THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: 2026-034905
In the matter between:
UNIVERSITY AND ALLIED WORKERS UNION Applicant
and
UNIVERSITY OF CAPE TOWN First Respondent
Heard: 24 February 2026
Delivered: 3 March 2026
Summary: An urgent application to declare as unlawful, the termination of
organisational rights acquired through a settlement agreement , which constitutes a
collective agreement. Section 21(11) of the LRA , which requires the referral of a
representativity dispute to the CCMA, by an employer , is inapplicable. Section 23(4),
which deals with the termination of collective agreements, applies.
JUDGMENT
GANDIDZE, J
(1) Reportable: Yes
(2) Of interest to other Judges: Yes
3 March 2026
Signature Date
2
Introduction
[1] The applicant union, University and Allied Workers Union (the union), seeks,
on an urgent basis, orders against the University of Cape Town (UCT)
regarding organisational rights. Firstly, the union seeks an order declaring the
notice, which terminates the union’s organisational rights under sections 12
(access to UCT premises) and 13 (stop order facilities) of the Labour
Relations Act
1 (LRA), issued by UCT on 29 January 2026, unlawful and
setting it aside. The ancillary orders sought include the reinstatement of the
organisational rights and an interdict preventing UCT from interfering with the
union’s exercise of those rights. The orders are sought pending the final
determination by the Commission for Conciliation, Mediation and Arbitration
(CCMA) of the representativity dispute between the parties. When the urgent
application was filed, no dispute had been referred to the CCMA, with the
parties disagreeing over the nature of the dispute and which party was obliged
to refer it.
[2] On 27 February 2026, the Court issued the order dismissing the application,
with reasons to follow by 3 March 2026. These are the reasons for the order.
Background facts
[3] The union gained organisational rights at UCT in 2018. In the same year, the
union and UCT signed a Recognition Agreement in April 2018, which
specified that the union would have organisational rights subject to certain
conditions. In October 2022, UCT withdrew some of the organisational rights
previously enjoyed by the union, arguing that it no longer met the
representativity threshold.
[4] Further correspondence was sent to the union in January 2023, alleging a
further decline in membership. This was followed by another letter in which
UCT gave notice of the termination of the Recognition Agreement, citing
UCT's wish to establish a single bargaining unit. The Recognition Agreement
1 Act 66 of 1995.
3
was terminated with 90 days' notice, in accordance with the termination
clause.
[5] In August 2023, the union referred a dispute to the CCMA, alleging that UCT
failed to deduct membership subscriptions from its members. On 11 October
2023, at the conciliation meeting, a settlement agreement was reached,
granting the union organisational rights in terms of section 12 (trade union
access to the workplace) and section 13 (deduction of trade union
subscriptions of the LRA). The organisational rights were agreed upon,
subject to the union maintaining its representativity as a recognised union.
[6] The union initially argued that the settlement agreement was made an
arbitration award in terms of section 142A of the LRA. UCT strongly disputed
this version, asserting that the settlement agreement was never converted
into an arbitration award. In its heads of argument, the union claimed that it
was irrelevant whether the settlement agreement was converted into an
arbitration award and asserted that what mattered was that the agreement
was reached under the auspices of the CCMA in accordance with sections 21
(6), (7), (8) of the LRA.
2
[7] After establishing a single bargaining unit, in January 2024, UCT entered into
a collective bargaining agreement with the other unions organising at UCT. It
also concluded Recognition Agreements with these unions in the same year.
The union involved in this dispute was not a party to the agreements .
According to UCT, this was because it was not recognised, as it failed to meet
the agreed representativity threshold (either on its own or with another union).
[8] In February 2025, the union referred a dispute to the CCMA seeking the
organisational rights regarding the recognition of trade union representatives
in terms of section 11 of the LRA and leave for trade union activities in terms
of section 15 of the LRA. The other unions were cited as co- respondents. The
2 The provisions state as follows:
2 The provisions state as follows:
(6) The Commission must appoint a commissioner to attempt to resolve the dispute through
conciliation.
(7) If the dispute remains unresolved, either party to the dispute may request that the dispute be
resolved through arbitration.
(8) If the unresolved dispute is about whether or not the registered trade union is a representative
trade union, the commissioner-…
4
dispute was withdrawn in August 2025 after the parties agreed to engage in a
verification process.
[9] Before the withdrawal of the dispute referred in February 2025, the union
lodged another dispute with the CCMA in March 2025, seeking the
organisational rights of leave for stop steward activities, trade union
representatives' access to facilities, and access rights. That dispute was
resolved in November 2025, when the parties reached a settlement
agreement that the union would submit its membership records for
verification. The union submitted its membership records, and a joint
verification exercise was carried out on 25 and 26 November 2025. The union
alleges that the verification process was flawed, among other things.
