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[2026] ZALCCT 4
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Commuter Contract Employers Association v Registrar of Labour Relations (C644/2023) [2026] ZALCCT 4 (19 January 2026)

THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Case
No:
C644/2023
(1)
Reportable:
Yes
(2)
Of interest to other Judges: Yes
19/01/2026
In
the matter between:
COMMUTER
CONTRACT EMPLOYERS’
ASSOCIATION
Appellant
and
REGISTRAR
OF LABOUR RELATIONS
Respondent
Heard
:
21 January 2025
Delivered
:
19 January 2026
Summary
(Appeal against Registrar’s
refusal to register and employer organisation – Jurisprudence
considered – Registrar
ignoring crucial factors and collapsing
issues of compliance with section 95(5) of the LRA, with the separate
test to determine
if the association is a genuine employers’
organisation or trade union – appeal upheld)
JUDGMENT
LAGRANGE, J
Introduction
[1]
This is an appeal under s 111(3) of the Labour Relations Act, 66 of
1995 (‘the LRA’) against a decision by
the Registrar of
Labour Relations (‘the registrar’) on 9 October 2023 to
refuse to register an employer’s organisation
(‘COMCONEA’).
This was COMCONEA’s second application for registration.
[2]
In 2022, the Registrar had rejected the organisation’s first
registration application on the basis that it was not
a genuine
employer’s organisation.
[3]
In the
course of drafting the judgment, the court’s attention was
drawn to the fact that the Labour Appeal Court  judgment
in
Registrar
of Labour Relations v Simunye Workers Forum
[1]
had been handed down. At the time this appeal was argued, only the
Labour Court decision had been published, and neither the court
nor
any of the parties were aware of the LAC decision. Accordingly, the
parties were given an opportunity to file supplementary
submissions
in relation to anything arising from the LAC decision.  Only
COMCONEO made further submissions.
Background
Genesis of COMCONEA’s
registration application.
[4]
The application to register COMCONEA arose from very specific and
some what unique circumstances, namely the conclusion
of a settlement
agreement between Golden Arrow Bus Services (Pty) Ltd (‘GABS’)
and the union NUMSA on 10 February 2022.
[5]
The settlement agreement concluded a dispute over whether a strike
NUMSA had called was  protected or not and consequently
whether
GABS was entitled to interdict it.  In March 2020, GABS had
resigned its membership of the Commuter Bus Employers
Organisation
(‘COBEO’) that was a party to the South African Road
Passenger Bargaining Council (‘SARBAC’).
Two of the
other founder members of COMCONEA, Table Bay Rapid Transit (Pty) Ltd
and Sibanye Bus Services (Pty) Ltd were either
members of COBEO or
the South African Bus Employers’ Association (‘SABEA’)
and they also resigned from those
associations when GABS left COBEO.
[6]
COMCONEA explained that the interests of GABS and its affiliated
companies were at odds with those of the other employer
members of
COBEO and SABEA, who insisted that wage increases should be
determined as a percentage of existing wages. According
to COMCONEA,
those companies all paid the minimum wage is determined at SARBAC. By
contrast, the members of COMCONEA had historically
paid wages in
excess of the minimum bargaining council rates and, in consequence,
when a percentage increase was awarded the absolute
increase that
they were liable for was always greater than the increases paid by
their competitors. As a result, they could never
reduce the premium
wages they paid. As long as they remained members of the other two
employer organisations, which favoured percentage
increases, their
divergent interest could not be advanced in collective bargaining in
the council.
[7]
As a result of resigning their membership of the other employer
organisations GABS and its affiliated companies were not
even
nominally represented in collective bargaining at SARBAC by virtue of
belonging to an employer organisation which was party
to the
bargaining council.  NUMSA, a union which has substantial number
of members employed by COMCONEA’s members, was
unhappy with
GABS exit from COBEO and demanded that GABS rejoin COBEO. In May
2021, NUMSA referred a dispute to conciliation, claiming
it was a
dispute over a refusal to bargain. When the dispute was not settled
at conciliation, NUMSA issued a strike notice.
Initially, this
court interdicted the strike on an interim basis, having taken the
view, it was unprotected. On the return day,
the rule was discharged
because the judge on that occasion took the view it was protected.
GABS took that judgment on appeal, but
before the matter was heard,
the parties concluded the settlement agreement mentioned.
[8]
The pertinent part of the settlement agreement is that GABS undertook
to ‘cause’ the formation of a new employer’s

organisation and to apply for its registration, within four months of
the conclusion of the settlement agreement. It also agreed
to cause
the newly registered association to apply for admission as an
employer party to SARBAC within a month of being registered.
[9]
GABS, which employs about 2410 employees, then initiated the
formation of COMCONEA by agreement with the other three businesses.

