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[2026] ZALCPE 4
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Ngcingwana v Nelson Mandela Bay Municipality (P13/2024) [2026] ZALCPE 4 (22 January 2026)

THE LABOUR COURT OF
SOUTH AFRICA, GQEBERHA
Reportable
Case
No: P13/2024
In the matter between:
MZEKELO NGCINGWANA AND
OTHERS

Applicants
and
NELSON
MANDELA BAY
MUNICIPALITY

Respondent
Heard:
26 November 2025
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives by email and publication
on the Labour
Court’s website. The date for hand-down is deemed to be on 22
January 2026.
JUDGMENT
THYS, AJ
Introduction
[1]  In this matter,
a group of employees of the Nelson Mandela Bay Municipality referred
a dispute to the South African Local
Government Bargaining Council
and in their referral, sought relief in the form of immediate
placement on Task Grade 4, together
with elevation to the positions
of security guards and/or candidate security officers, the
retrospective implementation of the
grade outcome applicable to the
elevated post from the date of appointment, and the amendment of
their job titles to reflect the
appropriate post.
[2]
Although the dispute was one of mutual interest, it nevertheless or
regardless of the correctness of the process followed,
proceeded to
arbitration because the employees are engaged in essential services
and are, by law, precluded from resorting to strike
action. Put
differently, mutual interest disputes (ordinarily resolved
through industrial action) must, in terms of section
74(4) of the
Labour Relations Act
[1]
, be
referred to compulsory arbitration.
[2]
This Court, in
City
of Cape Town v South African Local Government Bargaining Council and
Others
[3]
,
expressed the principle in the following terms:
“
Parties
engaged in essential services are precluded from participating in a
strike as a mechanism to resolve an interest dispute
… A party
to an essential service dispute who refers a dispute to the council
is calling upon an arbitrator to resolve the
impasse between the
parties through arbitration and is effectively requiring the
arbitrator to determine the outcome of the interest
dispute between
the parties by issuing an award which will be binding upon the
parties.”
[3]  The Bargaining
Council processed the referral and assigned it to Commissioner Naledi
Burwana Bisiwe, who later produced
an award (as contemplated by
section 142A of the LRA) and recorded therein that, following earlier
conciliatory “
discussion
”, the parties reported to
her, on the return day, that they had settled their dispute. It is a
matter of common cause that
no written agreement was ever concluded
and the ‘
discussion
’ to which the Commissioner
refers yielded, at most, an informal oral exchange of uncertain,
unfixed or disputed content.
[4]
It is also common knowledge that the award was issued in terms of
section 142A
,
as the Commissioner expressly marked it as such on the front cover,
and further confirmed this at paragraphs 3 and 4, as well
as
paragraph 7 (d) of the executive portion of the award. This
conclusion is corroborated by the employees’ own papers given

that at paragraph 11 of the founding affidavit, they allege that
their dispute was amicably resolved by way of a settlement agreement

which was subsequently made an arbitration award in terms of
section
142A
. Furthermore, at paragraph 15.1
therein, they expressly contend that the award satisfies the criteria
set out in
section 142A
.
[5]  This is an
important aspect, for it, at the very least, demonstrates that the
employees and the Commissioner approached
the process on the footing
that it was a section 142A issue and not a compulsory arbitration
under section 74(4) in respect of
an essential-services
mutual-interest dispute.
[6]  There is
considerable debate (between the parties) about the existence of the
‘alleged’ agreement and/or its
exact terms, but leaving
that controversy aside, it is the Commissioner’s award, not the
disputed agreement that remains
the operative instrument and is the
chief subject of the present proceedings. This is because the award,
once issued under section
142A carries legal effect and is capable of
judicial scrutiny, whereas the underlying agreement, even if it
properly existed, has
no independent status or is, at this stage
and/or according to the ‘pleaded’ case, merely a
secondary consideration,
before this Court.