[10] Before the agreement of November 2025, UCT had issued the union, on 24
October 2025, with a formal notice of intention to withdraw the organisational
rights to access the premises and stop order facilities, on the basis that the
union no longer met the minimum representativity threshold.
[11] The letter also recorded that UCT was exercising its rights in terms of sections
18
3 and 21(11)4 of the LRA, and that if the union failed to provide information
to prove that it was compliant with the representativity requirements, UCT
would refer the matter to the CCMA in terms of section 21(11) of the LRA. In
these proceedings, UCT contend that the reference to section 21(11) was an
error in law as it was not required to follow that provision to withdraw
organisational rights conferred by agreement. Section 21(11) provides as
follows:
‘(11) An employer who alleges that a trade union is no longer a
representative trade union may apply to the Commission to withdraw
any of the organisational rights conferred by this Part, in which case
the provisions of subsections (5) to (10) apply, read with the changes
required by the context.’
3 Which deals with the establishment of thresholds for representativeness by an employer and a
majority trade union.
majority trade union.
4 Section 21 deals with the exercise of organisational rights set out in Chapter III Part A of the LRA.
5
[12] The parties blame each other for what went wrong regarding the verification
process, with UCT stating that no written representations were ever received
from the union on why the specified organisational rights should not be
withdrawn. Despite that debate, it is common cause that ultimately a
verification exercise took place in November 2025. According to UCT, the
verification exercise confirmed that the union’s representativity was around
5%. The union states that the verification exercise was flawed, and the extent
of its representativity is a matter for the CCMA to pronounce on after UCT has
referred a dispute to the CCMA in terms of section 21(11) of the LRA.
[13] The culmination was the letter of 29 January 2026, in which UCT notified the
union of the withdrawal of organisational rights, effective from 28 February
2026. The union was also informed that it could refer the matter to the CCMA
under sections 21 5, 22 6, and 24 7 of the LRA if it wished to challenge the
decision. It was this letter that led to the filing of the present application, and
as jurisdiction was disputed, I address that issue first.
Jurisdiction
[14] In Zungu v Premier, Province of KwaZulu-Natal8, the Court stated that it is the
necessary averments made to demonstrate a cause of action that determines
whether the Court has jurisdiction to hear a matter.
[15] The union pleaded that the Court has exclusive jurisdiction to adjudicate
matters concerning the interpretation and application of the LRA, including
disputes relating to organisational rights as provided in sections 12, 13 and 21
of the LRA.
[16] The exclusive jurisdiction of this Court is provided for in section 157 of the
LRA, which states as follows:
157. Jurisdiction of Labour Court
5 Dealing with the exercise of organisational rights set out in Chapter III Part A of the LRA.
6 Deals with the processing of disputes about organisational rights.
7 Deals with the processing of disputes about collective agreements.
7 Deals with the processing of disputes about collective agreements.
8 (2017) 38 ILJ 1644 (LAC).
6
(1) Subject to the Constitution and section 173, and except where this
Act provides otherwise, the Labour Court has exclusive jurisdiction in
respect of all matters that elsewhere in terms of this Act or in terms of
any other law are to be determined by the Labour Court.
[17] Therefore, this Court has exclusive jurisdiction in matters where a provision
either in the LRA or any other law is to be determined by the Labour Court.
[18] The union relies on sections 12, 13 and 21 of the LRA. Sections 12 and 13 of
the LRA deal with the organisational rights of trade unions, including access
to the workplace and the deduction of trade union subscriptions or levies.
Section 21 deals with how unions may exercise the organisational rights set
out in Part A of Chapter III of the LRA. Nowhere in those provisions is it stated
that this Court has exclusive jurisdiction to hear the current dispute.
[19] However, the union also argued that section 158 (1) of the LRA empowers
this Court to grant urgent interim relief. This is correct, although the caveat is
that this Court does not have jurisdiction to entertain all types of applications
for interim relief simply because it has the power to grant urgent interim relief.
As I have recorded above, jurisdiction is determined by the cause of action
pleaded by an applicant.
[20] UCT contends that the Court is precluded, by virtue of section 157( 5) from
hearing a matter which should be referred to arbitration. That provision states
that
‘(5) Except as provided for in section 158(2), the Labour Court does not
have jurisdiction to adjudicate an unresolved dispute if this Act or
any employment law requires the dispute to be resolved through
arbitration.’
[21] But UCT also conceded that in exceptional circumstances, the Court can
grant interim relief to preserve the status quo even where there are statutory
and tailor-made remedies. The status quo can be preserved pending the
7
determination, by the appropriate forum, of the merits of the underlying
dispute9.