TBART and Sibanye are both subsidiaries of GABS, employing 234 and 69
employees respectively.  The N2 Express Joint Venture
employs 80
employees and GABS holds a minority stake in that entity.
The Statutory Framework
and s95(8) Guidelines
[10]
The application was made under Section 96(1) of the LRA. The
following provisions were central to the Registrar refusing
to
register the association.
[11]
Section 95(3) reads:
‘
(3)
Any
employers' organisation
may
apply to the
registrar
for
registration if-
(a)
it
has adopted a name that meets the requirements of subsection (4);
(b)
it
has adopted a constitution that meets the requirements of subsections
(5) and (6), and
(c)
it
has an address in the
Republic
.’
[12]
Section 95(7) states:
‘
(7) The registrar
must not register a trade union or an employers' organisation unless
the registrar is satisfied that the applicant
is a genuine trade
union or a genuine employers' organisation.’
(emphasis added)
[13]
Section 95(8) reads:
‘
The Minister,
after consultation with NEDLAC, may by notice in the Government
Gazette publish guidelines
to be applied by the registrar in
determining whether an applicant is
a genuine trade union
or a
genuine employers' organisation
and guidelines for the system of
voting as contemplated in subsection (9).’
(emphasis added)
[14]
In
accordance with S 95(8), guidelines were published in 2018
[2]
.
Paragraph 3 of the guidelines state:
‘
3. In order to
determine whether an organisation is genuine, it will be necessary
for the Registrar to examine
the actual operation of the
organisation
. In the case of
an applicant
, particular
attention will have to be paid to
the manner in which the
organisation was established and formed
. In the case of an
existing organisation
, attention will have to be paid to
its
actual activities and functioning
. In evaluating whether a trade
union or employer's organisation is genuine, the Registrar
must
take into account all relevant factors.
’
[15]
In the guidelines, the definition of an employer’s organisation
is set out in paragraph 23, and in paragraph 24,
the guidelines
state:
‘
24. Therefore, an
organisation cannot be registered as an employers’ organisation
or continue to operate as a registered employers’
organisation
unless-
[a] the employers who are
members of the organisation
have in fact associated together
;
[b]
the purposes for
which they have associated together include regulating relations
between employers and employees or trade unions
.
25. It will therefore be
necessary to examine the actual process of forming an employers’
organisation
as well as its composition and membership and
the
activities it undertakes on behalf of its members
.’
(emphasis added)
[16]
In paragraph 26, the guideline goes on to look at the process of
forming the organisation which ‘
can give important
indications as to whether the employers who are members of the
organisation have associated together
’
(emphasis
added). It also prescribes that he aspects of the process that should
be examined include the number and size of the founding
members who
attended the inaugural meeting, the means by which the Constitution
was drafted and the collection of office bearers.
[17]
The concluding paragraph emphasizes what is of central importance
when considering the formation of the organisation:
’
27.
The
crucial issue
that must be addressed is whether
the
formation involved employers associated with one another to establish
employer’s organisation
.’
(emphasis
added)
The Registrar’s
decision
[18]
The registrar’s decision to reject COMCONEA’s second
application for registration, was taken after COMCONEA
had responded
to various requests for information from the registrar. The registrar
had requested further information to establish
that the organisation
was genuine and had complied with the LRA. After analysing the
information, the Registrar concluded:
‘
4.1 Section 95(3)
of the Act contains specific and express requirements for
registration of an employer's organisation. Thé
applicant
failed to meet the registration requirements, which have been
discussed above and referred to below hereunder:
4.1.1 The application
does not comply with provisions of section 95(3)(a) of the Act as the
applicant organisation
failed to satisfy this office that members
adopted the name of the applicant organisation in a properly
constituted meeting of members
for the formation an employers'
organisation which should have taken place on the date reflected
on LRA Form 6.2.
4.1.2 The applicant does
not comply with provision of section 95(3)(b) of the Act as the
applicant organisation
failed to satisfy this office
that
members have
adopted the constitution in a properly constituted
meeting of members
,
4.1.3 The applicant does
not comply with provision of section 95(3)(c) of the Act as the
applicant organisation failed to satisfy
this office that it has
address in the Republic.’
(emphasis
added)
The
registrar concluded that:
‘
It is the view of
this office that the applicant failed to comply with the requirements
of registration of the Act
and could not be regarded as a genuine
employers' organisation
as envisaged by the Act’ (
sic
)
(emphasis added)
[19]  The underlying
basis for registrar finding the organisation wanting under the
various provisions of s 95 may be expressed
briefly as follows:
19.1   S
95(3)(a): There were no minutes of the inaugural meeting of 8 June
2022 where the name of the organisation was
supposedly adopted. A
purported resolution and an attendance register, without minutes
detailing the deliberations of members was
insufficient proof of the
name being adopted with the agreement of members. There were also no
attendance registers for subsequent
meetings.
19.2   S
95(3)(b): There are no minutes of the constitution being adopted or
issues like membership fees, leadership elections
or governance rules
being discussed by ordinary members in any meeting. A resolution
without minutes is insufficient. Minutes from
meetings on 25 October
2022, 23 November 2022, 25 January 2023, 13 February 2023, 17 March
2023, and 9 June 2023 were submitted
without signed attendance
registers, despite repeated requests, which undermined their
authenticity and suggested meetings were
not properly constituted.
Key office bearers are employees of GABS, not independent officials
of the organisation. GABS was the
driving force behind the
application, given its links to subsidiaries (Sibanye, TBART) and the
N2 Express JV, and the overlapping
leadership roles.
19.3   S
95(3)(c): The organisation admitted that it used facilities of
founding members instead of having its own address.
[20]
Apart from concluding that the provisions of S 93(a),(b) and (c) had
not been satisfied, the registrar also expressed
views on other
perceived deficiencies in the constitution, which she seemingly also
believed indicated it was not a genuine employers’

organisation, though her failure to mention these in the concluding
sections of her decision suggests she might not have regarded
these
as decisive issues when it came to approving registration.
Nonetheless, the fact that she drew adverse inferences from
them
warrants their mention, as they are also indicative of her reasoning.
[21]
In summary, the issues she flagged were the perceived undemocratic
structure; the leadership was self-appointed and mainly
comprised
employees of the employer members; the membership arrangements and
financial arrangements suggested it was controlled
by the holding
company of the other employers (‘GABS’) and had no
operational independence. In particular, the absence
of signed
membership forms, unclear subscription fees, large deposits made by
members, absence of proof of expenses, lease agreements
or
independent functioning. The registrar was not persuaded that
affidavits proffered long after the inaugural meeting in lieu
of
minutes were ‘credible’, and the conflicting evidence
about who was present at the inaugural meeting was also
untrustworthy.
The grounds of appeal
[22]
In its appeal the association seeks to rebut some of the factual
findings of the registrar or dispute their relevance
and to question
the legal correctness of her approach.
Factual findings
[23]
The association appeals against certain factual findings of
registrar, namely that:
23.1   the
resolution passed by the appellant's founding members on 8 June 2022,
forming the appellant and adopting the
appellant's constitution ("8
June 2022 founding resolution"), included an 'attendance
register' and that this did not
'make sense’;
23.2    the
following could not be established:
23.2.1
the means by which the constitution of the appellant was drafted and
adopted;
23.2.2
the election of an executive committee or council of members and
election of office bearers; and
23.2.3
how the name and acronym of the applicant came about and how they
were adopted;
23.3   that it
was contradictory and confusing for Golden Arrow Bus Services (Ply)
Ltd ("GABS") to be represented
in the passing of the 8 June
2022 founding resolution by Mr ML Wilkin, a director of GABS, and for
Sibanye Bus Services (Pty) Ltd
("Sibaoye") to be
represented by Mr Dammert. when Mr Darnmert was also an executive of
GABS;
23.4   that it
was not clear who decided what money was to be paid into the
appellants' bank accounts (for subscription
fees) because this was
not discussed in the meetings of the appellant for which minutes were
submitted, and
23.5   that the
transactions pertaining to the appellant's bank account, invoices (to
members) and the appellant's constitution
reflect inconsistencies and
that the appellant failed to prove that ordinary members agreed on
the amounts to be paid to the appellant.
[24]
These grounds of appeal are addressed in more detail below.
a)
Formation –
[25]
The Registrar contends that there is insufficient proof of a properly
constituted inaugural meeting. No minutes or signed attendance

