REPUBLIC OF SOUTH AFRICA
~
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
1. REPORTABLE: Y.es-/ NO
2. OF INTEREST TO OTHER JUDGES: Vi!SINO
3. REVISED: YES / NO
DATE: \'\ J .. -.-. 1.&c-Z..'-
SIGNATURE OF JUDGE:
In the matter between:
KGOMOTSO MODISELLE
LERATO SIMON THAGE
and
NATIONAL ENTERPRISES WORKERS UNION
PHAUWE PHOSE
DEPARTMENT OF EMPLOYMENT AND LABOUR
Heard: 1 June 2026
Delivered: 19 June 2026
HR FOURIE, AJ
JUDGMENT:
CASE NO: 2025-237972
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
[1] The applicants seek the provisional sequestration of the first respondent. The
applicants were previously employed by the first respondent as union officials, but are
cited in their capacity as creditors of the first respondent. They represent themselves
in this application.
[2] The first respondent is the National Enterprises Workers Union (LR 2/6/2/3338),
a trade union apparently registered in terms of the Labour Relations Act.1 The second
respondent is the Secretary General of the first respondent, and the third respondent
is the Department of Employment and Labour. The second and third respondents are
joined for their potential interest in the matter. The respondents were given notice of
the application but did not oppose.
[3] The applicants state that the first respondent is indebted to them in the amount
of R188 808.64, excluding interest at 15.5% per annum. The origin of the debt is two
default Arbitration Awards issued by the Commission for Conciliation, Mediation and
Arbitration ('the CCMA') in favour of the first applicant on 1 May 2025 in the amounts
of R 15 456.60 and R 135 140.61, respectively. A third Arbitration Award was issued
in favour of the second respondent on 28 March 2025 in the amount of R 38 211.88.
The first respondent has failed to pay the amounts or any part thereof.
[4] The applicants explain that they initiated proceedings before the CCMA to claim
outstanding salary payments owed to them by the first respondent. Their written
demands for payment, made after the due date as stipulated by the Awards had
passed, were ignored. They obtained certification of the Awards in their favour on 26
May 2025 and 8 May 2025, respectively. The Sheriff for Pretoria East served the
warrants of execution, and his returns of service indicated that the premises of the first
respondent are "very scantily furnished". The applicants thereafter obtained an order
in the Labour Court for the attachment and seizure of the first respondent's bank
account. That, too, yielded no results. The applicants concluded that the first
respondent is unable to pay its debts and is insolvent.
respondent is unable to pay its debts and is insolvent.
[5] The applicants further state that they reside within the area of jurisdiction of this
court, and the first respondent's head office is situated in Arcadia, Pretoria.
66 of 1995
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[6] A more vexing question is whether the High Court has the necessary jurisdiction
to hear an application relating to the insolvency status of a trade union, or whether it
is a matter that is vested in the sole jurisdiction of the Labour Court.
[7] Mr. Modiselle argued that section 157(2) of the Labour Relations Act affords a
litigant the choice between the Labour Court and the High Court. Because the Labour
Court cannot address certain aspects of insolvency law as it determines disputes
between employers and employees, whereas the High Court determines
debtor/creditor disputes, the application is correctly brought before the High Court.
[8] For the reasons that follow, I do not agree with Mr. Modiselle's submission that
the Labour Court and the High Court have concurrent jurisdiction over the winding-up
of a trade union.
[9] The jurisdiction of the Labour Court is provided for in section 157 of the Labour
Relations Act. Sub-sections (1) and (2) are relevant:
"(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.
(2) The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental right
entrenched in Chapter 2 of the Constitution of the Republic of South
Africa, 1996, and arising from-
(a) employment and from labour relations;
(b) any dispute over the constitutionality of any executive or
administrative act or conduct, or any threatened executive or
administrative act or conduct, by the State in its capacity as an
employer; and
(c) the application of any law for the administration of which
the Minister is responsible."
[1 OJ A registered trade union is a body corporate created and governed by Chapter
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VI of the Labour Relations Act. Part A of Chapter VI, comprising sections 95 to 106, is
particularly relevant in the present context. It addresses, inter alia, the regulation of
trade unions from inception to dissolution.
[11] Section 104 reads as follows:
"Any person who seeks to wind-up a trade union or employers' organisation by
reason of insolvency must comply with the Insolvency Act, 24 of 1936, and, for
the purposes of this section, any reference to the court in that Act must be
interpreted as referring to the Labour Court.» (Emphasis added).