[7]
It is also uncontroversial that Commissioner Burwana Bisiwe
bypassed the statutory requirement of a written settlement
and
instead straightaway transposed the parties’ alleged oral
“discussion”, or unfixed “understanding”
into
an arbitration award under section 142A.
The
record, in this regard, shows that the matter was heard on 31 May
2021, and the award is dated the same day, on the cover, in
the
opening paragraph, and beneath the Commissioner’s signature.
The inference is inescapable that the “supposed agreement”

was reached and the award drafted instantly or contemporaneously,
without first reducing it to writing, without obtaining any
application from the parties as section 142A requires, and without
following the procedures outlined in section 74(4). These are
among
the issues to which I shall revert when dealing with the matter more
fully in this judgment.
Employee’s
application
[8]  The employees
contend that the employer breached the unwritten agreement and/or
subsequent award, particularly on retrospectivity.
They argue that
proper implementation of the agreement and subsequent award would
render the employer liable for ‘back pay’.
[9]
In order to remedy the alleged breach, the employees have approached
this Court and mandated Mr. Ngcingwana to act as
the lead applicant,
and/or as the applicant formally cited, in these proceedings. The
employees’ application is aimed at
elevating the settlement
agreement, already crystallised into an arbitration award, into the
status of a court order and is grounded
in section 158(1)(c) of the
LRA. This section expressly empowers the Labour Court, upon
application, to make any arbitration award
an order of court.
[4]
[10]  The employees’
application is strategically significant because, unlike a
self executing judgment of this
Court, an arbitration award
lacks automatic enforceability. Although binding in law, compliance
is not assured because a beneficiary
must approach the Labour Court
to have the award made an order of court. Once elevated, the award
acquires the full force of law
and non compliance exposes the
defaulting party to contempt proceedings and other coercive remedies.
Counter application
[11]
To resist this potential consequence, the employer has brought a
section 158(1)(iv) application, in terms of which the
Labour Court is
authorised to make declaratory orders.
[5]
[12]
In most instances, litigants turn to the courts seeking ‘remedial’
decrees, which are orders that compel
performance, enforce
obligations, or provide compensation to resolve disputes. Declaratory
relief, however, stands apart from this
remedial paradigm. Rather
than imposing duties, sanctions, or remedies, a declaratory order
operates as a judicial statement of
rights or, in simple terms, acts
as a clarifying mechanism. It dispels uncertainty by clarifying the
rights and obligations between
disputants, thereby defining their
respective standing in law, without the imposition of remedial
consequences.
[13]  The
cornerstone of the employer’s application is that it seeks a
declaration to the effect that the award is a
nullity
ab initio
.
The employer contends, this is so because the award was issued
without the required statutory authority and is
ultra vires
.
Consequently, the award is incapable of enforcement, devoid of legal
effect and falls beyond the reach of section 158(1)(c) of
the LRA.
Procedural ruling
[14]
Even though two applications
[6]
were placed before me, the employee’s application was filed
first and would ordinarily be heard first. However, Mr. Kroon,
SC
appearing on behalf of the employer submitted that considerations of
judicial economy and logic dictate that the employer’s

interlocutory application should be addressed first.
[15]
I endorsed this logic because if the award withstands the employer’s
(counter) attack and is confirmed as enforceable
can it properly be
elevated into an order of court, at which point it acquires binding
authority and the respect accorded to judicial
decrees. Conversely,
should the arbitration award ultimately be declared unenforceable,
elevating it to the status of a court order
would serve no practical
purpose because without an enforceable award, there is simply nothing
to enforce. I elaborate and give
reasons for this position hereunder,
setting out both the legal rationale and the practical implications
that flow from it.
