action is otherwise unconstitutional or unlawful.
6 Democratic Alliance and Others v Acting National Director of Public Prosecutions and
Others 2012 (3) SA 486 (SCA) paras 28 – 30
7 Pharmaceutical Manufacturers Association of SA and Another: In Re Ex Parte President of
the Republic of South Africa and others 2000 (2) SA 674 (CC) at paras 85 and 86
9
extend was not preceded by a notice and comment procedure, as
contemplated, and is therefore invalid.
The second ground
[13] The applicant contends that the registrar made no determination on 9
December 2021, and the certificate is not a determination.
The third ground
[14] The applicant contends that the registrar was required to sign the
certificate, but it was instead signed by the deputy registrar.
The fourth ground
[15] The applicant contends that the Mi nister was required to interrogate the
figures in the registrar’s determination, if such a determination was
indeed made. The Minister could not simply accept the figures in the
certificate when this differed from the request for extension made by the
Bargaining Council.
Analysis of the grounds of review
The first ground
[16] In this matter, the Minister exercised her power to extend under section
32(2) of the LRA.
[17] In the judgment under case number JR2749, the court rejected the
argument that representations , or consultation, as envisaged by
sections 3 and 4 of PAJA are also applicable to the determinations of
representativeness made by the Registrar . The sentiments in that
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judgment are equally applicable to the Minister when he or she
exercises the powers contemplated under section 32(2).
[18] The accepted method of statutory interpretation has been well captured
as the “interpretative triad of language, context and purpose”.
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[19] In my view, there is nothing in the language, context or purpose of
section 32 which suggests that the procedures in sections 3 and 4 of
PAJA are also applicable when the Minister exercises his or her powers
under section 32(2).
[20] The applicant’s argument appears to be anchored in its view that the
words “amended, amplified or replaced” in section 32(8) also includes
any extension of the period of the agreement. With respect, one merely
needs to consider the text of the subsection to see that this is incorrect.
Section 32(8) states:
“Whenever any collective agreement in respect of which a notice has
been published in terms of subsection (2) or (6) is amended, amplified
or replaced by a new collective agreement, the provisions of this
section apply to that new collective agreement.” (own emphasis)
[21] First, it is plain from the text that the words “amended, amplified or
replaced” means something other than extended. Second, the
applicant’s submission ignores the insertion of the word “new”. The
extension of the same collective agreement cannot bring into existence
a new collective agreement. The provisions of the collective agreement
are clearly not “amended, amplified or replaced”.
8 Shoprite Checkers (Pty) Ltd v Mafate NO (2024) 45 ILJ 2491 (CC) at para [33]
11
[22] To ensure that the process of sectoral collective bargaining is protected
from those employers who might wish to derail it, the LRA does not
require any comment or consultation process to be followed by the
Minister in terms of section 32(2). To read in such requirement would be
to breach the principle of separation of powers. I note that the applicant
refrained from any challenge to the constitutionality of the relevant
provisions in the LRA. I note also that the applicant made no
submissions in relation to section 210 of the LRA which provides , in
brief, that where there is a conflict between the LRA, and the provisions
of any other law (save for the Constitution) the LRA must prevail.
The second, third and fourth grounds
[23] The applicant contends that the registrar made no determination on 9
December 2021, and the certificate is not a determination. These
contentions were addressed at length, and rejected, in the judgment
under case number JR2749/22.
Costs
[24] It is trite that costs in labour matters do not follow the result.
Furthermore, the submissions were novel. No costs order is made.
Conclusion
[25] In the circumstances, for the reasons set out above, I make the
following order:
25.1 The review application is dismissed,
25.2 There is no order as to costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant:
Adv Boda SC with Adv Itzkin and Adv Karim
Instructed by Hanelle Vrey Inc
For the First Respondent:
Adv L Kutumela
Instructed by State Attorney
For the Second Respondent:
Adv H Barnes SC
Tricker Inc