THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR1518/23
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: 8 December 2025
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Summary: Application to review and set aside decision of Minister to extend
the period of operation of the Main Collective Agreement of the
Bargaining Council, and its extension to non- parties. 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 both extend the
period of the Main Collective Agreement (“the MCA”) of the second
respondent (“the Bargaining Council”) and to extend the MCA to non-
parties, published in GG 492029 GN 3727 on or about 28 July 2023.
The applicant seeks a declaration that such extensions are invalid.
[2] This application was heard together with two applications, under case
numbers JR668/22 and JR2749/22. For simplicity, separate judgment s
are handed down.
[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
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. The findings of
both fact and law, made in the application under JR2749/22, are also
applicable to this matter. The judgment JR2749/22 was handed down
on 3 April 2025.
3
[4] The judgment in respect of case number JR668/22 was handed down
on 4 December 2025. The court dismissed the application to review and
set aside the Minister’s extension of the period of operation of the Main
Collective Agreement from 1 March 2022 to 29 February 2024. Once
again, the findings of both fact and law, made in the application under
JR668/22, are also applicable to this matter.
Mootness
[5] As previously mentioned, this application seeks to set aside the
Minister’s decisions: (i ) to extend the period of the MCA from 1 March
2024 to 28 February 2025, and (ii) furthermore to extend such MCA to
non-parties. By the time the consolidated application was argued, on 20
March 2025, the period of the extension had passed. It is therefore
necessary to first consider whether the application is moot.
[6] A case is moot, and therefore not justiciable, if 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
[7] M ootness is not decisive of whether the court ought to hear the
application. The court retains a discretion, and it must be guided by the
interests of justice.3 Factors relevant to the discretion 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
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)
another [2023] JOL 57428 (CC)
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
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Bargaining Council, the conduct of the Minister, and the conduct of the
registrar or deputy registrar, in similar disputes.
[8] 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
[9] The factual background to the dispute is as follows:
9.1 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
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.
9.2 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
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of the MCA and submit returns to the Council demonstrat ing
compliance.
9.3 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.
9.4 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 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. The applicant’s application
for leave to appeal was dismissed, and its petition to the Labour
Appeal Court was also dismissed.
9.5 E arlier the Minister 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
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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 r egistrar includes the
deputy registrar. On 9 December 2021, the deputy registrar signed
a certificate, in terms of section 49(2) of the LRA, which reads:
9.6 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
4 Section 108(2) of the LRA states: (a) The minister may designate any number of offic ials 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.
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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the Bargaining Council though, of course, the scope of the MCA
and the registered scope of the Council frequently coincide.
Legal basis for review
[10] This application is brought under section 158(1)(g) of the LRA read with
section 6 of 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.
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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
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
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Grounds for review
The first ground
[11] The applicant contends that , properly interpreted, section 32(8) of the
LRA requires that the notice and comment procedures contemplated by
section 32(5) of the LRA would be applicable whenever a collective
agreement of a Bargaining Council is “amended, amplified or replaced”.
The applicant contends that, when the period of the MCA is extended,
or the MCA is extended to non- parties, this constitutes an amendment,
amplification or replacement of the MCA . This court considered and
dismissed such submissions in its judgment under JR2749/22. The
submissions are again rejected, for the same reasons.
[12] The applicant also contends that section 32 requires that the fair
procedures contemplated by section 4 of PAJA are applicable when the
Minister extends collective agreements. This court considered and
rejected those contentions in its judgment under JR2749/22. The
contentions are again rejected, for the same reasons.
The second ground
[13] The applicant contends that the registrar or deputy registrar made no
determination of representativeness as contemplated by section 49 of
the LRA. This proved to be factually incorrect. The Minister attached, to
its answering affidavit, a delegation duly authorising the deputy registrar
to perform the functions and duties of the r egistrar. Accordingly, this
ground of review has no merit.
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The third ground
[14] The applicant contends that the Minister was required to interrogate the
figures in the determination of the registrar or deputy registrar. It
contends that the Minister cannot simply accept the figures in the
certificate any decision to do so is irrational. This court considered and
rejected such submissions in the judgment under JR2749/22. The
submissions are again rejected, for the same reasons.
Costs
[15] It is trite that costs in labour matters do not follow the result.
Furthermore, the submissions were novel. No costs order is made.
Conclusion
[16] In the circumstances, for the reasons set out above, I make the
following order:
16.1 The review application is dismissed,
16.2 There is no order as to costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
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
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For the Second Respondent:
Adv H Barnes SC
Tricker Inc
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