[16]
It is my view, since the central purpose and theme of the LRA is to
promote the “
effective
”
resolution of labour disputes
[7]
,
the Labour Court (being a creation of this Act) must at all times
give effect to its objectives. In this context, “
effective
”
carries a dual meaning; first, that disputes must be resolved,
through practical measures that avoid duplication, waste
of judicial
resources, and so on; and second, that they must be resolved
competently, definitively, decisively, finally, and the
like. The
Labour Court is thus required by law to adjudicate matters by
adopting practical measures that enhance efficiency in
dispute
resolution. The same principle applies equally to the CCMA and to the
various Bargaining Councils, which, as products of
the LRA, are
similarly obliged to give effect to its objective of promoting the
effective (and expeditious) resolution of labour
disputes.
[17]  Accordingly,
when this Court is confronted with an application to make an
arbitration award an order of court while an
active dispute regarding
its validity remains unresolved, whether by way of a declaratory
application (as in the present matter)
or otherwise, that standoff
must first be heard before the award can be enforced. This approach
is both principled and pragmatic,
as it ensures that the Court does
not enforce an award whose validity is under challenge and
questionable.
[18]
My approach is not a Robinson Crusoe stranded alone on an island it
finds, for example, support in
IMATU
obo Kelebone Khoaelene v UT Malinzi and Raymond Mhlaba
Municipality
[8]
.
This court proposed that where an attempt was made to enforce an
arbitration award through contempt proceedings, the pending review

application had to be heard first.
The
rationale (as stated above) is that if the review were to fail, the
arbitration award would remain intact, making enforcement
proceedings
proper.
This
Court adopted a similar approach in
Botha
v Department of Education (Limpopo Province) and Others
[9]
,
where it first addressed and determined the declaratory application
before considering the contempt of court application.
[19]  In the
circumstances, my endorsement is warranted because prioritising the
employer’s interlocutory application
accords with established
legal principles and best promotes the LRA’s overarching
objective of efficiency.
Power and Jurisdiction
[20]
This conclusion naturally leads to a consideration of the Court’s
power and jurisdiction to grant the relief sought.
[21]  By virtue of
section 158(1)(a)(iv), the Labour Court is expressly empowered with
the authority to grant declaratory relief
whenever circumstances
require clarification of rights, obligations, or legal status.
[22]
Nonetheless, it is not enough for this Court (lacking inherent
jurisdiction) merely to be vested with statutory ‘
power’
;
it must also be properly clothed with ‘
jurisdiction’
to exercise that power lawfully.
For
example, the Labour Court may be granted the statutory power to issue
costs orders, in terms of section 158(vii), but that power
cannot
extend to matters falling outside its jurisdiction, such as divorce
proceedings.
[23]
It bears noting that in
Booysen
v Minister of Safety and Security and Others
,
[10]
this
Court declined to grant the relief sought, in that matter, as its
inherent powers are confined to matters within its jurisdiction.
This
approach was recently given approval by the Labour Appeal Court in
Cibane
and Another v Premier of Province of Kwazulu-Natal
[11]
and illustrates that statutory power without jurisdiction is
ineffectual.
[24]  Therefore to
avoid its orders being void, and consigned to oblivion, this Court
must be satisfied not only of its statutory
power but also of its
jurisdictional competence to issue orders sought.
[25]
In
National
Commissioner of Correctional Services, N.O. and Another v Zono
[12]
,
this Court had occasion to pronounce on the scope of its jurisdiction
in relation to declaratory orders. It clarified that section
157(1)
of the LRA establishes the Labour Court’s jurisdiction in
respect of all matters that, “
in
terms of the Act or any other law
”
[13]
,
are to be determined by this Court. The phrase “
in
terms of the Act
”
must accordingly be understood as referring to matters provided for
in the LRA and given that declaratory orders are explicitly
provided
for, in section 158(1)(a)(iv), it follows that when this provision is
read together with section 157(1), the Labour Court
is also vested
with jurisdiction to issue declaratory orders.
[26]
However, quite apart from questions of power and jurisdiction, it
remains incumbent upon an applicant (in this case,
the employees) to
establish, on the merits, a substantive basis for the relief sought.
Incorrect procedure?