register were provided for the meeting of 8 June 2022. Affidavits
dated 31 July 2023 were rejected as non-contemporaneous. The

Registrar concludes that COMCONEA failed to show that employers
associated in a meeting to form the organisation and adopt its
name
and constitution.
[26]
COMCONEA submits that the founding resolution dated 8 June 2022 was
signed by authorised representatives of all founding
members. It
expressly allowed execution in counterparts and recorded the
formation of the organisation, adoption of its name, and
adoption of
its constitution. Moreover, confirmatory affidavits by Messrs
Dammert, Meyer, and other representatives of each of
the founding
employer members attested that formation discussions occurred and
that the resolution was passed by round-robin. Weekly
group executive
meetings, which were not typically minuted, discussed the formation.
COMCONEA addresses this point directly in
its submissions. It argues
that there is nothing contradictory or improper about Mr. Dammert
representing Sibanye Bus Services
while also being an executive of
Golden Arrow Bus Services (GABS). Sibanye is a subsidiary of GABS,
and Mr. Dammert serves on the
boards of both companies.
[27]
COMCONEA explained that the founding resolution required one
authorised signatory from each founding member. In this
case Mr. M.L.
Wilkin (‘Wilkin’), the Financial Director of GABS, signed
on behalf of GABS and Dammert signed on behalf
of Sibanye in his
capacity as a director of Sibanye. It submits that the ‘confusion’
on the part of the registrar had
no bearing on the statutory
requirements under section 95 of the LRA or the Guidelines.
b)
Leadership election-
[28]
The Registrar said there was no evidence of a democratic election
contemporaneous with formation. Minutes later supplied
lacked
attendance registers, undermining credibility. She insisted that
office-bearers must be elected by members at a properly
constituted
meeting.
[29]
The office-bearers and officials consist of the President, John
Dammert, Executive Members Toto Ntsobi (TBART) and Derick
Meyer (N2
Express JV), and Secretary Karin de Jongh. COMCONEA provided identity
documents, CVs, and letters of good standing from
the Compensation
Commissioner or SARS compliance PINs. The constitution allows
election by consensus or, failing that, by a two-thirds
majority
vote. Affidavits confirmed the election of the President and
Executive members.
c)
Membership and paid-up status
[30]
The Registrar demanded membership application forms, a list of
paid-up members, and proof of three months’ paid-up
status. The
Registrar concluded that COMCONEA failed to prove membership
compliance under the Guidelines.
[31]
COMCONEA argued that as founding members, GABS, TBART, Sibanye, and
N2 Express JV, were all members at the time of application.
Annual
subscription invoices dated 29 September 2022 were calculated at R34
per employee, and bank statements reflect payments
made on 12 October
2022. An invoice error for Sibanye was corrected by the actual paid
amount reflected in the bank statement.
Proof of deposit of
membership fees were provided.
d)
Banking activities
[32]
The Registrar required explicit proof of authorisation for
signatories and the opening of the account, such as resolutions
or
mandates. The Registrar found that the large balance with minimal
expenditure indicates “compliance-only” banking,
which
was not indicative of genuine organisational activity.
[33]
COMCONEA provided Nedbank confirmation of the existence of an account
in its name and when it was opened, as well as
bank statements
showing incoming membership fees and a positive balance of
R339,904.54 as at 3 July 2023. Special levy invoices
dated 8 June
2023 were raised for legal fees. COMCONEA explained that
pre-registration expenditure had been limited due to it being
newly
established and the fact that sectoral bargaining could only commence
after registration and admission to SARPBAC.
Legal conclusions
[34]
The association contests what it characterises as the following legal
conclusions of the registrar. There are obviously
areas of overlap
between how to legal interpret certain facts and whether correct
factual conclusions (some of which are mentioned
above) were reached
by the registrar.
[35]
In relation to the registrar’s
findings of flaws in the formation of the association, it disputes
her findings that:
35.1
a founding resolution could not be a
substitute for minutes of a meeting where members associated to form
a genuine employers’
organisation;
35.2
a failure to submit minutes of the founding
meeting meant non-compliance with the Minister’s Guidelines
under section 95(8)
of the LRA;
35.3
the absence in later meeting minutes of
references to the formation, leadership election, adoption of the
name and constitution,
or to subscriptions, indicated a flawed
formation process, and
35.4
the failure to prove members adopted the
name in a properly constituted meeting was an breach of sections
95(3)(b) and (c).
a)
Legal pre-requisites of formation and appointment of office bearers
[36]
The Registrar insists that the absence of minutes for the 8 June 2022
meeting is fatal and argues that the Guidelines
require proof that
employers associated in a properly constituted meeting to form the
organisation. Accordingly, a round-robin
resolution cannot substitute
for minutes of an inaugural meeting. He maintains that the affidavits
purportedly confirming the event,
were not reliable because they were
submitted long after the event. and lacked the contemporaneity of
minutes. COMCONEA did not
comply with section 95(3)(a) and (b)
because there is no evidence that members adopted the name and
constitution in a properly
constituted meeting, which is what the
Guidelines contemplate. On the question of the legitimacy of the
leadership, the Registrar
likewise insists that COMCONEA had to
provide evidence of a democratic election having taken place a
meeting, evidenced by attendance
registers and minutes.
[37]
Clause 8.2 of the constitution provides for election of the President
by consensus or, failing that, by a two-thirds
majority vote.
Affidavits confirmed the election of the President and appointment of
Executive members. The executive members of
the Executive Committee,
which manages and controls the organisation in terms of clause 10.1
of the constitution, comprises the
President and a representative of
each of the other founding members. Only in the event the
organisation has ordinary members is
it necessary for the AGM to
decide on who will represent those members on the EXCO. As the
President was appointed by consensus,
no vote needed to be taken. In
any event, COMCONEA disputes that either section 95 or the guidelines
require formal minutes to
be provided.
Disputed findings having
a bearing on the registrar’s decision that COMCONEA is not a
genuine employer’s organisation
[38]
Some of these criticisms overlap with points raised above.
[39]
COMCONEA rejects registrar’s finding that the absence of
signed attendance registers for each meeting undermined the
credibility
of the minutes and the decisions recorded therein,
because neither s 95 nor the guidelines stipulate such a requirement.
Moreover,
it had provided minutes of six Executive Committee meetings
and supplemented them with sworn affidavits from attendees,
confirming
the meetings and the accuracy of the minutes. The
registrar’s insistence on signed attendance registers imposed
unwarranted
formal standards and was at odds with an interpretation
of the statutory requirements which should have leaned in favour of
supporting
freedom of association rather than restricting it. T
he
crucial issue is whether employers associated together to form and
operate the organisation, for which there was ample evidence
in the
form of the resolution, minutes of meetings, and the affidavits
[40]
COMCONEA disputed the validity of registrar’s conclusion that
the secretary of the association, Ms. de Jongh (‘de
Jongh’),
could not also be an employee of GABS, one of the association’s
members. COMCONEA rejected the Registrar’s
suggestion that the
secretary could not be part-time because the
Labour Relations Act
does
not require an official of an employers’ organisation to
be employed full-time. It pointed out that
section 213
of the LRA
defines an “official” as someone employed as secretary or
in any prescribed capacity, whether or not that
person is employed in
a full-time capacity. Accordingly, it was irrelevant that de Jongh,
worked part-time and was seconded by
GABS at no cost to COMCONEA.
[41]
COMCONEA
rejected the finding that the association lacked the legitimate
leadership expected of a genuine employers’ organisation,
or
that the relationship of other members to GABS showed that it was
improperly behind the registration application. It acknowledged
that
GABS is a holding company of the other founding members but argued
that this is neither improper nor prohibited by the LRA
or the
Guidelines. Irrespective of the corporate relationship between them,
each of the members had similar collective bargaining
interests,
making it logical for them to associate in an employers’
organisation. Further, each founding member is a separate
legal
entity with its own board and fiduciary duties, and each resolved to
join COMCONEA. In respect of registrar’s questioning
the
’legitimacy’ of the leadership, the organisation points
out that its leadership structure as set out in its constitution