[12] This invokes section 157(1) and presents a prima facie indication that the
present application is in the wrong forum and ought to have been brought before the
Labour Court. I accordingly consider the relevant section in its context in the Act.
[13] Section 103(1) empowers the Labour Court to order a trade union to be wound
up if (1) the trade union has resolved to wind-up its affairs and has applied to the Court
for an order giving effect to that resolution, or (2) the registrar or any member of
the trade union has applied to the Court for its winding up and the Court is satisfied
that the trade union for some reason that cannot be remedied is unable to continue to
function. (Emphasis added).
[14) Section 103A provides for the appointment of an administrator of a trade union
by the Labour Court where certain specific circumstances are established. (Emphasis
added).
[ 15] Sections 103 and 103A differ from winding-up in terms of the law of insolvency
in that, under section 103(3), the Labour Court is empowered to appoint a suitable
person as the liquidator, and under section 103(4), the registrar of the Labour Court
must determine the liquidator's fees. The latter determination may be reviewed by the
Labour Court in chambers. Compare section 103A(4)(a) and (b). It is settled law that
the power to appoint a liquidator under the Companies Act vests in the Master and
the power to appoint a liquidator under the Companies Act vests in the Master and
that the court has no power to appoint a liquidator. Ex parte the Master of the High
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Court of South Africa (North Gauteng)2 at [33].
[16] Because section 104 makes the Insolvency Act applicable, the impression may
be created that the High Court has jurisdiction to make an order in terms of that
section. This is dispelled by section 106.
[17] In section 106, the registrar of the Labour Court is enjoined to notify
the registrar of labour relations ff the Court ordered a registered trade union to be
wound up in tenns of section 103 or 104 and when the registrar receives a notice from
the labour Court in terms of section 106(1), the registrar must cancel the registration
of the trade union by removing its name from the appropriate register. (Emphasis
added).
[18] The Labour Court and the registrar of the labour Court have been designated
specific and material roles in the winding-up of trade unions. If a creditor were to be
permitted to select to approach the High Court instead, their roles would be
undermined. It appears that the process applicable to insolvent trade unions is sui
generis.
[19] It is not insignificant that the applicants invoked the dispute resolution
mechanism provided for in Part A of Chapter VI I of the Act when they approached the
CCMA, and subsequently attempted to obtain payment.
[20] In the premises, I conclude that it is the Labour Court that is seized with the
necessary jurisdiction to adjudicate this application, to the exclusion of the High Court,
and thus that the applicants' reliance on section 157(2) must fail.
[21] Another aspect that can conveniently be addressed together with jurisdiction is
the nature of the relief sought.
[22) The applicants seek the sequestration of the first respondent. Section 104
refers to "winding-up", as do section 103(1) and 103(3) and section 106. The term
"winding-up" is not defined in the labour Relations Act. It is not defined in the
2 2011 (5) SA 311 (GNP)
5
Companies Act,3 but it is the terminology that is used, interchangeably with
"liquidation", in relation to a company, close corporation or other corporate entity. As
mentioned before, a registered trade union is a body corporate. In contrast, the term
"sequestration" is used in relation to a natural person or other debtor to which the
Insolvency Act4 only applies, such as a trust or a partnership.
(23) In SA Solidarity Union and Others v Iliad Africa Trading (Ply) Ltd and Another6
the Labour Court applied the Insolvency Act only and granted a winding-up order.
However, the reference to the Insolvency Act in section 104 does not necessarily
exclude the application of the Companies Act, because section 339 of that Act makes
the law relating to insolvency applicable to winding-up, where specific provision is not
made by the Companies Act.
[24] I need not make any finding on whether a trade union ought to be wound up
under the Insolvency Act alone or under the Insolvency Act read with the Companies
Act. I also make no finding on the merits of the applicants' application.
[25) The applicants will have to bring the application de novo in the Labour Court,
Johannesburg, having made the necessary changes to their papers.
Order
[26) The following order is made:
(a) The application is removed from the roll.
(b) No order as to costs.
HR FOURIE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the Applicants: Mr. Kgomotso Modisette in person
For the Respondents: No appearance
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61 of 1973
24 of 1936
(J1229/10; J1181/10) (2012] ZALCJHB 144 (17 February 2012)
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