[22] It is so that the Commission has jurisdiction to finally determine the dispute
between the parties. However, the union is seeking interim relief pending the
determination of a representativity dispute by the CCMA. This Court does
have jurisdiction to grant the interim relief sought , in terms of section
158(1)(a). The question is whether the union has made out a case for interim
relief, taking into account the requirements for interim relief. The other
requirement is whether the union has demonstrated exceptional
circumstances justifying interim relief until the outcome of a dispute that will
be referred to the CCMA.
[23] The Court is of the opinion that even though the requirement of exceptional
circumstances is separate and distinct, in some cases, whether there are
exceptional circumstances or not is closely linked to issues of urgency, as well
as whether the applicant has shown a prima facie right to the relief it seeks. I
am therefore willing to consider the application on the basis that there are
exceptional circumstances justifying this Court’s involvement, but whether the
relief sought will ultimately be granted depends on the merits, or not, of the
application.
[24] UCT also argued that the union sought interim relief pending the CCMA's final
decision on a dispute, even though no dispute has been referred to the
CCMA. Usually, this would have been considered negatively against the
union. However, in this case, although both parties agree that a dispute must
be referred to the CCMA, they disagree on who should make the referral. The
answer to that question relates to the merits of the application, which will be
discussed after I have addressed the issue of urgency, also contested.
Urgency
[25] An applicant who approaches this Court urgently must outline the reasons for
their urgency and demonstrate why they cannot obtain substantial recourse in
their urgency and demonstrate why they cannot obtain substantial recourse in
9 Jiba v Minister of Justice and Constitutional Development [2016] 4 BLLR 408 (LC).
8
due course. An additional consideration is whether the urgency was self -
created.10
[26] The application was launched on 16 February 2026; UCT filed the answering
papers on 20 February 2026, that is within four days; the matter was set down
for hearing on 24 February 2026; with the judgment expected within three
days, that is, by midnight on 27 February 2026 . It is against this very tight
timetable that it must be assessed with the union launched the application
without delay after the dispute arose.
[27] UCT’s letter of October 2025 stated its intention to withdraw organisational
rights. It also mentioned that if the union failed to provide the necessary
information, UCT would refer the matter to the CCMA. Consequently, I accept
that urgency was not present in October 2025, considering UCT’s assurance
that the next step would be to refer the matter to the CCMA. As I noted earlier
in the judgment, when the application was initiated, no dispute had been
referred to the CCMA.
[28] That a verification exercise was undertaken at the end of November 2025 also
did not trigger urgency, in my view, because the union reasonably believed
that the next step would be for UCT to refer a dispute to the CCMA, as it
undertook to do in its October 2025 letter.
[29] It is UCT’s letter dated 29 January 2026, withdrawing the organisational
rights, that triggered the urgency. This meant that the 28 February 2026
deadline was approaching.
[30] Upon receipt of that letter, the union should have acted swiftly and sent a
letter to UCT demanding the immediate withdrawal of the letter; otherwise, an
application would be launched. Instead, the union took 13 days to respond. It
acted without any genuine sense of urgency.
[31] When the letter was ignored, the union waited a further five days before
submitting the current application. By that point, only two weeks remained
before the withdrawal took effect.
10 East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd 2011 JDR 1832 (GSJ).
9
[32] Essentially, this means that the union had 18 days to approach the Court,
UCT had four days to prepare an answering affidavit, and the Court had three
days to consider the matter and deliver a judgment. The unfairness and
prejudice to both UCT and the Court are clear, which explains why only an
order was issued on 27 February 2026, with reasons to follow in due course.
[33] Despite this, the union is seeking interim relief to maintain the status quo until
the CCMA's determination of the dispute is made in due course. I recognise
that if the withdrawal becomes effective at midnight on 27 February 2026, the
union would lose the organisational rights it currently holds. The Court’s
intervention before midnight on 27 February 2026 was necessary to decide
whether UCT had lawfully withdrawn the organisational rights it had held since
2018. The issue was not whether the union was entitled to the organisational
rights, but rather whether UCT could withdraw them as it had done. Therefore,
any redress obtained later would not undo what had already been done. For
this reason, I accepted that unless the Court resolved the matter by 27
February 2026, the union would not be able to obtain substantial redress in
due course.
[34] I have already determined that UCT was prejudiced by the truncated time
periods for filing its answering affidavit. In that answering affidavit , it reserved
the right to supplement it. When the matter was argued, UCT had not filed
supplementary papers.
[35] Taking all of the above into account, the matter will be treated as urgent and
decided on its merits.
