THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2025-227946
In the matter between:
TOPS ARCADIA Applicant
And
NATIONAL ENTERPRISES WORKERS UNION
YA AFRICA (NEWU-YA) First Respondent
LENAH KEKANA Second Respondent
KUHLE SIGONYA Third Respondent
VUYOKAZI YAM Fourth Respondent
SISANDA MAGIBI Fifth Respondent
NOLITA MDLANKOMO Sixth Respondent
MARY SUZAN MOLEKO Seventh Respondent
DIEKETSENG SOBI Eighth Respondent
Heard: 10 December 2025
Supplementary submissions received on: 19 January 2026
Delivered: 13 February 2026 (This judgment was handed down electronically
by emailing a copy to the parties. 13 February 2026 is deemed to be the date of
delivery of this judgment).
(1) Reportable: Yes/NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
KROON AJ
[1] On 10 December 2025, the Court had to consider whether to confirm or
discharge a Rule Nisi granted as a matter of urgency on 24 November 2025
by Harvey J. The Court mero motu raised the question of jurisdi ction. The
Applicant, at the invitation of the Court, requested until 19 January 2026 to file
supplementary submissions on the question of jurisdiction.
[2] Having considered the submissions , which were duly filed on 19 January
2026, the Court, on 2 February 2026, issued an order which read as follows:
“1. The rule is discharged.
2. There is no order as to costs.”
[3] A request for reasons was brought to my attention on 10 February 2026.
[4] This application has two features. The first is that it was brought ex parte. The
second is that it metamorphosised from one seeking , inter alia , to interdict
unprotected industrial action into one which culminated in the Court granting,
as it were, common law relief which could have been granted by any civil
court. Shorn of all elaboration, the order granted restrained the S econd to
Eighth Respondents (the Respondents), persons who, it was common cause,
were no longer employees of the Applicant at the date of the hearing, from
interfering with the business of the Applicant.
1
1 Although not canvassed during the hearing, it seems that the reliance on the provisions in the
Labour Relations Act No. 66 of 1995 (the LRA) were abandoned at the first hearing because either
the Respondents had been dismissed by then or because the Applicant realised that it was
impermissible to obtain an interdict in respect of unprotected industrial action on an ex parte basis
(see below).
3
[5] The order read as follows:
“1. Leave is granted for the matter to be heard as a matter of urgency.
2. A rule nisi is hereby issued calling upon the respondents to appear
before this Court at 10h00 on 10 December 2025, or as soon
thereafter as the matter may be heard, to show cause why the
following Order should not be made final.
2.1 The Respondents are interdicted and restrained from:
2.1.1 unlawfully interfering with or obstructing the conduct of
the business of the applicant at its premises situated at
3[…] c/o P[…] & W[…] Street, Unit […] A[…] P[…],
G[…], A […] (“the premises”)
2.1.2 preventing the applicant from accessing and
possessing the premises; and
2.1.3 causing any other person to engage in the unlawful
conduct set out in paragraphs 2.1.1 and 2.1.2 above.”
[6] As mentioned, the Court, mero motu, raised the question of jurisdiction. It also
raised, mero motu, concerns regarding service . As to service, the Court order
was emailed to the Respondents, but there was no compliance with the
requirement to obtain confirmation that the email was received by those who
stood to be affected by the Court’s judgment or order. After some debate, it
was agreed that the Applicant would be allowed to make further submissions
on these two questions.
[7] It was against this backdrop that the Court issued a Directive on 10 December
2025. The Directive, as authored by my secretary on my behalf , read in part
as follows:
“RE: EX PARTE TOPS ARCADIA V NATIONAL ENTERPRISE
WORKERS UNION – CASE NO. 2025-227946
…
4
[2] In the light of a question mero motu raised by the Court about the
jurisdiction of the Labour Court to grant the relief sought the following
Directive is issued.
[3] The Court requests further submissions on the question of jurisdiction
as, unlike, for example Section 68 of the Labour Relations Act of 1995
(LRA), there is no provision in the LRA granting jurisdiction to interdict
unlawful conduct generally.
