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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2024-098847
In the matter between:
CITY OF EKURHULENI METROPOLITAN MUNICIPALITY Applicant
and
MECSU OBO MEMBERS First Respondent
INDEPENDENT MUNICIPAL AND ALLIED TRADE UNION Second Respondent
SOUTH AFRICAN MUNICIPAL WORKERS' UNION Third Respondent
Heard: 6 September 2024
Delivered: 26 February 2026
JUDGMENT
KUMALO, AJ
Introduction
[1] The applicant, the City of Ekurhuleni Metropolitan Municipality (the City ),
approached this Court on an urgent basis seeking interdictory relief against the
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
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first respondent, MECSU, together with its members and supporters. The City
contends that MECSU is engaging, or intends to engage, in conduct constituting
an unlawful and unprotected strike coupled with picketing activity and seeks an
order restraining such conduct.
[2] The City further seeks a declaratory order to the effect that the strike and
picketing action foreshadowed in MECSU’s correspondence dated 28 and 29
August 2024 is unprotected in terms of section 65 of the Labour Relations Act 1
(LRA). The application is opposed by MECSU.
Background
[3] The dispute arose after MECSU, on 29 August 2024, served a strike notice on
the City of Ekurhuleni, advising that its members intended to commence strike
action upon expiry of the prescribed seven- day notice period. The notice was
accompanied by proposed picketing rules. However, the notice did not indicate
with whom, if anyone, such rules had been agreed. The City averred that no
negotiations regarding picketing rules had been conducted with any of its
officials. The notice enumerated seven demands said to underpin the intended
industrial action, including issues relating to employee grading as well as claims
concerning overtime, allowances and insourcing. It further stated that the strike
and picketing would commence after the notice period and would continue
indefinitely until the demands were met. The City expressed concern that the
notice did not stipulate a definitive commencement date, which it regarded as
rendering the communication vague.
[4] The City contended that it remained amenable to engaging MECSU on the
issues raised and that it extended an invitation to do so. It is alleged, however,
that MECSU failed to engage constructively. The City further stated that the bulk
of the demands were already being addressed through internal processes or
were subject to extant statutory or collective bargaining mechanisms.
1 Act 66 of 1995, as amended.
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[5] Against that backdrop, the City professed not to understand why MECSU elected
to pursue what it characterised as unlawful and unprotected strike and picketing
action. In the City’s view, the grievances articulated by MECSU were either
premature, improperly escalated, already regulated by internal and statutory
dispute-resolution processes, or otherwise incapable of constituting a lawful
basis for strike action.
[6] By way of example, the demand for the upgrading of Traffic Wardens to
Constable posts had, according to the City, not previously been raised with it.
Any dispute pertaining to job functions or grading, it said, ought to be pursued
through the Bargaining Council, the internal grievance procedure, or an HR job
evaluation process.
[7] The City averred that the second demand, relating to a ceremonial pass -out
parade for Metro Police trainees , was in the process of being attended to, in that
the City was processing certificates for staff who had undergone training. It
argued that the union could not lawfully strike over a matter already receiving
attention through administrative processes. The third demand , namely the
implementation of a four -day-on, four-day-off shift cycle coupled with 40 hours’
overtime, was said to fall within collective bargaining at the Local Labour Forum
(LLF), where discussions were ongoing, and within the ambit of the Main
Collective Agreement, which expressly regulates working hours.
[8] The fourth demand concerned the encashment of annual leave days. The City
maintained that this issue was sub judice, being the subject of an ongoing review
application in this Court, and therefore not susceptible to lawful strike action. The
fifth demand related to alleged non- compliance with the acting allowance policy.
The City contended that this constituted an arbitrable unfair labour practice
dispute which ought to be referred to the Bargaining Council. It added that
budgetary constraints limited acting appointments to critical positions only.
budgetary constraints limited acting appointments to critical positions only.
[9] The sixth demand, seeking retrospective pay for firefighters , was, on the City’s
version, procedurally defective because affected employees had not lodged
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grievances nor utilised available internal dispute- resolution mechanisms. The
seventh demand, namely the insourcing of Security Guards and Cleaners, was,
according to the City, already the subject of formal Council processes. The City
referred to Council resolutions directing feasibility studies and the development of
funding models, and stated that progress reports had been presented, including
on 29 August 2024, with further updates scheduled. It emphasised that MECSU’s
allegation that the City was refusi ng to insource was incorrect, as the matter was
actively being processed through lawful Council channels.
[10] In sum, the City sought to demonstrate that MECSU had bypassed appropriate
dispute-resolution fora, declined to engage meaningfully with the City, and
nevertheless persisted with threatened industrial action notwithstanding that most
demands were already subject to ongoing internal, bargaining, or statutory
processes.