The parties’ contentions
(a) Union’s submissions
[36] Although the founding affidavit claimed that the organisational rights were
acquired through a settlement agreement that was converted into an
arbitration award, the union argued that whether the settlement agreement
was certified as an arbitration award is irrelevant. What matters is that the
was certified as an arbitration award is irrelevant. What matters is that the
organisational rights were obtained under sections 21(6), (7), and (8) of the
10
LRA after the union referred the matter to the CCMA. Therefore, the union
contended, organisational rights gained at the CCMA can only be withdrawn
in terms of section 21(11).
[37] Above, I reproduced section 21(11), which states that an employer who
claims that a trade union is no longer a representative trade union may apply
to the Commission to revoke any of the organisational rights granted by this
Part. The union also correctly pointed out that, in terms of section 21(11), it is
UCT, not the union, that must refer the matter to the CCMA.
[38] It was also the union’s submission that an official of UCT, with express or at
least ostensible authority, gave an undertaking that UCT would refer the
dispute to the CCMA, and that, contrary to that undertaking, UCT issued the
notice of termination of organisational rights on the grounds that the union
was no longer representative.
[39] Regarding its representativity, the union submits that it did not accept the
outcome of the verification process, which it claims was fundamentally flawed.
In any case, the union submitted that only the CCMA can settle a dispute
about its representativeness.
[40] Consequently, according to the union, the notice of termination is irregular
and constitutes an unlawful attempt to subvert section 21(11) of the LRA and
shift the burden onto the union to refer the matter to the CCMA.
[41] The other basis for arguing that the notice of termination was unlawful is that
the Recognition Agreement required 90 days' notice, whereas UCT had
issued only one month's notice. This argument was not pursued seriously
because it was admitted that the Recognition Agreement was lawfully
terminated in 2023.
(b) UCT’s submissions
[42] It was not required to refer a dispute to the CCMA before terminating the
union’s organisational rights because those rights were obtained through a
settlement agreement that was never certified as an arbitration award.
11
Therefore, according to UCT, the dispute relates to the termination of a
settlement agreement, which explains why the notice of termination informed
the union that it could refer the dispute to the CCMA in terms of sections 21,
22, and 24 of the LRA, but the union had decided that section 21(11) applies.
[43] Therefore, according to UCT, the issue for determination is how
organisational rights acquired under a settlement agreement concluded at the
CCMA can be withdrawn if an employer alleges that a union is no longer
representative. In other words, is the employer required to refer a dispute to
the CCMA in terms of section 21(11) of the LRA, or can such an employer
simply give notice of termination as UCT has done?
[44] Regarding its letter of October 2025 stating that it would refer the matter to the
CCMA, it was submitted that this was an error, as at the time, UCT was not
aware of the decision in Edgars Consolidated Stores Ltd v Federal Council of
Retail and Allied Workers Union
11(Edgars). It also contends that the
ostensible authority point was not pleaded.
[45] UCT also argues that it has the right to terminate the settlement agreement
because the minimum requirement of 300 members has not been fulfilled over
several years.
Analysis
[46] As I see it, the dispute between the parti es is how an employer can lawfully
withdraw organisational rights acquired in terms of a settlement agreement
concluded at the CCMA, pursuant to a referral of a section 21 dispute to the
CCMA by a union.
[47] I agree with the union’s submission that it sought interim relief pending the
CCMA's final decision on the dispute. The fact that the dispute had not yet
been referred to the CCMA did not render the relief sought by the union final.
Therefore, the relief that this Court can grant, provided the union has
established a case for relief, would be interim in nature, subject to the final
decision on the dispute which is still to be referred to the CCMA.
11 (2004) 25 ILJ 1051 (LAC).
12
[48] In Setlogelo v Setlogelo 12, the Appellate D ivision held that an applicant
seeking interim relief must demonstrate a prima facie right, even if open to
some doubt , must show they will suffer irreparable harm if the relief is not
granted, that there is no suitable alternative remedy, and that the balance of
convenience favours grant ing the orders sought. Each of these requirements
will now be addressed.
(a) Prima facie right
[49] The organisational rights that UCT sought to withdraw were not acquired
under the Recognition Agreement, as that agreement was terminated in 2023.
The organisational rights were obtained after the union referred a dispute to
the CCMA, in terms of section 21 of the LRA. It is common cause that during
the conciliation stage, the parties entered into a settlement agreement, which
granted the union the organisational rights in question. The settlement
agreement was never made into an arbitration award.
[50] The issue to be determined, therefore, is the process an employer must follow
to withdraw organisational rights acquired through a settlement agreement.
