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[2026] ZALCCT 91
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National Union of Public Service and Allied Workers (NUPSAW) v Parliament of Republic of South Africa and Others (2026/112604) [2026] ZALCCT 91 (9 June 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No:
2026-112604
(1)
Reportable: Yes
(2)
Of interest to other Judges: No
(3)
Revised
09
June 2026
In the matter between:
NATIONAL
UNION OF PUBLIC
SERVICE
AND ALLIED WORKERS
(NUPSAW)
Applicant
and
PARLIAMENT
OF THE REPUBLIC
OF
SOUTH AFRICA (represented by
the
Secretary to Parliament)
First
Respondent
THE
SPEAKER OF THE NATIONAL
ASSEMBLY
Second
Respondent
THE
CHAIRPERSON OF THE
NATIONAL
COUNCIL OF
PROVINCES
Third
Respondent
NATIONAL
EDUCATION, HEALTH
AND
ALLIED WORKERS UNION
(NEHAWU)
Fourth
Respondent
SOUTH
AFRICAN LEGISLATIVE
SECTOR
EMPLOYERS'
ORGANISATION
(SALSEO)
Fifth
Respondent
Heard
:
28 May 2026
Delivered
:
9 June 2026
Summary:
(Urgent application –
termination of limited organisational rights without notice
purportedly on the basis of a workplace
collective agreement
affording such rights being superseded by the conclusion of an
overarching sector wide collective agreement
cancelling the workplace
level agreement – interim relief pending outcome of dispute
referred to CCMA or order of final relief
– interim relief
granted)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This is an urgent application in which the
applicant, NUPSAW, a registered union, seeks interim interdictory
relief restoring its
organisational rights obtained under a
collective agreement between Parliament, the first respondent, and
the fourth respondent
NEHAWU, another registered union, pending the
determination of substantive disputes under Part B of the application
and proceedings
to be pursued in terms of sections 21 and 24 of the
Labour Relations Act 66 of 1995 (“the LRA”). The interim
and final
relief set out in the notice of motion reads:
‘
PART
A: URGENT INTERIM RELIEF
1.
That the forms of service and time periods
provided for in the Rules of this Honourable Court be dispensed with,
and that this application
be heard as one of urgency in terms of Rule
38 of the Rules of the Labour Court, on the following abridged
timetable:
a.
any Respondent intending to oppose the
application is to deliver a notice of intention to oppose by no later
than Wednesday, 20
May 2026;
b.
any Respondent opposing the application is
to deliver its answering affidavit by no later than Friday, 22 May
2026;
c.
the Applicant is to deliver its replying
affidavit, if any, by no later than Monday, 25 May 2026;
d.
the parties are to deliver their respective
heads of argument, if directed by the Court to do so, by no later
than Wednesday, 27
May 2026; and
e.
the application is to be heard on Thursday,
28 May 2026, or on such other date as the Registrar may allocate.
2.
Pending the final determination of Part B
of this application and the substantive disputes referred and to be
referred to the Commission
for Conciliation, Mediation and
Arbitration as more fully set out in the Founding Affidavit, the
First Respondent is interdicted
and restrained from giving effect to
the purported revocation of the Applicant's right of access to
Parliament communicated by
letter dated 7 May 2026 from Ms Santie
Myburgh to Mr Vuyani Shwane ("the revocation letter").
3.
Pending the final determination of Part B
and the substantive disputes referred to in prayer 2 above, the First
Respondent is directed
forthwith to restore, and thereafter to
maintain, the Applicant's right of access to the precincts of
Parliament on the same terms
and conditions as obtained immediately
prior to 7 May 2026, including (without limitation):
a.
the right of the Applicant's officials and
office bearers to enter the precincts of Parliament for the purposes
of representing
members, attending to union business, and exercising
the rights conferred by
section 12
of the
Labour Relations Act 66 of
1995
;
b.
the right of the Applicant to convene
general meetings with its members at the precincts of Parliament, as
previously arranged with
the First Respondent;
c.
the right of the Applicant's officials to
communicate with members at the precincts of Parliament, subject to
the standard security
and operational protocols of the First
Respondent.