[11] The City further contended that MECSU’s right to strike was curtailed by section
65 of the LRA, principally because the issues raised were regulated by the Main
Collective Agreement, were capable of arbitration in the Bargaining Council, and
because many of MECSU’s members performed essential services and were
thus statutorily prohibited from striking. The City accordingly submitted that
MECSU was not entitled in law to embark upon the intended industrial action. It
maintained that it had established the requirements for the relief sought and
prayed for the interdict to be granted.
[12] MECSU’s version was that it initiated an internal grievance on 5 May 2024 and
thereafter referred a mutual interest dispute to the SALGBC on 9 May 2024.
Conciliation took place on 2 July 2024 and remained unresolved as at 2 August
2024. A ballot was held on 28 August 2024 at which a majority of members
supported the strike and adopted picketing rules. On 29 August 2024, MECSU
served the City with the formal seven-day strike notice together with the picketing
served the City with the formal seven-day strike notice together with the picketing
rules. The City thereafter invited MECSU to a mee ting scheduled for 31 August
2024, which ultimately convened on 2 September 2024. At that meeting, the City
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raised financial constraints, indicated that certain demands were being dealt with
at the LLF or in this Court, and undertook to investigate the upgrading of traffic
wardens and the alleged outstanding eight hours for firefighters, undertaking to
furnish written reports by 5 September 2024.
[13] MECSU asserted that, during the meeting, the City did not raise any concerns
regarding employees performing essential services or the validity of the picketing
rules. It further alleged that, while the meeting was still in progress, the City’s
attorneys transmitted a letter at 11h27 raising essential services considerations
and the absence of consultation on picketing rules, and demanding undertakings
failing which urgent interdictory relief would be sought. MECSU stated that it
nonetheless provided a writt en undertaking and expressed a willingness to
continue engaging. Notwithstanding this, the City proceeded to launch an urgent
application seeking both final and interim relief. On 4 September 2024, MECSU
requested that the City withdraw the application to enable further engagement on
outstanding issues, but the City refused and persisted with the litigation.
Submissions
[14] The City contended that it had no adequate alternative remedy other than
approaching this Court on an urgent basis, on the footing that any delay would
render the relief nugatory once the threatened strike commenced. It reiterated
that it had a clear right to be protected from disruption arising from unlawful
industrial action, particularly where, on its version, MECSU had threatened to
strike without meaningful engagement. The City averred that the union’s conduct
gave rise to a reasonable apprehension of harm , in that essential municipal
services could be compromised.
[15] The City maintained that an interdict constituted the only effective remedy and
that, absent immediate relief, it would suffer substantial operational prejudice. It
that, absent immediate relief, it would suffer substantial operational prejudice. It
accordingly sought a final interdict and, in the alternative, interim relief pending
proper engagement between the parties. The City further contended that even on
the test for interim relief , it satisfied the requisite elements , viz., a prima facie
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right, a well -grounded apprehension of irreparable harm, that the balance of
convenience favoured the granting of the interdict, and the absence of any
adequate alternative remedy.
[16] MECSU submitted that both the conciliation ruling and the certificate of outcome
issued on 2 August 2024 confirmed that the seven demands fall within the realm
of a mutual interest dispute. It argued that any objections the City wished to
advance, whether concerning locus standi, essential services implications, or the
role of the LLF, ought properly to have been raised before the Bargaining Council
rather than in these urgent proceedings. MECSU accused the Applicant of forum
shopping, pointing out that the Senior Commissioner had already rejected the
Applicant’s contentions regarding the nature of the demands during conciliation.
MECSU further contended that the Applicant abandoned engagement processes,
withdrew from negotiated discussions, and approached the Court prematurely
“out of panic”, particularly as no specific commencement date for the strike had
yet been set.
[17] MECSU further challenged the Applicant’s reliance on essential services
limitations, asserting that the City has no essential services agreement in place
and did not raise essential services concerns during prior engagements. The
union maintained that the City has delayed implementation of various Council
resolutions, including those relating to the insourcing of security and cleaning
personnel and the issuing of certificates to Metro Police trainees , while seeking
to blame the union for alleged disruptions. MECSU denied that the City faced any
irreparable harm, rejected the Applicant’s assertion of a clear right warranting an
interdict, and contended that the balance of convenience favoured the
continuation of a lawful, protected strike. MECSU argued that it complied fully
with all procedural requirements , conciliation, obtaining a certificate of non-
with all procedural requirements , conciliation, obtaining a certificate of non-
resolution, conducting a ballot, and issuing the requisite notice, and submitted
that the Applicant had alternative remedies through continued engagement rather
than urgent litigation. Accordingly, MECSU contended that the strike is protected
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and lawful, and that the Applicant has failed to establish grounds for interdictory
relief.