[4] In this regard it was the Court’s view that Section 158(1)(i) and (ii)
concern powers to grant a remedy and are not jurisdiction conferring.
[5] As to developments when it comes to the jurisdiction of the LRA, see
Cibane and another v Premier of the Province of KwaZulu-Natal and
another.
2
[6] Even if the Labour Court had jurisdiction at the date of the issuance of
the Rule Nisi, how does the fact that the persons in question are no
longer employees affect the situation and, in particular, does it or does
it not render the application moot?
[7] Representations should also be made regarding the concerns raised,
again mero motu by the Court, about the fact that service was not in
terms of the rules and whether it is necessary for an application to be
made in terms of Rule 9(1)(c).
Time Periods
[8] As we are in the recess, there is no critical urgency and Acting Justice
Kroon asks only that notify me as to by when you will be able to
comply with the Directive.”
The law on jurisdiction
[8] Before dealing with the submissions made on behalf of the Applicant, the
Court briefly turns to the legal principles that have crystallised over the years
delineating the ambit and scope of the jurisdiction of the Labour Court . The
following was said by Landman J more than a quarter of a century ago:
2 [2025] 10 BLLR 1004 (LAC)
5
“This Court is a creature of statute, albeit a superior court having the
status and standing of a High Court with the, statutorily conferred,
inherent powers of a High Court in relation to matters within its
jurisdiction. It does not have an all -embracing jurisdiction over the
employer/employee relationship. Its jurisdiction is a sporadic one,
interspersed in the life cycle of employment. Not only that but the
moment of intervention is regulated by statute…” 3 (own emphasis)
[9] Also a quarter of a century ago, t he Constitutional Court in Fredericks v MEC
for Education and Training, Eastern Cape and Others4 commented that:
“As there is no general jurisdiction afforded to the Labour Court in
employment matters, the jurisdiction of the High Court is not ousted by section
157(1) simply because a dispute is one that falls within the overall sphere of
employment relations. The High Court’s jurisdiction will only ousted in respect
of matters that ‘ are to be determined’ by the Labour Court in terms of the
Act”. (own underlining)
[10] In Merafong City Local Municipality v South African Municipality Workers
Union and Another ,5 the Labour Appeal Court explained that the provision
giving the Labour Court the power to grant an interdict was not in and of itself
jurisdiction conferring.
[11] I quote:
“[33] Section 158(1)(a) is clearly an example of the powers the Labour Court
may exercise in respect of a matter falling within its jurisdiction, and it
does not purport to grant the Labour Court jurisdiction, in the sense of
the power to hear and determine the matter in the first place. ...” (own
emphasis)
3 Moropane v Gilbeys Distillers and Vintners (Pty) Ltd & Another [1998] 19 ILJ 638 (LC) at F-G
4 (2002) 33 ILJ 81(CC) at [40]
5 [2016] 8 BLLR 758 (LAC); (2016) 37 (ILJ) 1857 (LAC)
6
[12] In Strydom v Arcelormittal South Africa,6 Prinsloo J explained as follows:
“[44] Section 157 (1) provides that subject to the Constitution and section 173, and
except where the LRA provides otherwise, the Court has exclusive jurisdiction
in respect of all matters that elsewhere in terms of the LRA or any other law
are to be determined by this Court. What this requires is that a party referring
a dispute to this Court for adjudication must necessarily point to a provision of
the LRA or some other law that confers jurisdiction on this Court to adjudicate
the dispute.
...
[46] It is thus incumbent on an applicant referring a matter to this Court for
adjudication, to identify the provision in the LRA, or any other law, which
confers jurisdiction on this Court to entertain the claim. As was confirmed
in Shezi:
What this requires is that a party referring a dispute to this court for
adjudication must necessarily point to a provision of the LRA or some other
law that confers jurisdiction on this court to adjudicate the dispute. It is thus
incumbent on an applicant referring a matter to this court for adjudication to
identify the provision in the LRA, or any other law, which confers
jurisdiction on this court to entertain the claim . Jurisdiction, of course, is to
be determined strictly on the basis of the applicant’s pleadings; the merits
of the claim are not material at this point. What is required is a
determination of the legal basis for the claim, and then an assessment of
whether the court has jurisdiction over it.”