4.
Costs of Part A in the event of opposition,
on the scale as between attorney and client.
5.
Further and/or alternative relief.’
‘
PART
B: FINAL RELIEF
1.
It is declared that the purported
revocation of the Applicant's right of access to Parliament
communicated by the letter dated 7
May 2026 is unlawful, invalid and
of no force or effect, on the grounds that it:
a.
was effected in breach of clause 18.2 of
the Recognition Agreement concluded between the First Respondent and
the Fourth Respondent
on 6 December 2012 ("the 2012 Recognition
Agreement"), which requires three (3) calendar months' written
notice of termination;
b.
was effected in breach of clauses 19 and
21.2 of the 2012 Recognition Agreement, which require any variation
of that Agreement to
be reduced to writing and signed by the parties;
c.
was effected without recourse to the
procedure prescribed by
section 21(11)
of the
Labour Relations Act 66
of 1995
;
d.
was effected on the strength of an asserted
supersession of the 2012 Recognition Agreement by the Recognition and
Procedural Agreement
signed between the Fifth Respondent and the
Fourth Respondent on or about 10 April 2026 ("the SALSEO/NEHAWU
Agreement"),
which asserted supersession is itself a disputed
legal question that had not, and has not, been adjudicated;
e.
constitutes a unilateral and impermissible
variation of a benefit vested in the Applicant as third party
beneficiary under clause
4.3 of the 2012 Recognition Agreement,
contrary to the principle of stipulatio alteri.
2.
It is declared that the Applicant's right
of access to Parliament, conferred under clause 4.3.2 of the 2012
Recognition Agreement,
subsists until lawfully terminated and was not
lawfully terminated by the revocation letter of 7 May 2026.
3.
The First Respondent is interdicted and
restrained from giving effect to the revocation letter of 7 May 2026.
4.
The First Respondent is ordered to restore
the Applicant's right of access to Parliament on the same terms and
conditions as obtained
immediately prior to 7 May 2026.
5.
The First Respondent is ordered to pay the
costs of this application, including the costs of Part A, on the
scale as between attorney
and client; and any other Respondent
opposing the application is ordered to pay such costs jointly and
severally with the First
Respondent, the one paying the others to be
absolved.’
[2]
The dispute arises from a letter issued by
Parliament on 7 May 2026, in terms of which the Applicant’s
right of access to
the precincts of Parliament was revoked “with
immediate effect”. The letter was authored by Ms S Myburgh
(‘Myburgh’),
who is employed as Parliament’s Labour
Relations Specialist, acknowledged that NUPSAW had been granted
access to parliamentary
premises on the basis of its ‘minority
union’ status as defined in the collective agreement concluded
in 2012 between
Parliament and NEHAWU. However, she advised that the
recent agreement concluded on 10 April 2026 between NEHAWU and the
fifth respondent,
SALSEO, an employer’s organisation,
superseded all recognition agreements concluded between individual
legislatures (hereafter
referred to as the ‘SALSEO agreement’
or ‘sectoral agreement’). The terms of the sectoral
agreement stipulated
that
section 12
and
13
organisational rights are
only obtainable by a union that represents 30 % of employees in the
legislative sector nationally. Under
the parliamentary
agreement, a minority union was defined as a union with a minimum
membership of 15 % of the workforce falling
under the
bargaining unit and in terms of clause 4.3.2 was entitled to access
rights in terms of
Section 12
of the LRA, which is what NUPSAW enjoys
under that agreement.
[3]
Myburgh advised, in effect, that because
the new sectoral threshold for
Section 12
rights in the SALSEO
agreement was much higher than the ‘superseded’
parliamentary agreement, Parliament was terminating
NUPSAW’s
access right to Parliament with immediate effect.