[18] MECSU also disputed the Applicant’s claim of a reasonable apprehension of
harm, asserting that the Applicant placed no factual foundation before the Court
to sustain such an allegation. It reiterated that it had complied with all statutory
preconditions for a protected strike. MECSU added that the City , in its own
version, conceded that the right it seeks to protect is uncertain, whereas
MECSU’s members enjoy the constitutionally entrenched right to strike, which
cannot be limited on arbitrary or speculativ e grounds. The union further pointed
out that adequate notice of the intended strike had been furnished and that the
City had ample opportunity to engage before resorting to litigation. It concluded
that the Applicant had not established the requirements for either final or interim
interdictory relief and that the urgent application was unwarranted.
[19] MECSU emphasised that section 64(1) of the LRA confers the right to strike once
a dispute has been referred to the Bargaining Council or CCMA and either a
certificate of non-resolution has been issued or 30 days have elapsed. It argued
that section 65 does not limit the right to strike merely because picketing rules
have not yet been finalised, and that section 69 expressly empowers a registered
trade union to authorise a picket in support of a protected strike. According to
MECSU, the absence of finalised picketing rules does not render a strike
unlawful where a valid strike certificate has been issued. With reference to the
requirement of a “reasonable apprehension of injury”, MECSU submitted that the
test is objective and must be supported by factual evidence establishing that
harm is reasonably foreseeable.
[20] MECSU reiterated the requirements for a final interdict , namely, a clear right, an
actual or reasonably apprehended injury, and the absence of an adequate
actual or reasonably apprehended injury, and the absence of an adequate
alternative remedy, and argued that the Applicant failed to meet any of these
requirements. It is submitted that the Applicant had not demonstrated any
unlawful conduct on the part of MECSU, nor a clear right that required protection.
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MECSU further submitted that the Applicant had not shown, on a balance of
probabilities, that a protected strike would cause harm or that harm was
reasonably foreseeable. Accordingly, it argued that the Applicant had not
provided a factual basis capable of satisfying the threshold for interdictory relief.
[21] The City persisted in its assertion that the matter was urgent and denied that the
urgency was self-created. It contended that MECSU’s communications of 28 and
29 August 2024 provided clear notice that an unprotected and unlawful strike and
picketing would commence within seven days, thereby creating an immediate
threat that could not be resolved through ordinary Court processes. The City
maintained that it had no option but to approach the Court urgently. It argued
further that the matter met the established legal requirements for urgency,
particularly because it would not obtain substantial redress at a later stage, given
the imminent strike . The City rejected MECSU’s assertion that the issues
properly belong within bargaining council processes, submitting instead that the
threatened unprotected strike, purportedly involving employees performing
essential services, justified urgent judicial intervention.
Discussion
Urgency
[22] The City relied on the seven- day strike notice served on 29 August 2024 and
contended that, absent urgent relief, it would not obtain substantial redress,
particularly given its assertion that the threatened action implicates essential
municipal functions. MECSU disputes urgency, contending that the City was
aware of the underlying demands since at least May 2024 through internal
grievance and SALGBC processes, and that the City received the relevant
conciliation ruling and certificate in early August 2024 but took no steps to
challenge them. MECSU argues that the City thereby created urgency by delay
and by litigating before the agreed reporting date of 5 September 2024, arising
from the parties’ engagement meeting.
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[23] In assessing urgency, the Court must consider not only imminence but also
whether substantial redress can be obtained in due course. Although the City had
prior knowledge of the broader dispute, the seven- day notice constituted a
concrete escalation which, on the City’s version, threatened immediate
operational disruption if the strike commenced. Importantly, the relief sought is
directed at preventing the commencement of strike action; once strike action
begins, subsequent relief risks being academic. On that basis, and mindful that
urgency is fact -specific, the Court is satisfied that the matter warrants enrolment
on the urgent roll. As to s 68(2), the City explained that the truncated timeframes
made strict compliance impractical and that notice of its intention to approach the
Court was given. In the circumstances, condonation for non- compliance with s
68(2) and the Rules is granted.
Merits
[24] The constitutional right to strike in s 23(2)(c) is undeniably a fundamental right,
and the starting point of the enquiry is that it carries no internal textual limitation.
As the Constitutional Court
2 held in Moloto that a statute purporting to regulate or
limit the right must be interpreted in the least restrictive manner that remains
consistent with the statutory text. However, it is equally settled that the right to
strike is not absolute. It may be limited by a “law of general application” within the
meaning of s ection 36 of the Constitution, provided that such limitation is
reasonable and justifiable in an open and democratic society.
[25] It is well-established that section 65 of the LRA constitutes such a law of general
application. It is directed not at depriving workers of the right to strike, but at
channelling certain categories of disputes into specific dispute‑ resolution
mechanisms, arbitration or adjudication, where the Legislature has determined
that industrial action is either inappropriate or potentially harmful to broader
that industrial action is either inappropriate or potentially harmful to broader
societal interests. The purpose of section 65 is to protect the integrity of the LRA’s
structured dispute‑ resolution system and to ensure that protected strike action
2 South African Transport and Allied Workers Union (SATAWU) and Others v Moloto NO and Another
[2012] 12 BLLR 1193 (CC) at para 52.