complied with the requirements of the LRA. It pointed out that in the
Labour Court decision in
Simunye
Workers Forum v Registrar of Labour Relations
[3]
the court held that autonomy in governance choices must be respected
and that the registrar is not a gatekeeper for conventional

organisational forms
[4]
.
[42]
COMCONEA attacks the registrar’s assumption that signed
membership application forms were necessary to prove membership
of
the association. It argues that this is not a requirement of
registration under
s95
of the LRA and it provided ample evidence of
its membership in the form of the founding resolution signed by
authorised representatives
of all founding members, confirmatory
affidavits from those representatives, invoices for annual membership
fees calculated per
employee and bank statements showing payment of
those fees by each founding member.
[43]
In respect of the arbitrator’s finding that clauses in the
constitution limited eligibility for election as a president
of the
association to the founding members which indicated a lack of
democratic governance, and therefore that it was not a genuine

employers’ organisation, COMCONEA, it submitted that neither
section 95
of the LRA nor the guidelines prescribe the manner in
which an employers’ organisation must structure its leadership
or eligibility
criteria. The autonomy of members to design their
governance arrangements is protected under the right to freedom of
association,
which the Labour Court had upheld in
Simunye
.
This issue had no bearing on whether it was a genuine employers’
organisation.
[44]
The registrar had concluded that the association had not complied
with
Section 95(3)(c)
, which requires an association to have an
address in the Republic. In support of this conclusion he points out
the absence of a
lease or dedicated premises and is not satisfied
that it uses the address of the largest member GABS. COMCONEA argues
that the
registrar has imposed additional requirements not required
by the LRA, and that the only purpose of having an address in the
country
is for purposes of being able to effect service of legal
documents on it.
Legal Principles
[45]
In this matter, the registrar refused to register COMCONEA both
because of its alleged non-compliance with sub-sections
95(3)(a),(b)
and (c) of the LRA and because, in his view, it did not amount to a
genuine employers’ organisation.
[46]
The appeal
against the registrar’s decision is an appeal in the wide sense
in which the aggrieved party has a second opportunity
to make out
their case in a re-hearing
[5]
.
[47]
In relation
to whether an applicant for registration has satisfied the
requirements of registration, the most recent Labour Appeal
Court
judgment addressing that issue held that the requirements of
section
95
must be met by a union wishing to register and the provisions
thereof do not impose unjustifiable inroads into its autonomy nor