[27]  Nevertheless
regardless of the questions of the power, jurisdiction, as well as
the merits, the employees contend that
this court ought to decline to
entertain the employer’s application on, among others, the
basis that – (i) an arbitration
award, once issued, is final
and binding in terms of section 143 of the LRA, (ii) it cannot be
impugned on the merits of the dispute
through a declaratory order
(iii) the proper avenue for challenging the validity or correctness
of an arbitration award is a review
application under section 145 of
the LRA (iv) therefore to permit a declaratory order, in these
circumstances, would amount to
an impermissible circumvention of the
statutory review process, and (v) the employer’s supine
approach ought, in the same
vein, to be condemned.
[28]  Mr. Nzuzo’s
contention, on behalf of the employees that an arbitration award is
“
final and binding
” under section 143 of the LRA,
is correct in principle. However, section 143(1) contemplates that an
award is binding unless
it is set aside on review (or appeal),
rescinded in terms of section 144, or declared invalid through
appropriate declaratory relief
under section 158(1)(iv). The final
and binding principle is thus not absolute.
[29]  My view is
that, given the purposive and distinctive nature of the LRA as a
specialist dispensation, it is improbable
that the legislature
intended to specifically confer jurisdiction on the Labour Court to
grant declaratory orders, only to have
that power curtailed whenever
review of an arbitration award is available. Had such a limitation
been contemplated, the legislature
would have said so expressly.
[30]
Declaratory relief is not incidental it forms part of the broader
remedial framework available to the Court, and serves
to prevent
unnecessary procedural detours. To exclude it in the context of
review proceedings would create an artificial restriction
and
frustrating the Court’s ability to clarify rights, obligations,
and the legal consequences of invalid arbitration awards.
This
consideration is particularly compelling in circumstances where
review does not constitute the most appropriate remedy, or
where a
party has legitimately elected not to pursue that route, and instead
alleges that the decision, under scrutiny, is a nullity.
[31]  The employees’
argument conflates two distinct issues which is the review (of the
merits of the award) and declaratory
relief (on, for example, its
enforceability or validity). Far from undermining the principle of
finality the employer’s application
is concerned not with
litigating the reviewable merits but with clarifying whether the
award can lawfully be enforced.
[32]  Accordingly,
the Labour Court’s power to issue declaratory orders must be
seen as integral to its role in supervising
invalid arbitration
awards and the legislature, in crafting the LRA, intended to provide
this Court with a comprehensive toolkit
to address the complexities
of labour disputes, and declaratory relief is a critical component of
that toolkit.
[33]
Apart from my interpretation, the principle that review proceedings
may serve as an alternative remedy has also been
recognized by the
judgment in
NUMSA
v CCMA and Others
[14]
,
where this Court observed that review proceedings, if the correct
test is applied, may equally provide a means of resolving the
problem
in place of a declaratory application. The Court nevertheless
proceeded to hear and determine the declaratory application,
thereby
emphasizing that the existence of the review route does not, in
itself, operate as a bar to declaratory relief.
[34]
This approach also resonated with
Remo
Ventures (Pty) Ltd and Others v Honourable Justice Neels Claassen and
Others
[15]
,
wherein the High Court entertained an application for declaratory
relief, which was framed in the alternative to a prayer that
the
arbitrator’s award be reviewed and set aside. This procedural
posture demonstrates that declaratory relief may not only
coexist
with a review application but, in appropriate circumstances, operate
in the place of a review. Moreover, the
Remo
Ventures
,
matter proceeded on appeal, yet the appellate court did not criticise
or disturb the procedural approach adopted by the court
a
quo
.
The absence of any adverse comment reinforces the acceptability of
this method, underlining that the coupling of declaratory relief
with
review or the substitution of one for the other is procedurally and
judicially acceptable.
[35]  In other
words, these authorities confirm that our courts have acknowledged a
measure of procedural flexibility and litigants
are not rigidly
confined to one form of relief or cause of action, but, for example,
may pursue declaratory orders that effectively
serve the same purpose
as review proceedings.