[51] The union asserts that section 21(11) must be followed before such rights are
terminated, and that UCT cannot unilaterally withdraw them. UCT argues that
section 21(11) applies solely to organisational rights granted under an
arbitration award, not those conferred through a settlement agreement. It
maintains that organisational rights granted in a settlement agreement
automatically cease if an agreed condition is not met. Alternatively, it
contends that the settlement agreement constitutes a collective agreement
and, that in terms of section 23(4) of the LRA, it is entitled to terminate it on
reasonable notice as it has done.
[52] Section 21 of the LRA addresses the exercise of organisational rights in Part
A of Chapter III of the LRA. These rights include trade union representatives,
access to the workplace for trade unions, deduction of trade union
12 1914 AD 221.
13
subscriptions and levies, leave for trade union activities, and the disclosure of
information.
[53] A registered trade union 13 that is sufficiently representative and seeks to
exercise those rights may notify the employer in writing (subsection 1).
Subsection 2 outlines the contents of the union's notice. The employer and
the trade union must then meet within 30 days and endeavour to conclude a
collective agreement on how those rights will be exercised (subsection 3). If
no collective agreement is concluded, either party may refer the dispute to the
CCMA (subsection 5), which will appoint a commissioner to attempt to
conciliate the dispute (subsection 6). If the dispute remains unresolved, either
party may then request arbitration (subsection 7).
[54] Subsection 8 details the factors that a commissioner must consider when
arbitrating a dispute about the representativeness of a trade union, and
subsection 9 explains how a commissioner determines a union's membership
or support. Subsection 10 requires the employer to cooperate when a
commissioner assesses the trade union's membership or support, and this is
followed by subsection 11, which has been quoted above.
[55] The contention was that the organisational rights were acquired after the
union referred the dispute to the CCMA and could therefore only be withdrawn
in terms of section 21(11) of the LRA , which requires UCT, which is alleging
that it is no longer representative, to refer a dispute to the CCMA.
[56] The union submitted that in National Union of Metalworkers of SA and Others
v Bader Bop (Pty) Ltd
14 (Bader Bop), the Court held that an employer who
considers a union to have lost its representative status must apply to the
CCMA to withdraw the organisational rights, and that such an employer
cannot resort to self -help. Indeed, this is what section 21(11) states. What
Bader Bop does not deal with is the withdrawal of organisational rights
acquired other than in terms of section 21(8) , which is the dispute in the
acquired other than in terms of section 21(8) , which is the dispute in the
present matter.
13 There is a pending dispute regarding the registration status of the union.
14 2003 (2) BCLR 182 (CC)
14
[57] Both parties placed reliance on Edgars . That decision drew a distinction
between organisational rights acquired in terms of a collective agreement, and
those acquired in terms of section 21(7) of the LRA15.
[58] Section 21(7) of the LRA provides as follows:
‘If a dispute remains unresolved, either party may request that the dispute be
resolved through arbitration.’
[59] Consequently, section 21(7) of the LRA applies to organisational rights
acquired pursuant to an arbitration award.
[60] In distinguishing between organisational rights obtained through a collective
agreement and those acquired via an arbitration award, in Edgars , the Court
stated this:
‘[21] It is after all this that subsection (11) then follows. On the face of it, s
21(11) would appear to apply to both those organizational rights that
are regulated by a collective agreement concluded in terms of s 21(3)
as well as those that are regulated by an arbitration award issued in
terms of s 21(7). However, there is a distinction that must be drawn
between the organizational rights regulated by a collective agreement
and those regulated by an arbitration award. The distinction is that, in
the case of those regulated by a collective agreement, the provisions
of s 23, which apply to all collective agreements, apply to the
collective agreement in which they are contained whereas those
provisions do not apply to an award that regulates the manner in
which a union must exercise organizational rights conferred on it by an
arbitration award in terms of s 21(7). This makes a major difference in
regard to the termination of such organisational rights. The difference
it makes is to be found in s 23(4). That provision reads thus:
'Unless the collective agreement provides otherwise, any party to a
collective agreement that is concluded for an indefinite period may
terminate the agreement by giving reasonable notice in writing to the
other parties.' (My underlining)
other parties.' (My underlining)
15 Which provides that if a dispute about organisational rights remains unresolved during at
conciliation, either party may request that the dispute be resolved through arbitration.
15
[61] Therefore, the Court found that organisational rights acquired under a
collective agreement, after a union has referred a dispute to the CCMA in
terms of section 21(3), can be withdrawn when the collective agreement is
lawfully terminated. In terms of section 23(4), collective agreements are
terminated either in accordance with the termination clause or upon
reasonable notice.