present undue obstacles to registration
[6]
.
Thus, the provisions of
section 95
are mandatory requirements for a
union or employer’s organisation seeking registered status.
However, the court also made
it clear that in determining if
compliance has been demonstrated it is crucial to bear in mind that
compliance must be evaluated
with reference to the purpose of the
provision. At paragraph 36 of the judgment, the LAC reiterated the
dictum of the Constitutional
Court in
National
Education Health and Allied Workers Union v Minister of Public
Service and Administration and Others
[7]
,
viz:
“
The
central
element is to link the question of compliance to the purpose of the
provisio
n. It has to be determined “whether what the
applicant did constituted compliance with the statutory provisions
viewed in the light of their purpose
”
(emphasis
added)
It
follows that any evaluation of whether an applicant has complied with
a provision of
section 95
, must be informed by the reason for a
particular requirement.
[48]
In relation to the question whether a union or employer organisation
is a ‘genuine’ one, the LAC stated,
in the course of
explaining the nature of an appeal against a decision of the
registrar:
‘
The Labour Court
proceedings are, therefore, to facilitate the exercise of a judicial
discretion on the question of the genuineness
of the ‘trade
union standing’ of an applicant organisation.
Such
a decision is self-evidently a qualitative decision and if taken
properly, the Labour Court would have appreciated the nature
of its
function, applied its mind to the LRA, the guidelines and all the
facts adduced before it
.’
[8]
[49]
It is
important to note that in
Simunye
the LAC
made it clear that it did not have to deal with the registrar’s
finding that SWF was not a genuine trade union, because
it found that
its constitution did not comply with the prescripts for registration
in
section 95(5)
[9]
.
Nonetheless, it emphasised why
section 95(7)
had been introduced to
the LRA, which requires the registrar to be satisfied that a trade
union or employers’ organisation
is genuinely such an
institution, namely, to
preventing labour consultancies from registering as trade unions or
employer organisations only to secure rights of representation
in the
CCMA
[10]
. Further it
emphasised
that, in the case of a union, paragraph 7 of the guidelines
identified that the crucial issue to determine, was if it involved

the association of employees in order to establish an organisation to
regulate relations with their employers
[11]
.
By parity of reasoning, paragraph 27 of the guidelines which applies
to employer organisations, also deserves emphasis
[12]
.
[50]
The LAC
decision in
Simunye
also
stressed that the courts have recognised that the right of freedom of
association and the role played by employer organisations
and unions
make them associations ‘
worthy
of protection not only from the state but also from external actors
who may not share these goals’
[13]
.
Moreover, it highlighted provisions of the ILO’s Freedom of
Association Convention no 87, which had to be considered when

interpreting sections 23(2) and (4) of the Constitution, namely:
‘
[3]
Article 2 of the ILO’s Freedom of Association Convention, 87
states that:
‘
Workers and
employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organisation

concerned, to join organisations of their own choosing without
previous authorisation.’
[4]
Article 3 of the Convention provides that:
‘
Workers' and
employers' organisations shall have the right to draw up their
constitutions and rules, to elect their representatives
in full
freedom, to organise their administration and activities and to
formulate their programme…’
And that:
‘
The public
authorities shall refrain from any interference which would restrict
this right or impede the lawful exercise thereof.’
[5]
Section 3 of the LRA requires a court to interpret the LRA’s
provisions in a
manner which gives effect to the Act’s primary
objects, in compliance with the Constitution and in compliance with
South
Africa’s public international law obligations.
Freedom of association is given expression in section 8 of the LRA,
which provides that every trade union and employers’
organisation, subject to Chapter VI, has the right to determine its
own constitution and rules and hold elections for its office-bearers,
officials and representatives.’
[51]
In relation to the regulatory framework which registered unions and
employer organisations must comply, the LAC in
Simunye
reiterated
what it had previously  stated in the
JAWSA
judgment:
‘
[9]
Registration as a trade union or employers’ organisation, while
not compulsory, provides
both statutory protections and significant
benefits, including the right to exercise workplace rights, bargain
collectively and
represent members in various fora, including at the
Commission for Conciliation, Mediation and Arbitration (CCMA) and
bargaining
councils.
This, in exchange for a trade union or
employers’ organisation subordinating itself to the regulatory
prescripts of Chapter
VI, administered by the Registrar
.’
(emphasis
added)
[52]
However, I do not believe the court intended to imply that this
‘exchange’ empowers the registrar to determine
anything
more than whether the requirements for registration in section 95 are
met and whether the association is a genuine union
or employer’s
organisation as defined in s 213 of the LRA. In determining if
compliance is satisfactory, the registrar must
bear in mind whether
the purpose of a statutory requirement has been substantially
achieved and, in deciding if the association
is legitimate, the
registrar’s primary focus should be on whether it does fall
within the definition of a union or employers’
organisation.
The registrar’s powers do not extend to measuring compliance,
or evaluating the true nature of the organisation,
by comparison with
the registrar’s own conception of an ideal or typical
organisational structure.
[53]
Moreover,
it must be remembered that an association’s ‘subordination’
to the regulatory prescripts of Chapter
VI as a condition of
registration, must be interpreted in a way that least obtrudes on the
freedom of the association to determine
its own internal
organisational arrangements and operations, in keeping with the
Article 3 of Convention 87 and in conformity with
section 39(2) of
the Constitution.
[14]
Likewise, to the extent that the requirements of registration do
limit the right to freedom of association, they cannot be construed