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remains confined to matters that properly fall within the terrain of collective
bargaining.
[26] In applying the provisions of section 36 of the Constitution, three factors are
particularly important in this case First, the nature of the right , although a strike
action is fundamental, the LRA does not contemplate a right to strike over
matters that the Act itself designates for arbitration or that fall outside the
employment relationship altogether. Second, the purpose and importance of the
limitation. Which is, prohibiting strikes over arbitrable disputes is necessary to
prevent the circumvention of binding statutory processes, to ensure orderly
labour relations, and to avoid destabilising strikes over issues the law declares to
be rights disputes. Third, the availability of less restrictive means, employees
retain the right to pursue these disputes through grievance procedures,
bargaining council arbitration, or this Court adjudication, depending on the nature
of the dispute. These mechanisms are not only less restrictive than a blanket
prohibition but expressly provided to give effect to rights conferred elsewhere in
the LRA.
[27] Against that backdrop, the limitations imposed by s 65(1)( a), (c) and ( d) do not
extinguish MECSU’s right to strike; they channel it appropriately. Where the
dispute is arbitrable, as i n first, second, fourth, fifth and sixth demands , the
limitation is minimal, and employees may still vindicate their rights through a
specialised statutory forum designed to afford expeditious and inexpensive relief.
Where the issue is regulated by a collective agreement, i.e. third demand, the
limitation serves the constitut ionally endorsed principle of majoritarianism, which
promotes orderly bargaining. Lastly, where the issue falls entirely outside labour
relations, i.e. seventh demand, the limitation merely recognises that the right to
strike does not extend to matters that are not matters of mutual interest.
strike does not extend to matters that are not matters of mutual interest.
[28] Accordingly, any limitation imposed by s ection 65 on the right to strike in respect
of these demands is reasonable and justifiable under the provisions of section 36
of the Constitution , and no constitutionally‑permissible interpretation of the LRA
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can expand the right to strike to matters statute has expressly placed outside the
scope of protected industrial action. Section 1(a) of the LRA makes clear that one
of the primary purposes of the Act is to give effect to, and regulate, the
fundamental labour rights guaranteed in section 23 of the Constitution. In this
respect, the LRA affirms and protects the constitutional right to strike by
insulating participants in a protected strike from adverse legal consequences. At
the same time, the Act imposes procedural requirements that must be met for a
strike to acquire protected status, and it restricts the scope of protected strikes to
matters that do not fall within dispute- resolution mechanisms, such as arbitration
or adjudication, provided for elsewhere in the Act.
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[29] MECSU’s right to strike is, however, subject to limitation by a law of general
application to the extent that such limitation is reasonable and justifiable in an
open and democratic society founded on human dignity, equality and freedom.
This requires consideration of various factors, including whether less restrictive
means exist to achieve the purpose of the limitation.
[30] In that regard, t he City argues that section 65(1)( a), (c) and ( d) of the LRA
constitutes such a law of general application, and that it reasonably and
justifiably limits the exercise of the contemplated right. In particular, the City
contends that: ( a) MECSU is bound by a collective agreement that precludes
strike action on the issues raised; (c) the dispute is one capable of being referred
to arbitration; and (d) the employees involved perform essential services.
[31] It is trite that, where final relief is sought on affidavit and disputes of fact arise,
the Court must apply the Plascon –Evans rule. In such circumstances, final relief
may be granted only if the facts stated by the applicant, together with the facts
admitted by the respondent, justify that relief; and where material disputes of fact
admitted by the respondent, justify that relief; and where material disputes of fact
exist, the respondent’s version must generally prevail unless it is so far ‑fetched,
clearly untenable or implausible that it may be rejected on the papers. This
approach is reinforced by the principle that a genuine dispute of fact exists only
3 Ceramic Industries Ltd t/a Betta Sanitaryware & another v NCBAWU & others [1997] 6 BLLR 697 (LAC)
at para 700.
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where the party raising it has seriously and unambiguously engaged the facts
said to be disputed; bare denials are ordinarily insufficient where the disputing
party must necessarily possess the relevant knowledge and could provide a
meaningful answer.
[32] In this matter, disputes exist on, inter alia , whether urgency is self -created,
whether the City meaningfully engaged, whether essential -services concerns
were raised earlier, and whether certain demands were pending in other fora.
These disputes do not need to be resolved to decide the core question, namely,
whether section 65 bars strike action on the “true nature” of each demand, the
Court can decide the matter on legal characterisation. Where factual findings are
necessary, the Plascon–Evans approach is applied.