[4]
The central issue is whether, pending the
resolution of disputes concerning the effect of a sectoral agreement
concluded on 10 April
2026, Parliament was entitled unilaterally to
withdraw those rights without notice, process, or prior adjudication.
Factual Background:
Chronology of Events
[5]
The dispute must be understood against the
background of the collective bargaining framework at Parliament.
[6]
On 6 December 2012, Parliament and NEHAWU
concluded the parliamentary agreement regulating collective
bargaining at Parliament.
[7]
That agreement established a system of
representivity thresholds, including a 15% threshold for minority
union recognition, entitling
such unions to organisational rights
including access to the workplace.
[8]
During the second half of 2025, the
Applicant began recruiting members at Parliament. By December 2025,
it had attained the threshold
for recognition as a minority union and
began exercising organisational rights, including access to
Parliament’s premises.
[9]
On 5 December 2025, NUPSAW formally applied
to Parliament under
Section 21
of the LRA for all the organisational
rights provided for in that section. On 26 January 2026, NUPSAW
further requested engagement
with Parliament with a view to extend
its organisational rights beyond the
Section 12
right of accessed it
had obtained under the Parliamentary agreement and simultaneously
referred a dispute about organisational
right to the CCMA.
Parliament was not willing to deviate from the
terms of the existing agreement.
[10]
As at 22 April 2026, NUPSAW’s claimed
membership stood at 221 employees out of a bargaining unit of about
1017, representing
approximately 21.7%.
[11]
By then the sectoral bargaining process
involving NEHAWU and SALSEO, of which Parliament is a member, had
already culminated in
the conclusion of the sectoral agreement, which
covered the national and provisional legislatures. NUPSAW was neither
a party to
the negotiations nor formally notified at that stage.
[12]
As mentioned, that agreement introduced a
30% national membership threshold for
Section 12
and
13
rights
(Part
2
, Clause 1b), and clause 3(f), stated that it superseded all
recognition agreements concluded between NEHAWU and individual
legislatures.
It is common cause that NUPSAW does not meet that
national threshold.
[13]
On 24 April 2026, NEHAWU informed
Parliament that the Sector Agreement had been concluded and asserted
that prior recognition agreements,
including the parliamentary
agreement of 2012 had been superseded.
[14]
The parties are in dispute as to whether
NUPSAW had prior knowledge of the Sector Agreement before 7 May 2026.
NUPSAW maintains
that it did not but NEHAWU argues that the
negotiations were known to it by virtue of one its own
representatives in the negotiations
having subsequently becoming one
of NUPSAW’s shop stewards. This dispute is peripheral but forms
part of the context.
[15]
As
more fully described above, on 7 May 2026, Parliament notified NUPSAW
that its organisational rights were revoked with immediate
effect. It
is common cause that no prior notice was given to NUPSAW, no hearing
or consultation occurred, and no CCMA process under
section 21(11)
[1]
of the LRA was invoked. Parliament did not furnish NUPSAW with a copy
of the sectoral agreement either.
[16]
Following the letter of 7 May, NUPSAW’s
officials were denied access to Parliament’s premises. Between
7 May and 18
May 2026, NUPSAW took steps to challenge the decision,
including seeking legal advice and attempting to engage Parliament.
Due
to statutory requirements relating to service within Parliament,
permission to serve process was obtained only on
18
May 2026
, whereupon the application was
launched.
Urgency
[17]
The question of urgency falls to be
determined in accordance with Rule 38 of the Labour Court Rules and
the well-established principles
governing urgent applications. The
Applicant is required to demonstrate not only that the matter is
urgent in the ordinary sense,
but also that it will not obtain
substantial redress at a hearing in due course, that the urgency is
not self-created, and that
it has acted with the necessary expedition
once the cause of complaint arose.