[36]
As a result, the employer cannot be faulted for the procedure it
adopted.
[37]
I also do not fault the employer for electing not to review the award
and instead adopting a ‘wait and see’
approach,
particularly given that arbitration awards are not all automatically
enforceable. Awards, for example, that are tainted
by illegality,
offend public policy, or have been issued without jurisdiction or
ultra
vires
are a nullity in law and therefore unenforceable.
[16]
[38]
Consequently, in regard to the employees’ supine objection, it
is my determination, a losing party who regards
an award as ‘
a
nullity
’ is entitled to remain
passive and await enforcement proceedings by the successful party,
rather than being compelled to
take proactive steps to challenge the
award.
[39]
Again my view is not isolated because this principle was expressly
accepted by the High Court in
Independent
Municipal and Allied Trade Union v Buffalo City Municipality and
Professor R Midgley
,
[17]
where it was stated that a party against whom an award has been given
may adopt a passive stance, await enforcement proceedings,
and then
raise invalidity as a defence to resist enforcement. It is therefore
rational for a party (like the employer) to reserve
its challenge
until enforcement is pursued, thereby avoiding unnecessary litigation
over an award that may never be acted upon.
[40]
Even if I am wrong in my above conclusions it is my judgment that
each case must be determined on its merits and/or it
remains trite
law that declaratory relief lies particularly within the discretion
of the Court to grant or refuse.
[18]
[41]
In exercising the discretion afforded to me, I find no legal basis to
censure the employer for electing the declaratory
rather than the
review path. This is particularly given the specific merits of the
case as well as the employees’ extensive
delay in enforcement,
as the award was issued on 31 May 2021 while the employees’
application was only delivered almost three
years later, on 20
February 2024. In other words, this delay further underlines the
prudence of the employer’s decision to
await formal proceedings
rather than litigate prematurely.
[42]  It follows
that the employer’s choice of procedure was neither irregular
nor impermissible, but entirely consistent
with established judicial
practice. Consequently, I reject the employees’ contention that
the employer adopted an incorrect
procedure.
Requirements for
declarator
[43]
Even so, it is not sufficient for an applicant merely to demonstrate
that the correct (declaratory) procedure has been
followed.
For
litigants to succeed in obtaining declaratory relief, they must also
satisfy the Court on three essential fronts – first,
that the
Court has the requisite power and
jurisdiction
to grant the order; second, that the applicant demonstrates a direct
and legitimate
interest
(standing) in the dispute; and third, that a specific right,
obligation, or legal (positions, relationships) status exists which
requires
judicial clarification
of a controversy of a justiciable nature. In other words, the
application must not be confined to academic speculation or abstract

propositions. Its purpose is to secure the resolution of an actual
controversy and to dispel a material uncertainty that has practical

consequences for the parties concerned.
[19]
Analysis of material
[44]  In my
judgment, the employer’s application meets all these
requirements. Firstly, because the LRA, as already noted,
clearly
confers upon this court both the power and
jurisdiction
to
make declaratory orders. Secondly, the employer is directly affected
by the award, because if the employees’ application
succeeds or
reaches its final outcome, the employer may be compelled to comply
with an award that is legally compromised. In such
circumstances, the
employer’s legal position would be directly undermined and its
interests materially prejudiced by the
ultimate order of this Court.
Therefore, I find that the employer also satisfies the
interest
requirement, in the matter, given its clear and substantial stake in
the award or potential court order.
[45]
This leads to the third requirement, which is linked to the paramount
question namely whether the Commissioner acted
with the requisite
authority when issuing the award under examination, such that it
cannot be enforced as a binding order of the
Labour Court.
[46]
In this context, the employer’s application is consequently or
self-evidently aimed at resolving a real controversy,
which is
neither academic, nor abstract, nor hypothetical. The declaratory
relief, once granted, will operate with legal force
and effect,
establishing rights and obligations that will indeed bind the parties
and govern their future conduct.