[13] In Cibane and Another v Premier of Province of Kwazulu- Natal,7 the Labour
Appeal Court discussed the interpretation of Booysen v Minister of Safety and
Security and others,8 commenting as follows:
6 (2024) 45 ILJ 931 (LC)
7 [2025] 10 BLLR 1004 (LAC); (2025) 46 ILJ 2587 (LAC)
8 [2010] ZALAC 21; [2011] 1 BLLR 83 (LAC) ; (2011) 32 ILJ 112 (LAC)
7
“[21] Without making any finding on the merits, this Court found that the
Labour Court has jurisdiction to interdict any unfair conduct, including
disciplinary action, subject only to exceptionality, a matter left to the
discretion of the Labour Court. The order granted was that “The
Labour Court does have jurisdiction to grant appropriate relief in
relation to pending disciplinary hearings”.
[22] This ruling has been interpreted to mean that the Labour Court has the
jurisdiction to interdict or otherwise intervene in incomplete disciplinary
proceedings, limited only by the consideration of exceptionality. The
implication is that the Labour Court may exercise powers over matters
that, in terms of the LRA, are to be determined by arbitration, in
particular, the fairness of internal proceedings relating to alleged
misconduct or incapacity… ” (own emphasis)
[14] The Court corrected this view and at paragraph 27 held as follows:
“In the absence of any statutory provision conferring jurisdiction on the
Labour Court both in respect of employer conduct alleged to be unlawful
and in employment-related matters generally, there can thus be no
general rule, as the judgment in Booysen might be construed, to the
effect that the Labour Court has jurisdiction to intervene in medias res to
restrain any alleged illegalities, irregularities or unfairness in incomplete
disciplinary proceedings.” (own emphasis)
[15] At paragraph 33 it concluded:
“In summary: to the extent that Booysen has been interpreted to
establish a general rule, qualified only by exceptionality, that the
Labour Court has jurisdiction to intervene in uncompleted disciplinary
proceedings, this is not an interpretation that can be sustained by
section 157(1) of the LRA. As with every matter that serves before the
Labour Court, jurisdiction is a matter to be determined in every case by
reference to the pleadings and an enabling statutory provision, in the
reference to the pleadings and an enabling statutory provision, in the
form of the LRA or other jurisdiction conferring statute, that extends
8
jurisdiction to the Court to adjudicate the dispute disclosed by the
pleadings.” (Own emphasis)
[16] In Wheatley v Commission for Conciliation, Mediation and Arbitration and
Others,9 the Court recently commented as follows:
“[22] .... In Labour Court Manual by Prinsloo and Van Niekerk,10 the learned
authors explain that jurisdiction cannot be cheerfully assumed outside of the
contours of the LRA or other legislation which vests the Labour Court with
jurisdiction, emphasising that the power to grant an interdict is not, in itself,
jurisdiction conferring:
“Parties should also be cautious when relying on s 158(1) of the LRA
to establish jurisdiction; it describes the LC’s powers, as opposed to
its jurisdiction. so, for example, the fact that the LC has the power in
terms of s 158(1)(a)(ii) to grant an interdict does not mean that an
interdict can be sought in respect of any dispute – the applicant must
always identify the cause of action by reference to some statutory
provision that confers jurisdiction on the court.”
Analysis of the submissions made on behalf of the Applicant
Content of the Applicant’s submissions
[17] It is apposite to quote from t he “APPLICANT’S ANSWER TO DIRECTIVE
ISSUED ON 10 DECEMBER 2025”
11 furnished on 19 January 2026:
“[3] This answer is provided exclusively to answer the questions of the
learned judge as per the directive provided to the applicant attorneys on 10
December 2025.
BASIS OF THE APPLICATION
4. Originally when the application was launched it was seemingly done on
the basis of stopping an unprotected and illegal industrial action since the
9 (2025/231674) [2026] ZALCD 1 (13 January 2026)
10 2024, Juta and Company (Pty) Ltd, South Africa, page 7
11 The submissions were unsigned and it is unclear who authored them.
9
respondent, constituting a union and its members were engaging in strike
action without complying with the mandatory procedures under the Labour
Relations Act 66 of 1995.
