IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
LESIDI ALUMINIUM CC
BIG 5 COOKWARE (PTY) LTD
and
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA
CHRIS SOETSANE N 0
ANDILE ZITHO N 0
Not reportable
Case no: 4344/2025
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
EMPLOYEES OF APPLICANT PRESENTLY PARTICIPATING
IN OR INTENDING TO PARTICIPATE IN INDUSTRIAL ACTION
OR UNLAWFUL CONDUCT AT THE APPLICANT'S PROPERTY
(LIST OF NAMES ATTACHED AS 'A')
COMMISSIONER VUYO BASHOLO
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION, BLOEMFONTEIN
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
2
Neutral citation: Lesidi Aluminium CC and Another v National Union of Metalworkers
of South Africa (4344/2025) [2026] ZAFSHC 222 (27 March 2026)
Coram: PARKS AJ
Heard: 29 January 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for the hand
down is deemed to be 14h30 on 27 March 2026.
Summary: Employment law - concurrent jurisdiction of Labour Court and High
Court - urgent application - rule nisi - industrial action - unlawful conduct - interdict -
mootness - final relief.
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ORDER
1 The rule nisi granted on 20 August 2025 is discharged.
2 Each party to pay its own costs.
JUDGMENT
Parks AJ
[1] This matter concerns an application to confirm a rule nisi issued on 20 August 2025,
arising from alleged unlawful and prohibited conduct during an industrial action. No relief
is sought against the fifth and sixth respondents, as the issues pertaining to them have
since become moot. The rule nisi was granted on an urgent basis. In terms of the order,
the first to fourth respondents were interdicted and restrained from engaging in any
unlawful or criminal conduct in furtherance of the protected strike. The order further
interdicted any unidentified respondents from associating themselves . with, making
common cause with, or providing support to the individual respondents in relation to the
prohibited conduct. In addition, the court directed that service of the order be effected by
email and specified four email addresses for this purpose.
[2] JF Botha, a general manager of the first applicant, states that the first respondent
commenced strike action on 4 August 2025, prompting a letter advising the first and second
respondents of a breach of the picketing agreement. The situation escalated on 13 and
18 August 2025, requiring intervention by the South African Police Service. Striking
employees barricaded the road with stones and burning tyres, blocking access to the
premises. With police assistance, non-striking employees were eventually able to enter,
and the debris was cleared to restore access.
[3] On 19 August 2025, the first applicant issued a lockout notice to all striking
employees in terms of the Labour Relations Act 66 of 1995 (the LRA). The deponent states
that the premises were quiet at 05h05, but by 06h30 the striking employees had again
obstructed the access road with stones and burning tyres. Employees attempting to enter
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were met with stone-throwing, causing some to retreat out of concern for their safety. The
police were contacted and arrived at approximately 07h05 to stabilise the situation.
Photographs dated 15 and 18 August 2025, together with two confirmatory affidavits, were
filed in support of these allegations.
[4] Following the granting and service of the interim order of 20 August 2025, a notice of
entry as attorneys of record, together with a notice of intention to oppose, was filed on
behalf of the first to fourth respondents -on 26 August and 5 September 2025, respectively.
The deponent, however, states that the answering affidavit is lodged primarily on behalf of
the first to third respondents, and further contends that the interdict unlawfully restrains
employees from exercising their right to protest, a right authorised by the fifth respondent.
Counsel for the respondents further contends that the rule nisi ought to be discharged on
several grounds: namely, the alleged failure to effect proper service on the fourth
respondent; the assertion that certain aspects of the matter have become moot; whether
this Court has.the jurisd_iction to adjudicate the matter; questions regarding the applicants'
authority to institute the proceedings on behalf of the second applicant and an allegation
that the applicants are abusing the court process.
[5] The respondents' counsel submitted that service had not been effected on the fourth
respondent, which had previously necessitated the postponement of the matter on an
earlier court date. Counsel further submitted that they do not represent the fourth
respondent, notwithstanding that the notice of intention to oppose reflects representation
of the first to fourth respondents. According to counsel, this was a typographical error, a
position supported by the answering affidavit in which the deponent expressly states that
he is authorised to depose to the affidavit on behalf of the first to third respondents only.
he is authorised to depose to the affidavit on behalf of the first to third respondents only.
[6] Counsel further argued that, although the applicants produced a return of service on
the day of the hearing indicating that service had purportedly been effected on
24 November 2025 on one Thapelo Mchale, identified as an employee and National Union
of Metal Workers of South Africa (NUMSA) member, such service did not constitute proper
or sufficient service on the fourth respondent. The argument advanced was that, because
no individual member of the fourth respondent was identified or notified, proper service
had not been effected. I am unable to agree with this submission. The court order expressly
directed that service be effected by email, and the return of service attached at page 158
confirms that the order was emailed to the four specified email addresses on 21 August
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2025 at 07h40. In the circumstances, the objection to service cannot be sustained.
[7] The respondents contend that the dispute between the parties has become moot.
