Auto-X (Pty) Ltd v National Union of Metal Workers of South Africa (D450/2024) [2024] ZALCD 31 (11 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Case No: D450/2024

Not Reportable

In the matter between:

AUTO-X (PTY) LTD Applicant and

NATIONAL

UNION OF METAL WORKERS

OF

SOUTH AFRICA First Respondent

EMPLOYEES

OF THE APPLICANT

LISTED IN ANNEXURE “SN1” Second and Further Respondents

Heard: 5 September 2024

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date

and time for handing-down is deemed 10h00 on 11 September 2024.

JUDGMENT

ALLEN-YAMAN J

Introduction

[1] The applicant applied for an order, inter alia, interdicting the strike currently being undertaken by the second and further respondents. It sought an order in the following terms,

‘1. Directing that this application be heard as one of urgency as provided for in terms of Labour Court Rule 8 and that the Applicants’ [sic] failure to comply with the normal time periods, forms and services as provided for in terms of Labour Court Rule 7 be condoned.

2. That a rule nisi be issued, with return day to be determined by the above Honourable Court, calling upon the First and Further Respondents to appear before the above Honourable Court and show cause why a final order should not be granted in the following terms:-

2.1 In relation to the strike that commenced on 2 September 2024 that it be declared that:

2.1.1 The certificate of non-resolution, issued by the Motor Industry Bargaining Council – Dispute Resolution Centre under case number MIDB 22948 on 4 March 2024, has become stale and of no force and effect, and the strike is therefore in contravention of section 64(1)(a)(i) of the Labour Relations Act 66 of 1995.

2.1.2 The strike is in support of issues in dispute in respect of which the Respondents cannot embark on a strike based on the provisions of clause 4.1 of the MIBCO Agreement read with section 65(1)(c) of the Labour Relations Act 66 of 1995.

2.1.3 The strike is aimed at compelling the Applicant to engage in second tier bargaining which is prohibited in terms of clauses 3 and 4.2 of MIBCO Main agreement and as such the strike is in support of an unlawful demand.

2.1.4 There is no strikable dispute in relation to the strike demand that the Applicant should consider giving employees, who purportedly cannot work at the new premises, voluntary retrenchment packages because all of the employees are capable of working at the new premises.

2.2 That it be declared that the strike that commenced on 2 September 2024 is unlawful, unprotected and prohibited.

2.3 That it be declared that the picket that commenced on 2 September 2024 is unlawful, unprotected and prohibited because it is not conducted in support of a lawful strike.

2.4 That it be declared that the Respondents are interdicted and restrained from embarking and/or continuing with the strike and picket that commenced on 2 September 2024.

2.5 Alternatively, that it be declared that:-

2.5.1 The Respondents are in breach of the picketing rules dated 4 March 2024.

2.5.2 That the Respondents are interdicted and restrained from coming within 50 (fifty) metres of the premises or working sites of the Respondents [sic].

2.5.3 That the Respondents are interdicted and restrained from in any way harming, threatening, damaging, intimidating, harassing, and/or assaulting any clients, customers, suppliers, vehicles, non-striking employees, replacement labourers and goods of the Applicant.

2.5.4 That the Respondents are interdicted and restrained from coming within [sic] barring access to the premises and sites of the Applicant.

2.6 The Respondents should be ordered to jointly and severally and in solidum pay the costs of the application, only in the event of it being opposed by such Respondents.

3. That the rule nisi issued in terms of clauses 2.1 to 2.5.4 as set out above shall operate as an interim order with immediate effect, and the Respondents shall immediately be obliged to comply with the same, and such interim order shall be immediately executable, pending the return date.

4. That such further and/or alternative relief be afforded to the Applicants as the above Honourable Court may deem necessary.’

[2] The respondents delivered an answering affidavit. At the hearing of the application Mr Orton, who appeared on behalf of the applicant, indicated that the applicant did not intend to deliver a replying affidavit. This being the case, it was agreed that the application would be determined finally, without the need for a rule nisi to be issued.