5. The original hearing of the matter resulted in an order being granted
which was not necessarily in line with the relief sought completely, as it
interdicted unlawful conduct generally instead. The interim order was
nonetheless carefully crafted by this Honourable Court to address the core
unlawful conduct without overreach and many prayers in the Notice of Motion
were not entertained.
6. The effect of the amended order is that the conduct interdicted no
longer pertains to a strike but rather conduct affecting the employees of the
applicant.
JURISDICTION TO ENTERTAIN THE MATTER
7. It is true that the order which was granted does not pertain to a strike
action, however when the application was launched it did in fact pertain
thereto.
8. The basis of founding jurisdiction in the application was that the second
to eight respondents were employees at the time, and the first respondent
was and remains a union involved at the applicant’s employment
relationships.
9. A further ground for founding jurisdiction was that the conduct does in
fact involve the protection of the employees remaining in the employ of the
applicant.
10. Despite extensive research in attempt to answer the court’s directive on
the question of jurisdiction it appears that there is no hard and fast rule or
case law dealing with when jurisdiction is founded or extinguished.
11. The court in T.J.S v M.N.M
12 with reliance on Thermo Radiant Oven
Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd,13 the court stated:
‘[18] The time for determining the jurisdiction of the Court to entertain an
action, is the time of the commencement of the action’.
12. Whether a court can subsequently lose jurisdiction appears to not be
likely, given that jurisdiction is determined at the beginning, if a court has
likely, given that jurisdiction is determined at the beginning, if a court has
jurisdiction over the cause and over the parties, then when the matter finally,
12 (2024/147933) [2024] ZAWHC 432 (24 December 2024)
13 1969 (2) SA 295 (A) at 310 D – E
10
usually after years, goes to court, the court would still have jurisdiction even if
the parties moved to another jurisdiction or the circumstances changed.
13. It is true that the Labour Court only has jurisdiction over matters which it
obtains jurisdiction to through the Labour Relations Act, and it would appear
in this matter that when the application was launched the court did have
jurisdiction and jurisdiction cannot be mooted unless the cause of action itself
becomes moot, and given the relief is phrased to stop future conduct it is still
very much a live issue.
SERVICE TO BE PROPER
14. In the interim order granted in this matter, under prayer 4 the applicant
was ordered to serve the application as follows:
‘The applicant must serve this Order, together with the founding papers,
on the respondents by no later than 17h00 on Wednesday 26
November 2025 and must file a service affidavit with the Court as
prescribed in the Rules.’
15. The manner of service was not prescribed and as such it was service as
directed by a court with the intention of ensuring notice of the proceedings,
this took place according to the affidavit by Ms Leandra Diniz as explained in
her service affidavit uploaded on Caselines under Section 06-01 to 06-20.
16. It would accordingly be our submission that no application is required to
prescribe how service was to take place, as the service did in fact take place
as required by the interim order.”
Analysis of the Applicant’s submissions
[18] When it comes to the submissions on jurisdiction, stripped of all embroidery,
the Applicant says that the Labour Court has jurisdiction because:
18.1 The cause of action concerns unlawfulness generally.
18.2 The Applicant initially advanced a case alleging unprotected industrial
action.
18.3 When the Rule Nisi was granted, the Court assumed jurisdiction.
11
I deal with each contention below.
[19] As to the first contention, r evealingly, at paragraph five of the submissions,
the author admits that the relief granted was unconnected from the alleged
unprotected industrial action and that “…it interdicted unlawful conduct
generally instead” (own emphasis) . Our jurisprudence is now replete with
case law holding that the Labour Court lacks jurisdiction to interdict unlawful
conduct generally. The submission made was, in my view, fatal to any case
which the Applicant could have made in respect of jurisdiction.
[20] As to the second ground contained in paragraphs seven to nine of the
submissions, the impression which is gained is that the Applicant wishes to
assert a claim to jurisdiction based on a cause of action and relief which ,
although foreshadowed in the application, was abandoned when the matter
was initially heard before Harvey J . This is im permissible. The Applicant,
having disavowed any contention that it was its case that the industrial action
was unprotected, is not permitted to do a volte face on the return day , more
so without any warning to the Respondents.