The interim order was granted in August 2025, and the first respondent subsequently
withdrew the strike by way of a letter dated 7 October 2025, with effect from
10 October 2025. Employees were instructed to resume their normal duties on Monday,
13 October 2025. It was further argued that a court will generally not adjudicate a matter
that has become moot unless the interests of justice justify doing so. The applicants,
however, advanced no argument to show that it would be in the interests of justice for the
Court to determine the matter notwithstanding its mootness.
[8] With regard to jurisdiction, the respondents contend that the relief sought effectively
seeks to interdict and restrain employees from participating in a strike. Such relief, they
argue, concerns a labour dispute regulated by the LRA, over which the Labour Court
enjoys exclusive jurisdiction. They further submit that the dispute arises from a protected
strike and that the citation of the CCMA commissioner as a respondent reinforces the
characterisation of the matter as a labour dispute. In support of this position, the
respondents rely on the authorities of Gcaba v Minister of Safety and Security and Others1
(Gcaba) and Makhanya v University of Zululand2, and argue that the applicants' reliance
on s 157(2) of the LRA to found this Court's jurisdiction is legally untenable.
[9] In Gcaba, the Constitutional Court reaffirmed the position articulated in Chirwa v
Transnet Limited and Others,3 namely that jurisdiction is determined with reference to the
pleadings. Thus, if the pleadings, properly construed, assert a claim falling within the ambit
of the LRA and one that is, by statute, subject to the exclusive jurisdiction of the
Labour Court, the High Court would lack jurisdiction. Gcaba4 further emphasises that
Labour Court, the High Court would lack jurisdiction. Gcaba4 further emphasises that
s 157(2) of the LRA confirms that the Labour Court shares concurrent jurisdiction with the
High Court in respect of alleged or threatened violations of fundamental rights entrenched
in Chapter 2 of the Constitution of the Republic of South Africa, 1996, insofar as such rights
1 Gcaba v Minister for Safety and Secuiry and Others [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR
35 (CC); (2010) 31 ILJ 296 (CC) ;[2009] 12 BLLR 1145 (CC) paras 74-75 (Gcaba).
2 Makhanya v University of Zululand [2009] ZASCA 69; 2010 (1) SA 62 (SCA) ; [2009] 8 BLLR 721 (SCA);
[2009] 4 All SA 146 (SCA); (2009) 30 ILJ 1539 (SCA) para 16.
3 Chirwa v Transnet Limited and Others [2007] ZACC 23; 2008 (4) SA 367 (CC) 2008 (3) BCLR 251 (CC);
[2008] 2 BLLR 97 (CC); (2008) 29 ILJ 73 (CC) para 169.
4 Gcaba para 71.
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arise from employment and labour relations. The Court in Gcaba5 explained that the
purpose of s 157(2) is to broaden the Labour Court's jurisdiction to include disputes
concerning alleged infringements of constitutional rights within the labour context, rather
than to limit or oust the juri~diction of the High Court.
[1 O] Counsel for the applicants, in response, submitted that the matter does not concern
the legality of the industrial action itself, but rather the unlawful and violent conduct
perpetrated during that industrial action. Such conduct, it was argued, infringed the
applicants' fundamental rights, including the right to fair labour practices under s 23 of the
Constitution. In support of this argument, reliance was placed on Bothaville Milling (Pty)
Ltd tla Thuso Mills v National Emancipated & Allied Workers Union of South Africa
("NEAWUSA'? and Others,6 a matter which likewise concerned industrial action
accompanied by unlawful conduct, in which the Court held as follows:
'Having regard to what is set out in the founding papers of the applicant, it is clear that its case is
purely based on the averred criminal conduct and conduct violating fundamental rights during and
in the course of the industrial action between the parties. The applicant is not seeking an order
prohibiting a strike or validating the industrial action proceedings ... The High Court, has concurrent
jurisdiction with the Labour Court in the circumstances of this case as provided for in section 157.'
[11] I am, however, of the view that, in the present matter, the applicants' pleadings cannot
be construed as advancing a claim under the LRA. The interdict sought does not prohibit
employees from exercising their right to strike; rather, it is directed at restraining unlawful
conduct committed in the course of that exercise. I am accordingly satisfied that the
High Court is not precluded from adjudicating disputes concerning the alleged infringement
High Court is not precluded from adjudicating disputes concerning the alleged infringement
of constitutional rights. The respondents' point in limine regarding jurisdiction, therefore,
cannot be upheld.
[12] The respondents further challenged the deponent's authority to act on behalf of the
second applicant. The first and second applicants are distinct legal entities, yet the
deponent alleges authority only in respect of the first applicant. No authority is alleged or
established in relation to the second applicant. It was further argued that it is not a rule 7
issue as averred by the applicant but rather a question of whether the deponent is
5 Ibid.
6 Bothavi/le Milling (Pty) Ltd t/a Thuso Mills v National Emancipated & Allied Workers Union of South Africa
("NEAWUSA'J and Others [2021] ZAFSHC 232 paras 5-6 and 14.