[33] Accordingly, in determining whether the contemplated strike is protected, and
whether the statutory limitations in section 65 apply, the Court proceeds based
on those facts that are common cause, those admitted, and, where disputes
exist, the version of MECSU unless that version is not bona fide or is clearly
untenable on the papers. The Court’s enquiry into the “true nature” of each
demand (the issue in dispute) is, however, a legal characterisation drawn from
the factual matrix, and it remains the Court’s duty to determine whether, on the
accepted facts, the issue falls within a substantive limitation in section 65
notwithstanding procedural compliance with section 64 of the LRA.
[34] Before turning to the application of section 65 to each of the demands, it is
necessary to address severability. A strike notice may contain multiple demands.
The fact that some demands may be impermissible (because they fall within a
limitation in section 65, or are otherwise not strikable) does not, without more,
extinguish the right to strike in pursuit of a permissible demand. Conversely, the
presence of a permissible demand does not immunise impermissible demands
presence of a permissible demand does not immunise impermissible demands
from interdiction. The proper approach is to determine, demand by demand,
whether the strike is protected in relation to each issue in dispute, and then to
tailor relief accordingly.
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[35] MECSU emphasised that a mutual -interest dispute was conciliated under
SALGBC auspices and that a certificate permitting strike action was issued; it
contends that the City’s arguments were raised there and rejected, and that the
present proceedings amount to forum shopping absent a review. The existence
of conciliation processes and a certificate is relevant to procedural compliance
under section 64 of the LRA.
[36] However, the Court’s enquiry does not end there. This is because section 65
creates substantive limitations on protected strike action; procedural compliance
cannot convert into a protected strike conduct which the LRA substantively
prohibits. The Court must therefore determine the “true nature” of each issue in
dispute and whether section 65 applies, notwithstanding a certificate. That said,
MECSU’s forum-shopping submission underscores the need for careful, demand-
specific characterisation and for tailored relief through severability, rather than
broad-brush interdiction where any demand is potentially strike- competent. A
court may interdict a strike action in respect of impermissible demands while
allowing protected strike action to proceed in respect of any severable
permissible demands.
[37] In the present matter, the Court has accordingly considered each of the seven
demands separately to determine whether it can ground protected strike action.
Where all demands fall within statutory prohibitions, severability does not alter
the outcome, but if any demand were strike ‑competent, the interdict should be
confined to those issues that are unprotected and should not extend to protected
strike action in respect of any permissible demand.
[38] The first demand relates to the upgrading of Traffic Wardens to Constable posts.
This ground implicates section 65(1)(c). Accordingly, the City bears the onus of
establishing that the dispute is one which the law requires to be resolved by
arbitration, thereby precluding strike action. The City submits that the matter had
arbitration, thereby precluding strike action. The City submits that the matter had
never previously been raised and should properly be pursued through the
grievance process, a job evaluation mechanism, or arbitration, rather than
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through industrial action. MECSU, on the other hand, maintains that the issue
formed part of the mutual interest dispute conciliated at the South African Local
Government Bargaining Council, and points out that the City undertook, during
the meeting of 2 September, to investigate the matter and report back, an
undertaking it says is inconsistent with the City’s claim of urgency.
[39] Beyond these competing averments, little has been set out to substantiate that
the demand falls within the category of disputes for which a referral to arbitration
is available under s 65(1)(c) of the LRA. The Labour Appeal Court 4 has made it
clear that a court must ascertain the true nature of the issue in dispute by
examining its substance rather than the label attached to it by either party. As
the Court has observed, the way a dispute is described is not determinative, as
such characterisation may mask the real issue requiring determination. This
enquiry is essential because section 65 of the LRA prohibits strike action where
the underlying dispute is one that the Act prescribes must be referred to
arbitration or adjudication. The “issue in dispute” for purposes of this analysis is
the demand, grievance or dispute that forms the subject matter of the intended
strike. The task of the Court is therefore to identify the actual nature of that issue
to determine whether the intended strike enjoys statutory protection.
[40] In this case, the City has, in my view, established that the issue is arbitrable.
Properly construed, the dispute advanced by MECSU constitutes an unfair labour
practice as contemplated in section 186(2)( a) of the LRA, in that it concerns
promotion or the conferral of benefits. As such, it is a dispute that may
competently be referred to arbitration. It follows that section 65(1)( c) of the LRA
operates to prohibit MECSU from embarking upon the contemplated strike in
respect of this demand.