[47]  Another
consideration is that if the law does not permit an arbitration
award, the consequences are unmistakable –
the public interest,
the interest of justice, and the rule of law compel the judiciary to
fulfil its constitutional function: to
declare the law and to secure
clarity, legality, and justice.
Written agreement
required
[48]
The first and most immediate clarity that emerges from the
abovementioned controversy, or factual and legal reality,
is that
section 142A speaks in unequivocal terms. Its wording is explicit and
leaves no room for ambiguity. A settlement agreement
must be reduced
to writing in order to fall within its scope. This is underlined by
section 142A(2), which provides: “
For
the purposes of subsection (1), a settlement agreement is a
written
agreement
in settlement of a
dispute …”
.
[49]  The statutory
text therefore establishes a threshold requirement that only written
agreements qualify for conversion
into arbitration awards under this
provision.
[50]  In support of
this interpretation, Brassey in
Employment and Labour Law, Vol. 3:
Commentary on the Labour Relations Act
observes: “
An
oral agreement cannot … be made an award in application
proceedings of the nature envisaged in this section.”
This
authoritative commentary reinforces the plain meaning of the statute
and confirms that oral undertakings, however genuine
or consensual,
fall outside the ambit of section 142A.
[51]  Consequently,
the Commissioner had no authority to convert a supposed oral
agreement into an enforceable section 142A
arbitration award.
Two distinct
pathways
[52]
Another factor discharging clarity is the phrase
“
by
agreement between the parties or on application by a party
”
in section 142A. It is necessary to have regard to this provision,
since the employees and/or the Commissioner
clearly
failed to appreciate that this section contemplates only two distinct
pathways by which a settlement agreement may be converted
into an
arbitration award – i.e. either (one) by agreement between the
parties or (two) on application, by one of the parties.
The “
on
application
”
route applies where one party seeks enforcement because the other
party has, for example, failed to comply with the agreement.
The “
by
agreement
”
route, in contrast, applies where both parties jointly agree that
their written settlement agreement be made an award, thereby
giving
it the force of law.
[53]  This section
expressly employs both the singular term “
party
”
and the plural “
parties
.” The use of these
distinct terms confirms that the legislature envisaged that a single
party
may apply for the agreement to alter into an award, and
another where both
parties
, acting jointly, may consent to
their written agreement being made an award. To read the section
otherwise would do harm to its
language and undermine the legislative
intention.
[54]
This statutory precondition is absent, in this matter, because there
had factually not been agreement or an application
by any party to
make their “written” agreement an arbitration award. In
any event, this was an impossible feat, since
no written contract
existed to provide the basis for the “agreement” or
“application” contemplated in section
142A.
[55]
The factual reality and legal consequence is that the Commissioner
acted on her own accord, thereby irregularly and unlawfully
creating
a third pathway wholly
ultra vires
or outside the scope of section 142A.
Section 74
exclusion
[56]
Another important consideration is that section 142A provides that
the CCMA or empowered Bargaining Councils can turn
a settlement
agreement into an arbitration award only if the dispute is one that
could properly be referred to arbitration or the
Labour Court, but
excludes disputes that fall under section 74(4) or section 75(7) of
the LRA.
[57]
The exclusion means if the dispute is one about essential services,
even if the parties reach a settlement agreement,
the Commissioner
cannot convert that agreement into an arbitration award under section
142A.
[58]
Therefore only disputes that fall within the ordinary jurisdiction of
arbitration or the Labour Court can be converted.
This
means, if two parties in an ordinary employment dispute (e.g. unfair
dismissal and benefits) reach a written settlement, the
CCMA and/or
empowered Councils can convert that settlement into an arbitration
award under section 142A.
But if the
dispute arises in an essential service (e.g. nurses in a public
hospital striking over working hours), even if the parties
sign a
settlement agreement the Commissioner cannot convert it into an
arbitration award, under section 142A. The dispute must
follow the
special procedures in sections 74 and 75.