[21] The correct position is that the Applicant is bound by the terms of the Rule
Nisi and it is disingenuous, having abandoned reliance on the provisions of
the LRA relating unprotected industrial action, to then seek to resurrect these
contentions on the return day. The notion of reverting back to a claim based
on the existence of unprotected industrial action is also nonsensical for the
obvious reason that the Respondents are no longer employees and
accordingly they can no longer strike. T hus, any issue regarding alleged
unprotected industrial action is now plainly moot.
[22] There is another insurmountable hurdle facing the Applicant in this regard. If
the Court had issued a Rule Nisi based on the alleged unprotected industrial
action (it did not) , it would have been a nullity and of no force or effect . The
action (it did not) , it would have been a nullity and of no force or effect . The
reason is that it is not permissible to obtai n, ex parte, an order interdicting a
strike. This much is apparent from section 68 of the LRA which provides that:
12
“68. Strike or lock-out not in compliance with this Act
…
(2) The Labour Court may not grant any order in terms of subsection (1)(a)
unless 48 hours’ notice of the application has been given to the respondent:
However, the Court may permit a shorter period of notice if –
(a) the applicant has given written notice to the respondent of the applicant’s
intention to apply for the granting of an order;
(b) the respondent has been given a reasonable opportunity to be heard
before a decision concerning that application is taken; and
(c) the applicant has shown good cause why a period shorter than 48 hours
should be permitted.”
[23] It is clear from the above quoted paragraph that, by necessary implication,
there is a prohibition against the granting of an interdict in respect of alleged
unprotected industrial action without notice or ex parte. Granting an ex parte
order when it comes to industrial action would amount to granting an order
contrary to a statutory prohibition . On this point, reference may be had to the
Constitutional Court decision of Cool Ideas 1186 CC v Hubbard and Another
14
in terms of which the seminal case of Schierhout was referenced and the
Court commented as follows:
“[53] The majority in the Supreme Court of Appeal refused to make the
arbitral award an order of court on the basis that to do so would amount
to sanctioning an illegality and would subvert the legitimate purpose of
the section by lending the court’s imprimatur to the very mischief which
the statute seeks to prevent. Our law has long recognised that any act
performed contrary to the direct and express prohibition of the law is
void and of no force and effect.15” (own emphasis)
[24] At paragraph nine, it is submitted that because persons who were affected by
the unlawful conduct may have included employees, this fact, in and of itself,
14 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC)
15 Schierhout v Minister of Justice 1926 AD 99 at 109. See also Hoisain v Town Clerk, Wynberg 1916
AD 236.
13
conferred jurisdiction on the Labour Court . It does not. The overwhelming
weight of authority holds that the opposite proposition is true, namely that the
mere fact that a dispute involves an employee does not give the Labour Court
jurisdiction, all the more so where the alleged wrong being committed is being
perpetrated by a third party . The Court notes further that, in this matter, the
lack of jurisdiction should have been obvious given that , at the date of the
hearing, when the Court was required to decide whether the order should be
made final, the Respondents were no longer employees of the A pplicant. The
Respondents had by that time, for all intents, become general members of the
public vis-à-vis the Applicant. To illustrate, if a gang of thugs go about robbing
a retail outlet and employees are affected by the robbery because, for
example, they are held up at gunpoint , should the retailer institute action
against the robbers, this would not constitute a labour matter solely because
some of the victims of the robbery were employees. To illustrate further, i f a
husband, in the throes of an acrimonious divorce, arrives at his wife’s
workplace with the intent of assaulting her , the Labour Court will have no
jurisdiction to grant a restraining order against him pursuant to an application
by the employer solely on the basis that the wife happens to be an employee
of the employer.
[25] In paragraph 10 of the submissions, the author states that there is no “ hard
and fast rule” or case law on when jurisdiction is founded or extinguished.