in a manner that would be tantamount to applying the provisions of s
95 in a way that it would not satisfy the limitation test
of  section
36(1) of the Constitution
[15]
.
Evaluation
[54]  Firstly, for I
will address the contention that COMCONEA had not complied with the
requirements of section 95(3) [a],
[b] and [c] of the LRA. As
mentioned, these are mandatory requirements. Secondly, the
registrar’s decision that the association
was not a genuine
employer’s organisation will be considered.
Compliance with
section 95(3) of the LRA
Compliance with s 95 [3]
[a]
[55]
The registrar’s essential complaint is that he was not
satisfied with the evidence provided by COMCONEA that it
had adopted
a name that met the requirements of subsection 95 [4]. The letter
subsection nearly prohibits an organisation from
adopting a name or
abbreviated name which closely resembled that of another employer’s
organisation, and that might accordingly
cause confusion.
[56]
It is true that there was no minutes of a meeting at which the
founding members of COMCONEA agreed on the name of the
Association.
However, a resolution dated 8 June 2022 was adopted using a round
robin procedure and was signed by representatives
of each of the
founder members, expressly confirming the establishment and name of
the association as well as their status as founding
members. The
resolution expressly notes the collective bargaining form governing
conditions of service of the employees is SARBAC
and that they
considered that sectoral collective agreements determining those
conditions should establish a level playing field
between competing
employers insofar as wage levels are concerned.
[57]  The registrar
fixated on the question of whether there was evidence of
deliberations and discussions about arriving at
the decision to form
the organisation and about the choice of name and the adoption of the
constitution. These considerations were
important in leading to his
decision that the formation process of the organisation was flawed.
He rejected the resolution as evidence
of compliance with s 95(3)(a)
because it was merely a decision and without minutes showing how the
decision was reached was not
acceptable as proof of compliance.
[58]
The first and most obvious difficulty with the registrar’s
reasoning in this regard is that there is absolutely
no basis for
imposing a requirement that a joint decision by founding members of
employer’s organisation can only be validated
by minutes of
discussions preceding that decision. It is self-evident from the
resolution that there was unanimous agreement amongst
all the
founding members to form COMCONEA and to adopt its name. To decide if
s 95(3)(a) had been complied with all the registrar
needed to
determine was that the organisation had adopted a name which did not
create the possibility of it being confused with
another employer
organisation. As such, the resolution signed by the founding members
was more than adequate to establish this.
The registrar erred in
deciding that there was only one method of establishing whether the
subsection had been complied with, and
in doing so his application of
the provision was unduly restrictive and did not promote freedom of
association.
[59]
It is also
apparent that the registrar appeared to take a view that the
guidelines were also to be used in determining if the mandatory