[41] In opposing the interdict, MECSU relied on its compliance with section 64(1) of
[41] In opposing the interdict, MECSU relied on its compliance with section 64(1) of
the LRA. However, it is well established that section 65 delineates substantive
limitations on the right to strike or lockout, and these provisions must be read
4 Coin Security Group (Pty) Ltd v Adams & others [2000] 4 BLLR 371 (LAC) at para 17.
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conjunctively with section 64. The effect is that even full compliance with the
procedural requirements of section 64 cannot render lawful a strike that falls
within any of the prohibitions in section 65. Put differently, a strike certificate
cannot override the statutory limitations set out in section 65. Only a
constitutional challenge, alleging that the restrictions imposed by the LRA
unjustifiably limit the constitutional right to strike, could potentially displace those
statutory prohibitions.5
[42] It follows that MECSU’s compliance with the procedural requirements of section
64 is of no consequence in circumstances where it has been unable to rebut the
City’s contention that the issue is justiciable and therefore falls within the
statutory prohibition on strike action. Beyond denying that it is bound by the
collective agreement and pointing to review proceedings pending before this
Court, MECSU has not demonstrated how this dispute qualifies as a mutual
interest dispute that is not justiciable.
[43] Even accepting that a matter of mutual interest may encompass what is
conventionally understood as both a rights dispute and an interest dispute, since
either may legitimately form the basis of a union demand and may, in appropriate
circumstances, support protected strike action, no such interest dispute is
discernible from the facts.
6 On the contrary, the facts confirm the absence of an
interest dispute that would lawfully ground a protected strike.
[44] The second demand concerns the holding of a ceremonial pass ‑out parade and
the issuing of certificates to Metro Police trainees. The City stated that the
certificates are in the process of being finalised and that any dissatisfaction
regarding delays ought properly to be pursued through the grievance procedure
or as an unfair labour practice. MECSU, however, contended that the trainees
completed their qualifications in November 2023 and that the City’s failure to
completed their qualifications in November 2023 and that the City’s failure to
issue certificates for approximately ten months justifies resort to industrial action.
5 Vodacom (Pty) Ltd v CWU [2010] 8 BLLR 836 (LAC) at para 10.
6 UIS Analytical Services (Pty) Ltd v Independent Democratic Union of South Africa obo Members
[2025] 2 BLLR 207 (LC) at para 18.
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[45] In this instance as well, the right to strike is reasonably and justifiably limited by
section 65(1)(c) of the LRA. The dispute clearly falls within the ambit of section
186(2)(a), rendering it justiciable. Apart from attributing the delay to the City,
MECSU has advanced no basis upon which to conclude that the matter
constitutes anything other than a rights dispute. The City, by contrast, has
demonstrated that the issue is operational in nature and is already receiving
administrative attention.
[46] The fourth demand concerns the encashment of annual leave. The City
submitted that the matter is sub judice, as it forms the subject of pending review
proceedings before this Court, and is therefore not amenable to strike action.
MECSU replied that it is neither a party to those review proceedings nor bound
by them, and that the demand was legitimately included in the conciliated
dispute. Clearly, this, too, is a matter in respect of which strike action is
precluded by section 65(1)(c) of the LRA. This is because the issue concerns
the payment of a benefit, which falls within the scope of section 186(2)(a) of the
LRA, and is therefore a dispute that the LRA requires to be resolved through
arbitration. That conclusion is fortified by the fact that similar disputes have been
referred to arbitration and ultimately adjudicated by this Court. Such conduct
unmistakably demonstrates that the issue is justiciable.
[47] The fifth demand relates to the implementation of the acting‑ allowance policy.
The City maintained that this is an unfair labour practice dispute capable of being
referred to arbitration and explained that financial constraints have limited acting
appointments to critical posts. MECSU contended that the City is merely
reiterating arguments rejected during conciliation and that the issue forms part of
a properly protected mutual ‑interest dispute. It is well ‑established that the
granting of an allowance constitutes a discretionary benefit of the employer,
granting of an allowance constitutes a discretionary benefit of the employer,
although it is regulated by section 186(2)(a) of the LRA. Accordingly, this issue
likewise attracts the prohibition in section 65(1)(c), and strike action in respect of
this demand is therefore impermissible.
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[48] The sixth demand relates to the retrospective payment of eight hours per month
to firefighters. The City contended that this issue was never raised through
internal channels and could appropriately have been dealt with either by way of a
grievance or by referral to arbitration, rather than through the threat of strike
action. MECSU, however, maintained that the demand formed part of the
mutual‑interest dispute conciliated at the SALGBC and asserts that the City
expressly undertook during the meeting of 2 September 2024 to investigate the
matter and provide a report before resorting to litigation.
[49] This demand, properly analysed, concerns an alleged existing entitlement to
remuneration in the form of retrospective pay. It therefore constitutes a rights
dispute. In such circumstances, section 65(1)(c) of the LRA precludes strike
action, as disputes concerning unfair labour practices , including claims for
remuneration or benefits purportedly already due, fall to be resolved through
arbitration. Because the issue is justiciable, the statutory prohibition on strike
action is triggered, rendering the contemplated strike in respect of this demand
unprotected.7
[50] This accords with the principle that a court must determine the true substance of
a demand. Where the real issue concerns the enforcement of an existing right or
entitlement, rather than the negotiation of new terms and conditions of
employment, the matter falls outside the scope of protected strike action and
must instead be pursued through the statutory dispute- resolution mechanisms
established by the LRA.