[62] However, in respect of organisational rights acquired in terms of an award
issued pursuant to an arbitration in terms of section 21(7) of the LRA , the
Court stated this:
‘[24] …In this matter the construction that I hold to be correct is that s
21(11) only applies to those organizational rights which are regulated
by an arbitration award issued in terms of s 21(7), whereas s 23(4)
applies to those organizational rights contained in a collective
agreement regulating such rights.’
[63] Therefore, section 21(11) of the LRA applies only if the organisational rights
were acquired pursuant to an arbitration award. Therefore, contrary to the
union’s submission, it is highly relevant how the organisational rights sought
to be withdrawn were obtained.
[64] The organisational rights in this case were obtained through a settlement
agreement. That settlement could have been an arbitration award under
section 142A of the LRA, which provides as follows:
142A. Making settlement agreement arbitration award.
(1) The Commission may, by agreement between the parties or on
application by a party, make any settlement agreement in respect of
any dispute that has been referred to the Commission, an arbitration
award.
(2) For the purposes of subsection (1) , a settlement agreement is a
written agreement in settlement of a dispute that a party has the right
to refer to arbitration or to the Labour Court, excluding a dispute that a
party is entitled to refer to arbitration in terms of either section 74
(4) or 75 (7).
16
[65] In this case, the union wrote to the CCMA informing it that a settlement
agreement was entered into, but no evidence was placed before the Court
that the settlement agreement was ever made an arbitration award.
Therefore, the union’s claim that there was either a settlement agreement or
an arbitration award is misleadin g. It had to be one or the other. In this case,
it’s a settlement agreement.
[66] The fact that the settlement agreement was not concluded under section
21(3) (before referral to the CCMA), but under subsections (6), (7), and (8)
(after the referral of the dispute to the CCMA), makes no difference. The only
question is whether there is an arbitration award under section 21(7) . If not,
section 21(11) of the LRA does not apply. In other words, UCT is not required
to refer a matter to the CCMA before withdrawing organisational rights
granted to a union.
[67] Having established that there is no arbitration award granting organisational
rights to the union, it means UCT was not required to refer a dispute to the
CCMA under section 21(11) of the LRA before withdrawing those
organisational rights. That must be the end of the union’s case. It has failed to
demonstrate a prima facie right to the relief it sought, and the application must
fail on that ground.
[68] I nevertheless proceed to determine how UCT could lawfully terminate
organisational rights acquired under a settlement agreement.
[69] UCT submitted that it could simply terminate the agreement with reasonable
notice. Alternatively, it argued that the settlement agreement constitutes a
collective agreement given the definition in section 213. The alternative
argument is more convincing.
[70] Section 213 provides as follows:
‘collective agreement” means a written agreement concerning terms and
conditions of employment or any other matter of mutual interest concluded by
one or more registered trade unions , on the one hand and, on the other
hand—
17
(a) one or more employers.’
[71] The settlement agreement was between an employer and a trade union ,
concerning organisational rights, a matter of mutual interest , as per Bader
Bop16. Therefore, on the face of it, the parties concluded a collective
agreement.
[72] In POPCRU v Sacoswu and Others 17, the Constitutional Court distinguished
between organisational rights that unions automatically acquire under Part A
of Chapter III of the LRA if they are sufficiently representative, and
organisational rights that unions obtain through a collective agreement. The
Court stated this about the latter rights:
‘[139] The other type of organisational right is that of contractual
organisational rights. The statutory organisational rights differ from
the contractual rights in that their source is the statute, whereas the
source of contractual organisational rights is a contract in the form of
a collective agreement between a trade union and an employer.
Another distinction between the two types is that, whereas an
employer has no right in law to terminate a registered trade union's
statutory organisational rights, an employer may terminate a trade
union's contractual organisational rights by lawfully terminating the
collective agreement. In other words, an employer may terminate a
contractual organisational right on the normal principles of the law of
contract such as a material breach of the contract or by giving the
requisite notice of termination. In fact s 23(4) of the LRA makes this
clear…’
[73] Section 23(4) of the LRA deals with the termination of collective agreements
as follows:
‘(4) Unless the collective agreement provides otherwise, any party to
a collective agreement that is concluded for an indefinite period may
terminate the agreement by giving reasonable notice in writing to the
other parties.’
16 Bader Pop (id fn 14) at para 40.
17 2019 (1) SA 73 (CC).
18
[74] The union did not respond to the subm ission that the settlement constitutes a
collective agreement. Instead, it argued that section 24, which deals with
disputes over the application and interpretation of collective agreements, does
not provide an adequate remedy for a complaint that an employer has
unilaterally withdrawn organisational rights. The issue of ‘ no suitable
alternative remedy’ is separate from the question of how organisational rights,
obtained under a collective agreement, might be withdrawn.
