THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
In the matter between:
THE COMMERCIAL STEVEDORING AGRICULTURAL
& ALLIED WORKERS UNION
and
COMMISSION FOR CONCILIATION ,
MEDIATION AND ARBITRATION
COMMISSIONER RANDALL N.O.
LADISMITH CHEESE (PTY) LTD
Heard: 26 August 2026
Delivered: 27 August 2026
JACOBSAJ
JUDGMENT
Not Reportable
Case no: C480/2024
Applicant
First Respondent
Second Respondent
Third Respondent
Introduction
[1] This is an opposed review application.
[2] The Applicant seeks an order:
2.1 Reviewing and setting aside the arbitration award issued by the Second
Respondent under the auspices of the First Respondent on 18
November 2024 under case number WEGE1786-24;
2.2 Referring this matter back to be adjudicated by an arbitrator other than
the Second Respondent; alternatively, substituting the award of the
Second Respondent with an award that the court deems fit;
2.3 Costs against any party who opposes the application; and
2.4 Further and/or alternative relief.
[3] This matter concerns the interpretation of a collective agreement.
Preliminary issues
[4] The Third Respondent raised an objection to the premature filing of the
Applicant's heads of argument and the failure by the Applicant to file the
requisite notice in term of Rule 37(20)(b).
[5] The Applicant's heads of argument were filed on 4 June 2025, before Rule
37(20) was complied with.
[6] On 1 O June 2025 the Third Respondent filed an objection in terms of Rule
57(2)(b).
[7] On 13 June 2025 the Third Respondent filed a notice in terms of Rule 37(20)(b),
followed by a condonation application on 20 June 2025.
[8] The Third Respondent filed its answering affidavit in the review application and
an answering affidavit in the condonation application on 3 July 2025.
[9] After hearing the parties, condonation for the late filing of the Rule 37(2) notice
was granted. Although the delay was almost 4 months, and the explanation
therefore not wholly convincing, the absence of prejudice, the interests of
justice and the need to bring finality to the dispute between the parties, weighed
in favour of granting condonation.
Historical context
[1 O] The history of the matter is mostly common cause.
[11] The Applicant is a recognised trade union which enjoys organisational rights
and an established relationship with the Third Respondent.
[12] On 19 June 2024, Mr Karel Swart, the national organiser for the Applicant,
attended the premises of the Third Respondent for a pre-arranged visit with
union members.
[13] Upon arrival, security staff required Mr Swart to undergo a breathalyser test in
accordance with recently introduced access control procedures at the
premises.
[14] Mr Swart refused to undergo the test, and he was denied access to the
premises. The arranged meeting could not proceed.
[15] In debating the matter, the Third Respondent advised that all contractors,
visitors and categories of employees are subjected to breathalyser tests as part
of its admission requirements. The Applicant was referred to clause 5.2.6 of the
collective agreement between the parties. This clause determines that the
union will adhere to any reasonable security or access control measures of the
employer and will not disrupt the normal and safe functioning of the workplace.1
[16] The Applicant was of the opinion that the above clause could not mean what
the Third Respondent suggested, and referred a dispute to the CCMA, seeking
interpretation of the relevant clause in the collective agreement.
1 The Afrikaans text reads: Die vakbond sat voldoen aan enige redelike sekuriteits of
toegangsvereistes van die werkgewer en mag nie die normale en veilige werking van die
werksp/ek ontwrig nie.
[17] The arbitration hearing took place on 5 November 2024, and the Second
Respondent (the Arbitrator) issued an award on 18 November 2024.
The arbitration award
[18] In his award the Arbitrator found that the Applicant conceded that it had no
objection to security checks being done as part of access control at the
premises.
[19] The Arbitrator's ruling confirmed the interpretation that the Third Respondent
attached to the clause in question.
[20] The Arbitrator found that it was difficult to see how the requirement for a
breathalyser test, falls outside the ambit of "reasonable security or access
control requirements", and concludes that the Third Respondent correctly
interpreted the relevant clause to include the right to subject visitors to
breathalyser tests.