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competent to place facts before the Court on behalf of that entity. No confirmatory or
explanatory affidavit was filed to remedy this defect. In light of the CCMA jurisdictional
ruling of 5 and 8 September 2025, I am satisfied that the deponent lacks the requisite
authority to bring the application on behalf of the second applicant, particularly as the
striking employees are not employed by that entity.
[13] The respondents contend that the applicants' decision to enrol the matter on an
ex parte basis, despite knowing that the respondents were actively participating in the
strike, amounted to an abuse of the court process, particularly as they were afforded only
three hours' notice before the hearing. They further argue that, given the existence of
CCMA-issued picketing rules and the applicants' simultaneous challenge to those rules
before the CCMA, the applicants' approach constitutes impermissible forum shopping
which ought not to be condoned. I am unable to agree with this submission. The matter
was properly enrolled on the urgent court roll, duly adjudicated, and the rule nisi expressly
condoned any non-compliance with the rules relating to service.
[14] The respondent's counsel further submitted that the applicants placed insufficient
evidence before the Court to justify the relief sought. The security report relied upon is
hearsay, as the person who allegedly observed the events did not depose to an affidavit,
confirm any unlawful conduct, or attest to damage or injury. The photographs annexed
also do not depict any unlawful behaviour, and if the situation had been as volatile as
alleged, clearer evidence would reasonably have been expected.
[15] The applicant again relies on an authority decided in this division, namely LFC Milling
(Pty) Ltd v National Emancipated & Allied Workers Union of South Africa and Others,7
wherein the court stated that various documentary evidence, including photographs of the
wherein the court stated that various documentary evidence, including photographs of the
averred unlawful conduct and documents supporting the averments of an industrial action,
was presented. The court further held that the respondent had not presented any
substantive facts that genuinely placed the applicant's case in dispute and ultimately
confirmed the rule nisi.
[16] I do not agree with this submission by the respondents' counsel. Even if there were
7 LFC Milling (Pty) Ltd v National Emancipated & Allied Workers Union of South Africa and Others [2021]
ZAFSHC 235 paras 23-25.
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any doubt regarding the veracity of the deponent's statements, the colour photographs
attached to the papers confirm the volatile situation at the premises of the first applicant.
In particular, the photograph on page 149, dated 18 August 2025 at 08h03:30, depicts
stones placed across the roadway, obstructing vehicle movement, as well as two clearly
marked police vehicles. This clearly indicates that the situation required police intervention;
otherwise, there would be no reason for police vehicles to be stationed on the open land
adjacent to the first applicant's premises.
[17) Counsel for the respondents also addressed the requirements for granting a final
interdict, namely, a clear right, irreparable harm, and the absence of an adequate
alternative remedy, which they submit have not been established by the applicants. I do
not consider it necessary to repeat these requirements in detail, save to note that the
applicants do indeed hold a clear right to fair labour practices, bodily integrity, and the
ability to conduct their business in conditions of safety and security, which i_ncludes a
concomitant duty to safeguard their employees. Unlawful conduct by striking employees
has the potential to cause irreparable harm to the applicants' employees and their families.
[18] However, with rega~d to the third requirement, whether the applicants lack an
alternative remedy, the respondents' submission is well-founded. The strike has since
been withdrawn and called off, and, in any event, the applicants had the option of pursuing
relief through the CCMA, which they did by referring a dispute concerning the picketing
rules and issuing a lockout notice effective 19 August 2025. I am unable, however, to agree
with the applicants' contention that they are entitled to a permanent order prohibiting future
acts of intimidation, violence, or obstructive conduct during picketing, and that the
suspension of the protest and strike constitutes further justification for such relief. The mere
cessation of strike action does not, without more, establish a basis for the granting of
permanent interdictory relief.
[19] Given that the individuals cited as the fourth respondent may no longer be in the
applicants' employ, I am not inclined to grant any order against them. Moreover, the protest
and strike action have been withdrawn, rendering the dispute moot. This Court cannot
issue an order in respect of conduct that has ceased, nor can it grant relief aimed at
regulating hypothetical future conduct. Courts do not grant orders in perpetuity for events
that may or may not arise.
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[20] As costs ordinarily follow the result, it does not necessarily follow that the applicants
were unsuccessful on the merits. However, as the application falls to be dismissed solely
on the basis of mootness, and given that the respondents' points in limine, save for
mootness and authority, cannot be sustained, I am of the view that an adverse costs order
is not warranted.
Order
[21] I accordingly make the following order:
1 The rule nisi granted on 20 August 2025 is discharged.
2 Each party to pay its own costs.
C PARKS
ACTING JUDGE OF THE HIGH COURT
Appearances
For the applicants:
Instructed by:
For the first to third respondents:
Instructed by:
For the fourth respondents :
MC Lauw
Dippenaar & Crous Attorneys,
Bloemfontein
P Vabaza
Lenyehelo L Attorneys Inc,
Johannesburg
c/o Queen Mokhele Attorneys Inc,
Bloemfontein.
No appearance.
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