[75] UCT withdrew the organisational rights with one month’s notice. Although
initially arguing that UCT was required to give 90 days' notice, as stipulated in
the 2018 Recognition Agreement, this argument was not pursued after it was
agreed that the Recognition Agreement was lawfully terminated in 2023.
[76] Did the settlement agreement include a termination clause? It did. The
agreement states that organisational rights are granted on the condition that
the union meets the representative threshold of 10%, and according to UCT,
the union’s representativity as of November 2025 was approximately 5%. The
union did not claim to meet the 10% representativity threshold. Instead, it
argued that the CCMA should determine its level of representativity. If indeed
the union failed to meet the agreed representativity threshold, then the
agreement would terminate automatically; alternatively, it could be terminated
on reasonable notice.
[77] It is so that the CCMA has jurisdiction, under section 21 of the LRA, to
determine if the union is sufficiently representative to enjoy the organisational
rights outlined in Part A of Chapter III of the LRA, but this is not done in
accordance with section 21(11) of the LRA , for reasons already explained in
this judgment.
[78] The fact that UCT undertook to refer the matter to the CCMA under section
21(11) of the LRA does not alter the legal position. The undertaking was given
21(11) of the LRA does not alter the legal position. The undertaking was given
by someone with authority, and it was found not to comply with current law.
This issue will be taken into consideration when determining costs.
[79] Before concluding on the prima facie requirement, UCT cited an unreported
decision of this Court in Democratic Municipal and Allied Workers' Union of
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South Africa (DEMAWUSA) obo Members v Bushbuckridge Local
Municipality, South African Local Government 18(DEMAWUSA). In that matter,
the union, which sought organisational rights, referred the matter to the CCMA
in terms of section 21. An arbitration was held, as contemplated in section
21(7), and an arbitration award granting the union organisational rights was
issued. The award directed the parties to conclude a collective agreement on
how those organisational rights would be exercised. The parties entered into a
Recognition Agreement, which provided that it could be terminated by mutual
agreement. Subsequently, the employer sought to terminate the
organisational rights of trade union representatives, contending that this issue
was not addressed in the Recognition Agreement, and was allowed in terms
of an arrangement with the union. The union referred a dispute to the CCMA
in terms of section 24 of the LRA, which deals with disputes about collective
agreements. The commissioner who arbitrated the matter found that the
CCMA lacked jurisdiction. The union approached this Court for interim relief
and sought to review the award that determined the CCMA lacked jurisdiction.
This Court found that the dispute was indeed about a collective agreement.
[80] In my view, and as I understand the facts, the DEMAWUSA decision does not
address the issues raised in the current matter. In that case, the
organisational rights granted through an arbitration award, and subsequently
a collective agreement, were never withdrawn. Instead, the dispute concerned
organisational rights granted under an arrangement between the union and
the employer, and the Court found that it concerned a contract, in the form of
a collective agreement, and that the CCMA had jurisdiction to hear that
dispute in terms of section 24 of the LRA, which deals with disputes about
collective agreements.
[81] To conclude, the union did not acquire the organisational rights UCT is
[81] To conclude, the union did not acquire the organisational rights UCT is
withdrawing under an arbitration award. The organisational rights were
acquired through a settlement agreement that met the requirements of a
collective agreement. The collective agreement can be terminated if the union
fails to meet the required minimum representativity threshold or on reasonable
18 (2024/107100) [2024] ZALCJHB 413 (23 October 2024).
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notice. The main issue is whether UCT could terminate the collective
agreement, and if not, what recourse is available to the union. UCT proposed
that the dispute could be addressed under section 21, section 22, or section
24 of the LRA. It is not for this Court to decide on the matter, as it is well
established that this Court does not provide legal advice. Its role is solely to
determine the dispute referred to it . The dispute referred to the Court was for
interim relief, pending UCT's referral of a dispute to the CCMA in terms of
section 21(11). The Court has determined the dispute.
[82] The finding regarding no prima facie right demonstrated is dispositive of the
matter, but for completeness I proceed to deal with the rest of the
requirements for interim relief.
Irreparable harm
[83] The union submitted that , should the sought orders not be granted, it will
suffer severe, imminent and irreparable harm . It will be barred from entering
UCT campuses to service current members and to recruit members , it will
lose visibility, prestige and bargaining leverage, and the stoppage of stop
order facilities means that it will lose its primary source of income in the form
of subscriptions.
[84] UCT submitted that if the termination is lawful, then there can be no harm to
the union. It also submitted that the union can obtain subscriptions directly
from members and that any lost subscriptions can be recovered in due
course. It also submitted that the union can meet with its members outside
UCT’s premises.