[18]
In
the present matter, the foundation for urgency lies in the events of
7
May 2026
,
when Parliament addressed a letter to NUPSAW purporting to revoke its
organisational rights with immediate effect. That conduct
had direct
and immediate consequences. It is common cause that, following the
letter, the Applicant’s officials were denied
access to
Parliament’s precincts and were thereby precluded from carrying
out organisational functions on Parliamentary premises.
Those
functions include, inter alia, engaging with members, recruiting
employees, and representing members in workplace processes.
The
deprivation complained of is therefore not discrete or
self-contained; it is ongoing and continuous in nature. Each day that
the Applicant is excluded from the workplace reinforces the prejudice
suffered.
[19]
The nature of the harm is such that it
strikes at the core of the Applicant’s existence as a trade
union within the workplace.
Organisational rights are, by their very
character, relational and time-sensitive. They depend upon continuous
interaction between
the union and its members. The loss of physical
access to the workplace undermines the Applicant’s ability to
maintain and
grow its membership base and risks a progressive erosion
of its organisational presence. In circumstances of this kind, the
prejudice
is not easily quantifiable or capable of subsequent
restoration. Even if the Applicant were ultimately to succeed in
proceedings
brought in due course, the intervening loss of
organisational cohesion and member engagement cannot easily be
reversed.
[20]
The Applicant further relies on what it
contends is an entitlement to a period of notice before any
termination of its rights could
take effect. Whether or not that
contention is ultimately well-founded, it underscores the
time-sensitive nature of the dispute.
If the application is not
entertained on an urgent basis, and the matter is left to be
determined in the ordinary course, the period
which the Applicant
claims to be entitled to enjoy may well have expired before the issue
is finally adjudicated. In that event,
the Applicant would be
deprived of the very benefit it seeks to protect, rendering any
eventual relief hollow or academic.
[21]
The availability of alternative remedies
does not detract from the urgency of the matter. Although disputes
concerning organisational
rights may, in appropriate circumstances,
be referred to the CCMA for resolution, that process is not designed
to afford immediate
restorative relief. The timeframes ordinarily
associated with conciliation and arbitration render that mechanism
inadequate to
prevent the ongoing prejudice suffered by the
Applicant. By the time such proceedings are concluded, the harm
complained of will
have occurred and will, for all practical
purposes, be irreversible. It follows that the Applicant does not
have access to a satisfactory
remedy in due course.
[22]
NUPSAW argues that since it can take
approximately two months to obtain redress from the CCMA, the failure
to preserve the status
quo until will seriously undermine its
organisational activity in the parliamentary workforce.
[23]
NUPSAW’s case is that its rights were
terminated unilaterally, without recourse to any agreed or statutory
process, and in
reliance on a contested interpretation of the
applicable collective agreements. Where organisational rights are
abruptly withdrawn,
prompt judicial intervention can prevent the
situation from becoming entrenched before the lawfulness of the
conduct has been determined.
This consideration adds further weight
to the claim of urgency.
[24]
As to delay, the Parliament and Provincial
Legislatures Act 4 of 2004, required NUPSAW to obtain Parliament’s
prior permission
to serve the application. NUPSAW’s attorney
requested that permission on 14 May 2026 and lodged a formal request
on 15 May
2026. The union was ready to serve the application on 14
May and as soon as it received permission at 16h13 on 18 May 2026, it
did so that same day. In the circumstances, the delay is both
explained and reasonable.
[25]
To the extent that the Respondents contend
that the urgency is self-created, that argument cannot be sustained.
The Applicant’s
cause of complaint arose only upon receipt of
the letter of 7 May 2026, which effected an immediate termination of
its rights.
There is no basis to suggest that the Applicant could or
should have instituted proceedings at an earlier stage. The urgency
is
therefore a direct consequence of Parliament’s conduct, and
not the result of any dilatoriness on the part of the Applicant.