Grounds for review
[21] The Applicant contends that the Arbitrator erred and that he committed gross
misconduct in finding that clause 5.2.6 was clear and unambiguous.
[22] The Applicant submits that the Arbitrator committed misconduct in not inquiring
into the intention of the parties at the time of conclusion of the agreement.
Test on review
[23] The test on review to be applied in a matter such as this, is the well-established
reasonableness-test and will not be discussed in detail. Essentially the court
must determine whether or not the decision reached by the arbitrator was one
that a reasonable decision maker could not reach. In other words, whether or
not the award falls outside of the range of reasonableness.2
2 Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC);
Fidelity Cash Management Service v Commission for Conciliation , Mediation and Arbitration
and Others (2008) 29 ILJ 964 (LAC).
The parties' submissions
[24] For the Applicant it was argued that the collective agreement does not
specifically provide for the union to subject themselves to breathalyser tests.
They were not in the past required to undergo such tests, and on the day in
question, the collective agreement was not cited as the reason for expecting Mr
Swart to undergo such a test.
[25] On behalf of the Applicant, it was also conceded before this court that it had no
objection to security checks being done as part of access control at the
premises.
[26] The Applicant suggested that the employer's interpretation of clause 5.2.6, as
confirmed by the Arbitrator, would allow the employer to continuously extend
its list of security measures, and that this would be untenable.
[27] For the Applicant it was submitted that the Third Respondent was obliged to
negotiate with the union before an additional safety or access control measure,
such as a breathalyser test, may be introduced.
[28] It was suggested on behalf of the Applicant that this matter did not concern an
issue of safety policy, but that it concerned the question whether the collective
agreement allowed the introduction of breathalyser testing.
[29] The Third Respondent submitted that it is entitled to introduce security and
admission requirements to control access to its premises. The breathalyser
requirement applies to all visitors and contactors to the premises and is not
unreasonable or unlawful.
[30] The Third Respondent's position is that the provisions of clause 5.2.6 of the
collective agreement has direct application and requires the Applicant to comply
with the particular security and admission requirement.
Evaluation
[31] The subject matter of this dispute is surprisingly frivolous.
[32] Access control measures such as the requirement to undergo breathalyser
tests are not uncommon. Such a requirement is usually motivated by safety and
security concerns, something any business is entitled, if not obliged, to
implement.
[33] The adoption of reasonable safety and access control measures are not issues
that require negotiated consent from the union. Clause 5.2.6 in this instance
also clearly acknowledges the employer's right to introduce reasonable security
or access control measures, and the union's undertaking to adhere to such
measures.
[34] The objection to undergo breathalyser testing is difficult to comprehend. The
test is no more invasive than physical searches, something the Applicant
agreed were reasonable. The requirement for all visitors to undergo a
breathalyser test cannot be regarded as a personal affront to the Applicant or
its officials.
[35] Clause 5.2.6 was drafted in broad enough terms to include additional security
measures that may be introduced over time to address safety concerns. Safety
and access control measures protect the business and employees alike. These
measures are not aimed at insulting or inconveniencing specific individuals.
[36] The Arbitrator was correct and his finding that the clause was clear and
unambiguous, and that it was reasonable. There was no need to make further
inquiry into the initial intention of the parties.
[37] This court is charged with dealing with numerous serious disputes on a daily
basis. It is disappointing that the CCMA and in this court are forced to dedicate
time and resources to deal with such a trivial matter. If not for the strict principle
set in matters such as National Union of Mineworkers obo Masha and Others v
SAMANCOR Limited (Eastern Chromes Mines) and Others3 a cost order would
have been made against the Appli cant.
3 (CCT 154/20)(20 21] ZACC 16; (2021) 42 ILJ 1881 (CC) ; [2021] 9 BLLR 883 (CC); 2021 (10)
BCLR 1191 (CC).
[38] In the result, the following order is made:
Order
1. The application is dismissed.
2. There is no order of cost.
Appearances:
For the Applicant: - Adv N Simmons
Instructed by: - Seri Law Clinic
For the Third Respondent: - Ms J Pead of Maserumele Attorneys
W Jacobs
of South Africa