Again, thi s is not correct. Unlike the High Court, the Labour Court has no
overarching inherent jurisdiction. Jurisdiction must be conferred on it in terms
of the LRA or other legislation, such as the Basic Conditions of Employment
Act (BCEA) 75 of 1997 or the Protected Disclosures Act 26 of 2000. The “hard
and fast” rule is that the Labour Court cannot cheerfully assume jurisdiction in
and fast” rule is that the Labour Court cannot cheerfully assume jurisdiction in
a vacuum. Any jurisdiction assumed must have a basis in legislation.
[26] The last submission, as contained in paragraphs 11 to 13 of the Applicant’s
submissions on jurisdiction, is the allegation that because the Rule Nisi was
granted, the Court assumed jurisdiction at that point and that it was not open
to the Court , on the return day , to revisit the issue of jurisdiction. Leaving
14
aside the fact that the question of jurisdiction was not determined, or even
raised, in front of Harvey J, this submission misunderstands the legal
significance of a Rule Nisi. A Rule Nisi is not a final order. It is provisional.
The doctrine of res judicata accordingly does not find application when it
comes to a Rule Nisi, nor would it when it comes to the interim interdict, which
is also not a final order . To illustrate, in one sense a Rule Nisi functions like a
judicial summons. It calls upon a person to appear before the Court. It sets a
date for that appearance. It provides an opportunity to oppose. It initiates an
adversarial process.
16
[27] In summary, after the relief initially sought in respect of the alleged
unprotected industrial action was abandoned, and one has regard to the
contents of the founding affidavit (which does not refer to any section in the
LRA save for the sections applying to strike action), the main complaint which
remains intact as pursued by the Applicant is that its right to freedom of
economic activity is being infringed by members of the public (the seven
Respondents). Such a cause of action has nothing to do with labour law, let
alone employment relations. The Labour Court is a specialist court
established to deal with labour matters. Judges of the Labour Court are
required to have knowledge, experience and expertise in labour law. It could
not have been the intention of the Legislature that the Labour Court would
have jurisdiction to restrain members of the public from interfering with the
business of a shop owner. The nature of such a dispute arises out of an
ordinary common law civil wrong, unconnected to the objects of and remedies
available in the LRA.
[28] Regarding service, it was stated that the manner of service “…was not
prescribed…” . Again, this is also not correct. It is clear from the order that the
service must comply with the Rules,
17 all the more so where an order has
service must comply with the Rules,
17 all the more so where an order has
16 A Rule Nisi does not, as commonly thought, affect or change the onus. The onus throughout
remains on an applicant. The applicant in question must satisfy the Court, on the return day, that it is
entitled to final relief. In that sense, the phrase “ show cause” may be perceived to be misleading in
the eyes of the layperson because the burden does not shift.
17 In this regard the order provided as follows:
15
been obtained ex parte. If the order had intended that service did not have to
comply with the Rules , then it would have said so. It did not. Notwithstanding
the obstacle of non- service having been raised with the Applicant, it elected
not to remedy the service defects, despite being afforded an opportunity to do
so.
[29] As a result, the application fails for two self -standing reasons. Firstly ,
procedural, because there was no proof of proper service on the Respondents
and the Applicant took a decision not to remedy the defective service.
Secondly, substantive, because the Applicant has not discharged the onus of
demonstrating that this Court has jurisdiction to grant the relief sought. As to
the latter point, as the substance of the Applicant’s complaint was ultimately
confined to an allegation that it had a right to conduct its business operations
free of unlawful interference by any person and that right had been breached
by third parties, it was then then a matter falling squarely within the jurisdiction
of the High Court , and that is the Court which the Applicant should have
approached.
_______________________
P N KROON
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr W Engelbrecht of ML Schoeman Attorneys18
“4. The applicant must serve this Order, together with the founding papers, on the respondents
by no later than 17h00 on Wednesday 26 November 2025 and must file a service affidavit
with the Court as prescribed in the Rules.” (own emphasis)
18 On 10 December 2025, after Mr Engelbrecht had appeared, the hearing was reconvened and Mr
X.T. Van Niekerk , as instructed by ML Schoeman Attorneys, briefly addressed the Court after a
request was made to reconvene the hearing.