[26]
Finally, when the respective prejudice to
the parties is weighed, the balance favours the Applicant. If relief
is withheld, the
Applicant will continue to suffer ongoing and
irreparable harm through its exclusion from the workplace. By
contrast, if interim
relief is granted, Parliament and NEHAWU will be
required only to tolerate, for a limited period, the continuation of
a recognition
regime that existed prior to 7 May 2026, pending the
resolution of the underlying dispute. That prejudice is temporary and
reversible.
[27]
In all the circumstances, the Applicant has
established that the matter is urgent, that it will not obtain
redress in due course
which can substantially restore the value of
maintaining its right of access in the interim, that the urgency is
not self-created,
and that it has acted with the necessary
expedition. The requirements for urgency are accordingly satisfied.
[28]
The remaining question is whether NUPSAW has established a clear
right to the relief or a
prima facie
right, though open to
doubt.
Existence of a clear
right or a
prima facie
right, though open to doubt
[29]
NEHAWU argues that the relief sought is
only interim in name and therefore NUPSAW must demonstrate the
existence of a clear right,
an actual injury and the absence of an
alternative remedy which the union did not plead. In riposte, the
NUPSAW argues that the
interim relief sought determines none of the
substantive questions reserved to the arbitrator and merely preserves
the status quo
for as long as the proper forum takes to decide
remains interim relief. Moreover, insofar as NUPSAW argues that its
organisational
right of access could only be terminated on three
months’ notice in terms of clause 18.2 of the parliamentary
agreement,
it still lies within the power of parliament to give such
notice. Clause 18.2 provides that apart from cancellation for breach
of the agreement, either party may give the other three months’
notice of their intention to terminate the agreement.
[30]
Whether that provision is applicable as
between NUPSAW and Parliament is a matter of dispute. Be that as it
may, NUPSAW contends
that in any event, clause 4.6 of the
parliamentary agreement which provides for a union whose membership
falls below a threshold
it previously passed, must be given three
months’ notice to satisfy the threshold, during which it
continues to exercise
the rights it attained. It argues this
provision cannot simply be ignored and that it applies with even more
force to a purported
adverse variation of the applicable membership
threshold necessary to retain the right.
[31]
NUPSAW and Parliament argue that NUPSAW is
seeking to pre-empt the determination of whether the sectoral
agreement supersedes the
parliamentary one, in seeking to preserve
the status quo under the latter agreement. NUPSAW retorts that
the interim relief
sought merely leaves the determination of that
right hanging pending the outcome of the CCMA process, and all that
is necessary
is to establish a
prima
facie
right, though open to doubt.
[32]
NUPSAW also argues that it is questionable
that the sectoral agreement between NEHAWU and SALSEO, can simply
sidestep the requirement
in clause 19 and 21.2 of the parliamentary
agreement which require any contractual variation of that agreement
to be reduced to
writing and signed by the parties, which has not
occurred.
[33]
Lastly,
NUPSAW argues that it runs contrary to the principle that unilateral
enforcement of a disputed right flouts the principle
that self-help
as a way of resolving a dispute of right has been frowned upon by the
Constitutional Court
[2]
.Moreover,
in, the Constitutional Court underscored that the law does not
countenance self-help as a means of resolving disputes
over rights.
The Respondents’ position entails that Parliament was entitled
to resolve a disputed legal question in its own
favour and to act
upon it immediately, thereby extinguishing rights before
adjudication. In any event, NUPSAW contends that where
rights derive
from contract, the law requires that termination of those rights
must comply with contractual or lawful procedural
mechanisms
[3]
. In
(2022) ZASCA
162
, the Supreme Court of Appeal reaffirmed that a contract must be
terminated in accordance with its terms, failing which the
termination
is ineffective.
[34]
An alternative source of a right to the
relief sought is based on the principle of
stipulatio
alteri.
NUPSAW contends that when it
accepted the benefit of Section 12 rights afforded it by the
parliamentary agreement, cannot have the
right it obtained thereby
summarily extinguished.