8
[51] This conclusion reinforces the principle that where the LRA prescribes a specific
dispute-resolution mechanism for a particular type of dispute, parties may not
circumvent that process by resorting to strike action. In such circumstances, any
contemplated strike is unprotected because the statutory scheme takes
7 Vista University v Botha & others [1997] 5 BLLR 614 (LC) at 617.
7 Vista University v Botha & others [1997] 5 BLLR 614 (LC) at 617.
8 Imperial Cargo (Pty) Ltd v Democratised Transport Logistics and Allied Workers Union and others [2019]
10 BLLR 1005 (LAC) at paras 12 -14.
18
precedence over a union’s preferred method of exerting pressure. 9 Accordingly,
the issue constitutes an arbitrable rights dispute rather than a negotiable interest
dispute and is therefore barred from strike action by virtue of s 65(1)(c) of the
LRA.
[52] The third demand concerns the introduction of a four -day-on/four-day-off shift
roster together with additional overtime. The City contended that shift
configurations fall squarely within the domain of structured collective bargaining
at the LLF and that the matter is presently receiving attention in that forum.
MECSU disputed this, asserting that the demand was fully canvassed during
conciliation and formed part of the dispute for which a strike certificate was
issued.
[53] It must be accepted, however, that the provisions of section 65(1)(a) of the LRA
are unequivocal. They recognise that parties may, through a collective
agreement, elect to remove certain issues from the realm of industrial action.
Where such a collective agreement exists, section 65(1)(a) prohibits strikes and
lockouts in respect of issues the parties have agreed shall not be pursued
through industrial action.
10
[54] As the provisions of section 65(1)(a) prohibit strike action where “that person is
bound by a collective agreement that prohibits a strike or lock ‑out in respect of
the issue in dispute” . The inquiry therefore has two components: (i) whether a
collective agreement regulates the issue, and (ii) whether MECSU and its
members are bound by that agreement. The evidence establishes that working
hours, shift systems and overtime arrangements are expressly regulated in the
Main Collective Agreement concluded within the local government sector. The
City placed this agreement before the Court and demonstrated that the
9 See Chamber of Mines of South Africa acting in its own name and obo Harmony Gold Mining Company
Ltd and another v Association of Mineworkers and Construction Union and others [2014] 3 BLLR 258
(LC).
(LC).
10 County Fair Foods (Pty) Ltd v FAWU & Others [2001] 5 BLLR 494 (LAC) at para 13.
19
provisions governing normal hours, shift arrangements and overtime are
negotiated centrally and form part of binding collective‑bargaining structures.
[55] MECSU does not dispute the existence of the Main Agreement or its regulatory
content; its position is limited to asserting that it is not a party to the agreement.
The principle of majoritarianism in labour law is, however, well ‑established and
requires no elaboration. In terms of this principle, collective agreements
concluded by trade unions representing the majority of employees in a workplace
bind all employees within the scope of the agreement, including those who are
not members of the majority union and who did not accede to the agreement.
The effect is that minority unions may be bound by the terms of a collective
agreement irrespective of their participation in its conclusion.
[56] This means that the legal question is not whether MECSU is a signatory, but
whether its members are bound. In this respect, the LRA adopts the majoritarian
model of collective bargaining. S 23(1)(d) provides that a collective agreement
concluded with a majority union binds all employees within its scope, irrespective
of union membership. The Constitutional Court in the Chamber of Mines
11
confirmed that such an extended application of collective agreements is
constitutionally permissible and central to orderly sectoral bargaining.
[57] In the local government context, MECSU did not demonstrate that the Main
Collective Agreement was not concluded by majority unions, nor that the
agreement was inapplicable to the workplace or bargaining unit at issue. Given
that (i) the Main Collective Agreement regulates working hours and shift
arrangements, (ii) it applies to the relevant employees through the majoritarian
system, and (iii) it contains provisions restricting industrial action on issues
reserved for collective bargaining, the conclusion follows that MECSU is bound
reserved for collective bargaining, the conclusion follows that MECSU is bound
by the agreement within the meaning of s 65(1)( a). As a result, MECSU may not
call a strike in respect of the third demand, because the Main Agreement assigns
11 Chamber of Mines of South Africa and Others, ibid.
20
this issue to structured collective bargaining and expressly removes it from the
realm of industrial action.
[58] In this matter, the City has demonstrated that the Collective Agreement applies to
the workplace, and not only to those unions or employees who are signatories to
it. Accordingly, because this demand is regulated by the Collective Agreement,
section 65(1)(a) of the LRA operates to preclude the use of industrial action in
respect of this issue.
[59] The seventh demand concerns the insourcing of security guards and cleaners.