[85] I agree with UCT’s submission that if it is ultimately found that UCT could not
terminate the collective agreement, there is no reason why UCT cannot be
ordered to pay all outstanding subscriptions, plus interest, since this will be a
monetary claim.
[86] UCT’s contention that the union can meet with its members outside campus
is, on the face of it, impractical.
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[87] The key issue on this requirement is that the union’s submissions explaining
why the termination was unlawful were rejected. If the termination was lawful,
any harm that the union experiences is the type of harm that all unions face
when a collective agreement is lawfully terminated.
(c) Balance of convenience
[88] The union submitted that the prejudice to it is immediate and ongoing, that the
loss of subscription income strikes at the heart of the union’s ability to
function, and that the disruption to its activities will cause confusion and
disengagement among the members, who may leave the union. It also
submitted that UCT will suffer no prejudice, as the relief sought is interim and
restitutionary in nature, maintaining the status quo pending the CCMA's
determination on the union’s representativity at UCT. It further submitted that
UCT will simply be required to continue doing what it has been doing for
years, pending a lawful process for change.
[89] UCT argued that the balance of convenience favou rs rejecting the relief
sought, to promote orderly collective bargaining and to uphold the objectives
of the LRA, including minimising the proliferation of trade unions and
encouraging representative trade unionism in the workplace. It also stated
that no dispute is currently pending at the CCMA.
[90] I have already established that the withdrawal of organisational rights under a
collective agreement was lawful, as the termination was made in accordance
with the agreed terms and with reasonable notice. Therefore, the balance of
convenience supports denying the relief sought.
(d) No alternative remedy
[91] When I dealt with urgency, I concluded that only this Court could grant the
interim relief pending the outcome of a dispute yet to be referred to the
CCMA. This is a separate issue from the correct procedure under which such
a dispute should be referred to the CCMA, and by whom. However, I also
a dispute should be referred to the CCMA, and by whom. However, I also
concluded that the union has not demonstrated a prima facie right to the relief
it sought.
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[92] UCT raised the issue that the union could also strike for the organisational
rights it sought. Although minority unions are entitled to strike to acquire
organisational rights, the union sought an order to maintain the status quo
rather than to obtain organisational rights. Only this Court could grant such an
order if a case had been made for it. Therefore, striking was not a suitable
alternative remedy.
Costs
[93] The parties sought costs orders against each other. The union argued that
UCT had acted unreasonably, forcing it to litigate, while UCT contended that
the application was without merit and that more consideration should have
been given to whether to bring it forward.
[94] The union's application was unsuccessful on the merits. However, there are
also issues with the union's conduct that need to be highlighted. It submitted
the urgent application at a time that suited itself and its legal representatives,
neglecting the pressure it was exerting on UCT to file answering papers or on
the Court to issue an order by the midnight deadline of 27 February 2026. It
made false submissions, claiming that the Recognition Agreement applied,
even though it was aware it had been terminated in 2023. It also argued that it
had gained organisational rights pursuant to an arbitration award, only to later
change its stance and assert that it was either a settlement agreement or an
arbitration award. How could the union be unaware of how it had acquired the
organisational rights that UCT was withdrawing?
[95] In urgent matters where the Court must deliver judgments within tight time
constraints, the parties should at least be honest and present accurate facts.
It is a waste of the Court’s time to consider an urgent application based on
fabricated disputes of fact, beyond the legal issues. The Court views the
union’s version very negatively, which, by all accounts, has caused delays in
issuing the judgment.
[96] UCT successfully opposed the application. However, its submissions on
[96] UCT successfully opposed the application. However, its submissions on
jurisdiction, urgency, and some of the interim relief requirements were
deemed to be without merit.
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[97] I have also considered that UCT made a commitment to the union that, if it
could not demonstrate it met the representativity threshold, UCT would refer
the matter to the CCMA. It then reversed its position without explaining to the
union that, based on legal advice, its view that it should refer the matter under
section 21(11) of the LRA had been mistaken.
[98] It is uncertain whether there is a continuing relationship between the parties,
although the correspondence following the November 2025 meeting to verify
the union’s membership figures suggests that the relationship could be
restored. This judgment is unlikely to resolve the dispute between the parties.
A costs order against either party could damage a relationship that might still
be repairable. Therefore, each party must bear its own costs.
[99] In the result, the following order is made:
Order
1. The matter is heard as one of urgency.
2. The application is dismissed.
3. There is no order as to costs.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant : Advocate T Malatji
Instructed by : Rasetlodi Sekhasimbe & Associates
For the Respondent : Advocate LW Ackermann
Instructed by : Bowman Gilfillan Inc.