[35]
Quite apart from these considerations, the
application and interpretation of the collective agreements in
question is first and
foremost a matter for the CCMA or relevant
bargaining council to determine under s 24 of the LRA, and it would
undermine that dispute
resolution machinery for this court to usurp
that statutorily assigned mechanism by attempting to pronounce on the
validity of
the arguments raised.
[36]
I am satisfied that, even though I have
doubts about the cogency of some of the arguments advanced in favour
of the invalidity of
Parliament’s purported termination of
NUPSAW’s Section 12 rights under the parliamentary agreement,
there is sufficient
merit in the arguments to establish the existence
of a
prima facie
right to continue to exercise those rights in the absence of
Parliament complying with a valid procedure to terminate them.
Conclusion and Costs
[37]
In the circumstances, I am satisfied NUPSAW is entitled to relief,
subject to a qualification that any dispute it has
not yet referred
to the CCMA concerning the NUPSAW’s right to continue to
exercise the Section 12 rights which Parliament
purported to revoke
on 7 May 2026, must be referred to it by 17 June 2026.
[38]
It must be mentioned that it is not appropriate to make any comment
on whether this court is competent to determine any
final relief in
part B as a forum of first instance, as it is not necessary to do so
at this stage. Accordingly, the reference
to the final determination
of Part B in the order does not mean that this court has the
necessary power to do so.
[39]
In the context of this being an interim order, it would not be
appropriate in my view to make any costs order, apart from the fact
that the dispute arises in the context of collective agreements which
have regulated their relationship.
Order
1.
The application is heard as one of urgency
in terms of Rule 38 of the Labour Court Rules and any non-compliance
with the Rules relating
to service and time periods is condoned.
2.
Pending the final determination of Part B
of this application and disputes referred for determination to the
CCMA by 17 June 2026
under Section 21 and, or alternatively, Section
24 of the Labour Relations Act, 66 of 1995 (‘the LRA’),
which concern
the Applicant’s right to continue to exercise its
right of access under Section 12 of the LRA that was purportedly
revoked
with immediate effect by the First Respondent on 7 May
2026:
2.1
The First Respondent is interdicted and restrained from giving effect
to the purported revocation of the Applicant's right of
access to
Parliament communicated by letter dated 7 May 2026 from Ms Santie
Myburgh to Mr Vuyani Shwane ("the revocation letter").
2.2
The First Respondent is directed to restore,
and
thereafter to maintain, the Applicant's right of access to the
precincts of Parliament on the same terms and conditions as obtained
immediately prior to 7 May 2026, including, without limitation:
2.2.1 the right of
the Applicant's officials and office bearers to enter the precincts
of Parliament for the purposes of
representing members, attending to
union business, and exercising the rights conferred by
section 12
of
the
Labour Relations Act 66 of 1995
;
2.2.2 the right of
the Applicant to convene general meetings with its members at the
precincts of Parliament, as previously
arranged with the First
Respondent;
2.2.3 the right of
the Applicant's officials to communicate with members at the
precincts of Parliament, subject to the standard
security and
operational protocols of the First Respondent.
3.
No order is made as to costs.
R
G Lagrange
Judge of the Labour
Court of South Africa
Appearances:
For the
Applicant:
--- C de Kok
Instructed
by:
--- Pam Melapi Attorneys
For
the First Respondent: --- L
McFarlane of Deneys
For
the Fourth Respondent: ---- C S Hendricks of Marais
Muller Hendricks Inc.
[1]
Section 21(11)
of the LRA states:
‘
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.’
[2]
See
Ngqukumba
v Minister of Safety and Security
2014
(5) SA 112
(CC) at paragraphs 11,17 and21.
[3]
See
Datacentrix
(Pty) Ltd v O-Line (Pty) Ltd
(891/2021)
[2022] ZASCA 162
(25 November 2022) at paragraphs 13-14.