requirements of section 95 were met.  In so doing, the registrar
erred in law because both section 95 [8] and paragraph 1
of the
guidelines
[16]
make it
patently clear that they apply only in the determination of whether a
union or employer’s organisation is a genuine
one. It seems
that the arbitrator allowed his analysis of whether COMCONEA is a
genuine employer’s organisation to form part
of his assessment
as to whether section 95(3) was complied with, whereas the two
inquiries are separate.
Compliance with s 95 [3]
[b]
[60]
On the question of whether COMCONEA had adopted a constitution
meeting the requirements of sections 95 [5] and [6], the
registrar
adopted a similar approach in finding that it had not done so, namely
that he was not satisfied that the Constitution
was adopted in a
properly constituted meeting of members. The absence of minutes in
which deliberations on issues like governance
rules and membership
fees were discussed was evidence that it had never been adopted in a
genuine meeting of the members. In passing
I note that the registrar
did not embark on an enquiry about whether the provisions of the
constitution satisfied section 95(5)
and (6) and has not contended
these were not satisfied.
[61]
The resolution of 8 June 2022 provided by COMCONEA included a
provision that the Constitution was adopted by the founding
members.
As in the case of the adoption of its name, the organisation argues
that the registrar impermissibly introduced formal
requirements not
provided for in section 95 nor even in the guidelines.
[62]
The registrar’s reasoning and conclusion regarding compliance
with s 95 [3] [b] is flawed on the same grounds which
applied to his
reasoning under section 95(3)(a).
Compliance with s 95 [3]
[c]
[63]
This provision merely requires that an employer’s organisation
‘has an address in the Republic. The registrar
unnecessarily
embellished this requirement by interpreting it to mean that it had
to have an address of its own at premises owned
or leased to it. He
reasoned that because it used the same address as a founder member
that it did not comply with the provision.
COMCONEA correctly
submitted that the logical purpose of providing an address of the
organisation is for the purposes of service
of documents, which is
supported by section 97 [4] of the LRA which states that service at
the address most recently provided to
the registrar constitutes valid
service.
[64]
In conclusion, the registrar ought to have concluded that COMCONEA
had met all the prerequisites of section 95(3).
Section 95(7) –
Is COMCONEA a genuine employers’ organisation?
[65]
It is indicative of the registrar’s conflation of the other
requirements for registration under section 95 with
the determination
of genuineness that he did not separate his analysis of whether
COMCONEA was a genuine organisation under section
95(7) from his
determination of whether COMCONEA had complied with the section
95(3). For this reason there is some overlap between
reasons he found
it had not met requirements of section 95(3) and the reasons he
doubted it was a genuine employer’s organisation.
Consequently,
there is some degree of repetition in the issues considered, though
the emphasis will be on their relevance to the
determination of the
genuine nature of COMCONEA as an employers’ organisation.
The formation process
[66]
As previously mentioned, the registrar found that COMCONEA failed to
provide credible evidence of a proper inaugural
meeting where
employers associated together to form the organisation. Only a
resolution dated 8 June 2022 was submitted, without
minutes of the
meeting. Subsequent meetings lacked signed attendance registers and
were not credible.
[67]
COMCONEA pointed out that such formalities are not pre-requisites for
the formation of the association and ample proof
of the founding
resolution and adoption of the constitution was furnished. Moreover,
affidavits were provided confirming the meetings
held. Section
95(3)(b) stipulates what must be demonstrated in relation to the
association’s constitution and, once again,
it is not essential
to produce a minute of a meeting as proof of its adoption.
Address in South Africa
[68]
This issue has already been canvassed above under the previous
discussion of compliance under section 95(3)(c) and given
that
COMCONEA was compliant with that section, it should not have any
bearing on the question of its genuine character.
Leadership Legitimacy
[69]
The Registrar concluded that COMCONEA's leadership was dominated by
individuals linked to Golden Arrow Bus Services (GABS),
compromising
independence. He noted, with disapproval that GABS in house legal
advisor was being deployed as the secretary of COMCONEA,
whereas she
ought to have been its employee. These factors reinforce a theme
running through the registrar’s opposition to
approving
COMCONEA’s registration is a barely disguised suggestion that
COMCONEA is an artificial contrivance and not an
employer’s
association in a genuine sense. Thus, for example, the registrar
discerns the hidden hand of GABS behind the formation
of COMCONEA,
noting that most of the other members are its subsidiaries.  In
light of this he found the leadership of COMCONEA
lacked legitimacy.
[70]
It was neither unreasonable of the registrar to identify GABS as the
driving force behind the establishment of COMCONEA,
nor to believe it
has influence over the other founding members who are its
subsidiaries. However, the fact remains that each of
the subsidiaries
are corporate entities in their own right and are eligible to be
individual members of COMCONEA, irrespective
of whether they have
corporate connections to GABS.  They might have more common
interests than if they were companies owned
by a variety of different
shareholders, but there is no reason why that commonality should
prevent them all belonging to the same
employer’s organisation,
even if one employer might dominate any voting because membership
voting rights of the founding
members are pro-rated to the relevant
staff complement they each employ. There is no statutory requirement
that members of an employer’s
organisation should have the same
voting rights.
[71]
The issue which the registrar does not explain in raising this factor
as an issue, is why he believes this tends to demonstrate
that
COMCONEA did not involve employers associating with one another to
establish an employer’s organisation.
Membership and finances
[72]
The Registrar found no signed membership forms and noted large
deposits from GABS and subsidiaries and concluded this
was
compliance-driven funding rather than representing genuine
subscriptions.
[73]
COMCONEA correctly notes that neither the LRA nor Guidelines require
signed forms. Moreover, invoices for payment of
membership fees were
provided as well as bank statements and documents explaining how fees
were determined. The fact that deposits
far exceeded expenses at the
stage it applied for registration was simply because the organisation
was at an early stage of establishment
and expenditure was limited.
Proof of the existence of COMCONEA’s bank account was provided.
[74]
Quite apart from this, the founding resolution identified all the
founding members and their representatives signed the
resolution.
Although the registrar seems to have acknowledged that membership
fees were paid, he seems to have regarded proof of
membership fee
payments as an aspect of compliance despite this not being a
requirement for registration. To the extent that he
regarded it as
relevant to the question whether it was a genuine organisation, his
deduction that the deposits made appeared to
be solely for the
purpose of compliance is difficult to fathom. Proof of such
membership fee payments for registration purposes
is not required, so
even on a hypothetical basis they could not have been made for
compliance purposes. Even the guidelines do
not identify this as an
indicator of the genuine nature of the organisation. In any event,
there was no factual basis for the registrar
to consider that the
payments made was some kind of sham transaction.
Democratic Principles
[75]
The Registrar found that the constitution restricted eligibility for
presidency to founding members, and this undermining
democratic
governance. COMCONEA contends that its constitution provides for
election by consensus or two-thirds majority, consistent
with
democratic principles. Undoubtedly, any non-founder member would be
at a permanent disadvantage if it had aspirations to attain
the
presidential office.  The question is whether the registrar is
entitled to demand a more open system of candidacy.
[76]
Section 95(5) of the LRA sets out what issues a union or employers’
organisation must contain.  While it is
required to contain
election procedures, meeting procedures and the like, the LRA does
not impose any limitations on the minimum
features such procedures
must contain. Nowhere does it prescribe that the constitution may not
contain any provisions which differentiate
between classes of
members. The only limitation is contained in section 95(6) which
prohibits direct or indirect discrimination
against anyone on grounds
of sex or race.  Neither does it prescribe that only one class
of membership is permitted or require
a constitution to measure up to
a particular democratic model. This approach is consistent with a
recognition that unions and employers’
organisations are
voluntary associations which enjoy a degree of autonomy in the manner
they conduct their affairs.
[77]
The legislature might have decided to impose a requirement that
constitutions could not have classes of members with
different rights
or that all structures had to satisfy certain egalitarian standards,
but it did not. It does not lie within the
discretion of the
registrar to assume the role of the legislature in that regard by
evaluating constitutions against his own yardstick
of what they ought
to contain. Moreover, he does not explain why the rules governing
election of a president are indicative that
COMCONEA is not a genuine
employers’ organisation.
Appointment of a
secretary
[78]
The registrar found the appointment of De Jongh as the secretary of
the applicant to be irregular.
[79]
Clause 13 of the constitution provides for the appointment of a
secretary by the executive committee.  The clause
also sets out
the duties the secretary must perform.  De Jongh was employed by
GABS as a legal advisor under a conventional
contract of employment.
In September 2022, COMCONEA, GABS and De Jongh concluded an agreement
in terms of which she accepted
appointment as the secretary of the
organisation on a part-time basis and GABS agreed to make her
available during her ordinary
working time to perform the duties of a
secretary.  The agreement did not constitute a new employment
contract and could be
terminated by any party on notice, without
affecting her employment with GABS.
[80]
The registrar was concerned that in terms of section 213 of the LRA,
she could not qualify to perform the work of the
secretary even on a
part-time basis because she was not employed by COMCONEA.  In
terms of the definition of an official a
secretary of an employers’
organisation is deemed to be one.
“
official”
in relation to a trade union, employers’ organisation,
federation of trade unions or federation of employers’

organisations
means a person employed as the secretary
,
assistant secretary or organiser of a trade union, employers’
organisation or federation, or in any other prescribed capacity,
whether or not that person is employed in a full-time capacity
.
And, in relation to a council means a person employed by a council as
secretary or in any other prescribed capacity, whether or
not that
person is employed in a full-time capacity;..
[81]
The LAC in
Simunye
did not
accept that SWF’s constitution provided for the office of a
secretary as required by section 95(5)(i)
[17]
of the LRA because it allowed for a different secretary to be
appointed at each meeting and merely because that person had to keep