The City contended that this issue is already being addressed pursuant to
Council resolutions and ongoing feasibility ‑study processes. MECSU, however,
alleged that the City has failed to implement the 2022 Council decision, that the
feasibility study was inadequately conducted, and that outsourcing continues in
defiance of Council directives.
[60] It must be accepted that the insourcing of security guards and cleaners flows
from a 2022 Council resolution. The City’s evidence indicates that the matter is
currently being advanced through internal Council structures, including the
completion of feasibility studies, development of funding models, and reporting to
Council committees. The City asserted that MECSU’s claims of
non‑implementation are misplaced, as the issue is under active institutional
consideration. The City is therefore correct in characterising the demand as one
regulated by statutory and municipal governance processes, rather than a
negotiable workplace matter capable of grounding strike action.
[61] Unlike the other demands, the evidence clearly shows that the insourcing issue
does not arise within the domain of labour relations as governed by the LRA. The
affidavits from both parties confirm that the issue originates from a Council
resolution and is being processed through municipal administrative structures,
namely, feasibility studies, internal reporting mechanisms, and decision‑ making
namely, feasibility studies, internal reporting mechanisms, and decision‑ making
carried out under the authority of the Council, rather than through employment or
HR‑related channels.
21
[62] The City’s position is correct that insourcing is proceeding through formal Council
governance mechanisms involving financial modelling and service‑ delivery
planning, rendering it a public ‑administration function rather than a matter for
workplace negotiation. Also, MECSU has not identified any employment ‑related
right or condition of service that has been infringed; instead, it alleges that the
City has been slow or ineffective in implementing the Council resolution. This
supports the conclusion that the issue does not constitute a “matter of mutual
interest” capable of being pursued through strike action. Disputes that fall within
institutional governance processes, rather than relating to employment
conditions, are not strikable issues within the contemplation of the LRA.12
[63] It must be emphasised that it is the substance of a demand that determines
whether it may legitimately ground strike action. Where the issue is one that
legislation or institutional frameworks assign to a specific decision‑ making
process, it cannot be pursued through industrial action. Trade unions may not
deploy strikes as a means of circumventing or displacing formal governance
mechanisms where the law prescribes an alternative process. Accordingly, in
this instance, the insourcing of security guards and cleaners constitutes a
service‑delivery and procurement decision of the municipal Council, falling
outside the collective‑ bargaining framework established by the LRA. It therefore
cannot lawfully sustain a protected strike.
Conclusion
[64] In conclusion, the City has demonstrated sufficient grounds to justify urgency and
non‑compliance with the statutory time periods, given that an imminent
unprotected strike posed the risk of substantial prejudice to its operations. While
MECSU’s constitutional right to strike is acknowledged, the LRA imposes
reasonable and justifiable limitations on that right where the underlying disputes
reasonable and justifiable limitations on that right where the underlying disputes
are arbitrable, regulated by collective agreements, or fall within the scope of
essential services.
12 Vista University supra.
22
[65] Having examined each of MECSU’s demands, it is evident that the majority
concern unfair labour practice or rights ‑based disputes, such as promotions, the
issuing of certificates, leave encashment, acting allowances, and retrospective
pay for firefighters. These matters are required to be resolved through arbitration
and are therefore expressly barred from forming the basis of strike action under s
65(1)(c) of the LRA.
[66] The demand relating to the shift system is likewise prohibited by section 65(1)( a)
on account of an applicable collective agreement regulating the issue. The
insourcing demand, in contrast, falls entirely outside the sphere of
labour‑relations bargaining, as it originates from a Council resolution and is being
advanced through municipal governance processes rather than
employment‑related mechanisms. In the result, none of the demands cited by
MECSU can lawfully sustain a protected strike, and the contempl ated industrial
action falls to be interdicted as unprotected.
[67] In the premises, the following order is made:
Order
1. The applicant’s non-compliance with the time periods, forms and manner
of service is condoned, and the matter is heard as one of urgency.
2. The applicant’s non- compliance with section 68 (2) of the LRA is
condoned.
3. The First Respondent is interdicted and restrained from calling, inciting,
promoting, encouraging, instigating, or participating in strike action and
any conduct in contemplation or furtherance of strike action, including
picketing, insofar as such action is in pursuit of any of the seven demands
set out in the strike notice served on 29 August 2024 and/or the
correspondence dated 28 and 29 August 2024, which strike action is
declared unprotected.
23
4. The Respondent is directed to take all reasonable and immediate steps to
inform its members that the intended strike action is unprotected and that
they are prohibited from participating in such industrial action.
5. There is no order as to costs.
______________________
M. Kumalo
Acting Judge of the Labour Court of South Africa
24
Appearances
For the applicant: S.F. Sibisi,
Instructed by: Salijee Govender Van der Merwe Incorporated
For the first respondent: V. Hlungwana, union official of MECSU