[59]
This means that, while the commissioner is barred from issuing an
arbitration award under section 142A, the parties’
agreement
may still conclude in a valid settlement, which can be made an order
of court and enforced through the normal Labour
Court section 158(c)
procedures.
[20]
[60]
In this case, it is evident that the Commissioner, despite these
stipulations, acted as though empowered to convert the
agreement.
However, she lacked authority to do so. The statutory design draws a
clear boundary. Essential service disputes are
excluded from section
142A, and any attempt to bypass the procedures in sections 74 and 75
results in an
ultra vires
decision.
Declaration
[61]
The abovementioned facts clearly establish that the Commissioner
lacked authority on multiple fronts. The critical question
is –
what is the effect of an award made without authority? The answer is
firmly rooted in principle, because authority is
the essential
foundation upon which judicial and quasi judicial influence
rests. Without such, any order no matter how carefully
reasoned,
well-intentioned, or procedurally regular cannot stand. It is a
nullity in law. The defect is not even curable, by consent
of the
parties, because authority is conferred by statute or other legal
instrument.
[62]
The courts have consistently affirmed this position. In
Eskom
v Marshall and Others
[21]
the Labour Court concluded that a tribunal which issues an order
without jurisdiction acts
ultra
vires
,
and the result is that the order is a nullity.
[63]
This principle has deep roots in South African jurisprudence. As far
back as 1926, the Appellate Division in
Schierhout
v Minister of Justice
[22]
held that a thing done contrary to the direct prohibition of the law
is
void
and of no effect. This position remains authoritative, emphasizing
that acts performed in contravention of statutory limits are
legally
ineffectual.
[64]
Similarly, in
Vidavsky
v Body Corporate of Sunhill Villas
[23]
the Supreme Court of Appeal unanimously held that where there is an
absence of authority, the resultant award is null and void
and
incapable of producing legal consequences.
[65]
In sum, these authorities demonstrates that where a CCMA or
Bargaining Council commissioner acts outside the powers conferred
by
the LRA, the resultant award is a nullity, and incapable of elevation
to lawful and enforceable status.
[66]
In the circumstances, the Commissioner’s purported award is
void
ab initio
since
she lacked lawful authority to issue it. To elevate such an award to
the status of a court order would undermine the integrity
of section
142A and erode the principle that only valid, enforceable awards may
be converted into court orders. Otherwise it would
permit
commissioners to act beyond the limits of their statutory mandate,
thereby compromising both the rule of law and the legislative
design.
[67]  In the result,
the employer’s application has merit.
Costs
[68]  Regarding the
issue of costs, I am persuaded that the contemplation underlying
section 165 of the LRA would not be advanced
were I to order the
employees to bear the costs of this litigation. The employment
relationship is, by its nature, ongoing, and
the imposition of costs
against employees could preventable undermine same.
[69]  Furthermore,
my view is that the true responsibility for the costs does not lay
with the parties. However, I will refrain
from making any
pronouncement in that regard, as it falls outside the scope of the
present determination.
[70]  Accordingly,
and in keeping with the broader interests of justice, equity and
fairness, I deem it appropriate to make
no order as to costs.
Conclusion
[71]
In conclusion it must be emphasised that the manner in which the
proceedings unfolded means that the Bargaining Council
never in fact
dealt with the employees’ (section 74(4)) dispute. The
employees accordingly have the right to re approach
the
Bargaining Council to have their matter properly attended to. For
this reason, I have not engaged with all the issues raised
by Mr.
Kroon, SC since those may well be ventilated afresh should the
employees decide to revert to the Bargaining Council, where
a
commissioner will be able to address them in due course.
[72]  Another remark
I make is that I deliberately refer to section 74(4) (in paragraph 71
above) as opposed to section 142A
because, for all the reasons stated
above, I hold the view that section 142A route was improperly invoked
and should never been
pursued by the Commissioner. My above-mentioned
conclusions however, remain valid and are intended to stand in the
event that I
am found to be incorrect in this regard.