record of the meeting in a minute book did not meet the threshold of
defining the functions of the office of a secretary
[18]
.
In this instance, COMCONEA’s constitution does make provision
for the establishment of the office of a secretary and
defines the
functions. The question remains whether De Jongh is properly
appointed as an official owing to her employment by GABS.
Even
though the parties have reached an agreement that should ensure she
can fulfil the secretarial function on a part time basis,
while
remaining an employee of GABS, this arrangement would seem to amount
to a form of a part-time secondment of De Jongh to perform
duties for
COMCONEA, while she remains employed by GABS.  On the face of it
this does not seem to satisfy the requirement
of the definition of an
official in section 213.
[82]
Accordingly, the registrar might well be correct that her engagement
on a part-time seconded basis does not mean she
can be considered an
official of the union. Even so, the clause in COMCONEA’s
constitution governing the secretarial office
is concerned only with
complying with section 95(5) in establishing the office of secretary.
The question of compliance raised
by the registrar relates not to the
constitution itself, but whether De Jongh’s appointment as
secretary is compliant with
the LRA.  Clearly, this is an issue
which needs to be resolved if problems are not to be encountered
later as to whether she
can properly perform the statutory functions
of a secretary, but that does not have a direct bearing on whether
the association
can be registered because it is not a breach of
section 95(5)(j) as such, nor does it seem to be relevant to whether
the registrar
was confronted with a
bona fide
employers’
organisation. Whether De Jongh’s appointment is in conformity
with the LRA is a separate matter from whether
COMCONEA’s
constitution has complied with s 95(5)(i).
[83]
What is startling about the registrar’s approach to determining
the genuineness of the organisation, is that absolutely
no attention
was paid to the very reason why COMCONEA was formed in the first
place. If that is considered, it is blindingly obvious
that it
originated precisely out a legal obligation (the settlement
agreement) and the objective of being able to participate in
SARBAC’s
collective bargaining forum. That objective is one of the very
reasons why the LRA provides for the registration
of employer
organisations and answers the ‘crucial issue’ posed in
paragraph 27 of the guidelines, namely whether the
formation involved
employers associated with one another to establish employer’s
organisation.
Conclusion
[84]
In light of the reasoning above, I am satisfied that the registrar
erred in his findings of fact an law and on a proper
consideration of
the issue he was required to determine, COMCONEA ought to have
registered, even if he had legitimate concerns
about whether the
terms of the secretary’s appointment were satisfactory.
[85]
Accordingly, the registrar’s decision to reject COMCONEA’s
registration application must be set aside and
replaced with a
decision that it must be registered. In passing, I must express
concern at what appears to have been a very partial
approach adopted
by the registrar to the application, which was not warranted on the
information provided in support of the application.
Far from
promoting collective bargaining by representative organisations, the
decision obstructed progress being made to achieve
that objective. To
the extent that the registrar exercises a gatekeeping role in
deciding to register unions and employer organisations,
based on
whether they are bona fide organisations the enquiry should be guided
by the kind of mischief that the guidelines were
intended to thwart,
such as organisations established for profit, or to permit them to
represent parties in the CCMA or in court.
Order
1.  The appeal
against the decision of the Respondent on 9 October 2023 not to
register the Appellant as an employers’
organisation under
section 96
of the
Labour Relations Act, 66 of 1995
, is upheld.
2.  Within 15 days
of the date of this judgement, the Respondent must register the
Appellant by entering the Appellant’s
name in the register of
employers' organisations.
3.  No order is made
as to costs.
R
Lagrange
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:

S Harrison from Edward Nathan Sonnenbergs Inc.
For the
Respondent:
S Tshungu
Instructed
by:

State Attorney Cape Town
[1]
(2025) 46 ILJ 1906 (LAC)
[2]
No
R 1395, gg 42121, 19 December 2018.
[3]
(2023) 44
ILJ
2021 (LC)
[4]
At
paragraph 38.
[5]
Registrar
of Labour Relations and Another v Justice for All Workers of South
Africa
(2025)
46
ILJ
351 (LAC) at paragraph 8.
[6]
Registrar
of Labour Relations v Simunye Workers Forum
(2025) 46
ILJ
1906 (LAC) at paragraph 37.
[7]
(2022) 43 ILJ 1032 (CC) at para 71.
[8]
See
footnote 4
supra.
[9]
At
paragraph 52.
[10]
At
paragraph 24.
[11]
At
paragraph 25.
[12]
Paragraph
27 of the guidelines reads:
‘
The
crucial issue that must be addressed is whether the formation
involved employers associating with one another to establish
an
employer's organisation.’
[13]
At
paragraph 7, citing the Constitutional Court judgment in
National
Union of Metalworkers of South Africa (NUMSA) v Lufil Packaging
(Isithebe) (A Division of Bidvest Paperplus) (Pty) Ltd
and Others
[2020] 7 BLLR 645
(CC).
[14]
‘39(2) When interpreting any legislation, and when developing
the common law or customary law, every court, tribunal or
forum must
promote the spirit, purport and objects of the Bill of Rights.’
[15]
Section 36(1)
states:
‘
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom,” considering
factors such as:
the
nature of the right,
the
importance of the purpose of the limitation,
the
nature and extent of the limitation,
the
relationship between the limitation and its purpose,
and
whether there are less restrictive means to achieve that purpose’
[16]
The relevant portion reads “
Purpose
1.
This document contains guidelines published by the Minister of
Labour in consultation with Nedlac, that are to be applied by
the
Registrar of Labour Relations in determining whether an application
for registration for in terms of the
Labour Relations Act (LRA
) is a
genuine trade union for a genuine employer's organisation. In terms
of
section 95
[7] of the
Labour Relations Act, the
Registrar may
only register a trade union or an employer's organisation if the
Registrar is satisfied that it is a genuine trade
union or genuine
employers’ organisation.’
[17]
The secioin (i)    establish the office of secretary
and define its functions;
[18]
At
paragraph 39.