[73]  A final
consideration is that this Court retains a discretion when asked to
convert an arbitration award into an order
of court. Such discretion
ensures that the Court does not simply rubber-stamp an award, but
first satisfies itself that the award
is legally enforceable.
[74]  Without this
safeguard, the law would expose an affected party to absurd
consequences. To illustrate, if a CCMA or Bargaining
Council
Commissioner were to purport to grant a divorce decree and a
maintenance order for minor children, the employees’
reasoning
would suggest that (provided the award was clear and unchallenged) it
must automatically made an order of court. That
conclusion is plainly
untenable.
[75]
Accordingly and for all the reasons advanced above, the following
order is made:
Order
1.
The arbitration award issued by the South African Local Government
Bargaining Council, under case number ECD072001, dated
31 May 2012,
is a nullity and unenforceable.
2.
There is no order as to costs.
Mark
Thys
Acting
Judge of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Mr.
PN Kroon.
Instructed
by
McWilliams
& Elliot Inc.
For
the Respondent:
Mr.
S Nzuzo.
Instructed
by
Diko
Attorneys.
[1]
Act
66 of 1995, as amended.
[2]
Section
74(4) ... stipulates that a party engaged in an essential service
may refer the dispute to the CCMA or applicable Bargaining
Council,
for conciliation. (4) If the dispute remains unresolved, any party
to the dispute may request that the dispute be resolved
through
arbitration
by the council or commission.
[3]
[2011]
5 BLLR 490
(LC), at para 16.
[4]
Section
158(1)(c) reads: The Labour Court may – make any arbitration
award ... an order of the Court.
[5]
Section
158(1)(iv) stipulates that (1) The Labour Court may – (a) make
... (iv) a declaratory order.
[6]
The
employees
rely on section 158(1)(c), while the employer invokes section
158(a)(iv).
[7]
Section
1(d)(iv) of the LRA.
[8]
(P22/2022)
[2023] LC (09 February 2023).
[9]
(2008)
29 ILJ 624 (LC).
[10]
(2009)
30 ILJ 301 (LC), at paragraph 42.
[11]
(2025)
46 ILJ 2587 (LAC).
[12]
[2024]
10 BLLR 1060 (LC).
[13]
Examples
of “any other law”, in this context, would be a statute
outside the Labour Relations Act that nonetheless
confers
jurisdiction on the Labour Court. For instance: Basic Conditions of
Employment Act, section 77(3), gives the Labour Court
concurrent
jurisdiction with the civil courts to determine any matter
concerning a contract of employment. Employment Equity
Act, section
50(1): empowers the Labour Court to make any appropriate order,
including compensation, in disputes about unfair
discrimination.
[14]
(2000)
21 ILJ 1634 (LC).
[15]
(29662/2021)
[2022] ZAGPPHC 621 (16 August 2022).
[16]
Butler
& Finsen, Arbitration in South Africa: Law and Practice (Juta,
1993).
[17]
Unreported
judgment of the High Court, Eastern Cape Division (Case No.
119/2001), 31 January 2002.
[18]
Nomcebo
Nothule Nkwanyana and Emazulwini Production and Projects (Pty) Ltd v
Open Mic Productions (Pty) Ltd and Africori SA (Pty)
Ltd [2025]
ZAGPPHC 422 (9 May 2025).
[19]
See
Herbstein & Van Winsen,
The
Civil Practice of the Supreme Court of South Africa
(4th ed.) at 1054, together with the authorities cited therein.
[20]
Section
158(1)(c) reads: The Labour Court may – make any settlement
agreement ... an order of the Court.
[21]
(2003)
1 BLLR 12 (LC).
[22]
1926
AD 99.
[23]
[2005]
4 All SA 201
(SCA);
2005 (5) SA 200
(SCA).