[3] At the outset, the applicant abandoned the relief it had sought in paragraph 2.1.1 of its Notice of Motion.

[4] During the course of argument it became apparent that the applicant had delivered a supplementary affidavit the day prior to the application having been heard, but that such affidavit had not been placed in the court file. In view of the fact that neither the leave of this court had been sought or granted, nor the consent of the respondents obtained for its delivery, and the respondents had not been afforded an opportunity to deliver an affidavit in response thereto, the applicant was not, without more, entitled to rely thereon.

[5] This ultimately led to the applicant seeking an adjournment of the matter to enable it to apply for leave to deliver a supplementary affidavit, although seemingly not the supplementary affidavit which it had already delivered. In motivating its application for an adjournment, Mr Orton indicated that the purpose to be served thereby was to introduce certain video footage. Mr Schumann, who appeared for the respondents, opposed the adjournment of the application. It was apparent to this court that the evidence which was sought to be introduced by way of the proposed supplementary affidavit had been available to the applicant at the time when the application was initiated, and that the applicant had elected not to rely on it at the outset. It was also the view of this court that it would be prejudicial to both parties for the issue of the legality of the strike to remain undetermined for an indefinite period of time, and that the prejudice occasioned to the respondents by the creation of a situation uncertainty as a result of delay would not be ameliorated by the payment of the wasted costs which had been tendered by the applicant. Finally, as the issue which was sought to be amplified related only to the respondents’ alleged conduct in the course of the strike the applicant would nevertheless be at liberty to initiate any further application it deemed necessary in the event that such issue was not to be decided in its favour in the present instance, the applicant would suffer no prejudice by the refusal of the application for the postponement. In light of these considerations, the application for an adjournment of the application was refused.

[6] This court is accordingly required to determine, in general terms, whether the strike currently undertaken by the respondents is one permissibly undertaken in consideration of the clauses of the MIBCO Main Agreement upon which the applicant relies and, if so, whether the respondents (or certain of them) have, in the course of the strike thus far, breached the terms of the Picketing Rules.

Background

[7] At the end of January 2024 the applicant relocated its business from Westmead, Pinetown to Riverhorse Valley, Durban, a distance of some 27 kilometres. The second to further respondents had expressed concerns about the move prior to it having been effected, which concerns were not allayed upon the happening thereof. These related to both the difficulties and costs associated with procuring transport to the new premises, explained by the respondents in their answering affidavit,

‘10.4 Grave concerns were expressed on behalf of the employees, and it was explained to the Applicant’s management that the Pinetown / Westmead Industrial area was very easily accessible, but it would be difficult for the employees to procure public transport from their homes in and around the Pinetown area to the Riverhorse Industrial Area.

10.5 In addition, it was explained that it was dangerous to wait at taxi stops after the hours of darkness and that where employees finished work late, the extended travelling time and waiting for public transport was problematic. (if such transport was available at all at such times.)’

[8] As the issues remained unresolved the respondents referred a dispute to the MIBCO Dispute Resolution Centre. Categorised as a Mutual Interest dispute, the respondent described the issue in its referral,

‘The Employer has unilaterally decided to relocate without advising / informing the union. The union initiated the consultation process hence the relocation will affect the workers. The Employer is refusing to meet he [sic] relocation demands proposed by the workers / union.’

When conciliation failed, a certificate of non-resolution was issued and Picketing Rules were agreed to on 4 March 2024.

[9] Further engagements between the parties yielded no positive outcome. This led the first respondent to having issued a strike notice on 30 August 2024. Having advised the applicant of the intention of its members to commence industrial action on 2 September 2024, its demands were reiterated:

‘4.1 Demand of R150 per day – Relocation Allowance

4.2 Demand consideration of VSP to those who cannot relocate

4.3 Demand of transportation to all those who return back from deliveries after 19h00pm.’

[10] The present application was initiated on the day on which the strike commenced.

Analysis

[11] The issue relating to the efficacy of the certificate of non-resolution having been abandoned, the first issue for determination concerns the effect of clauses 3[1], 4.1 and 4.2 of the MIBCO Main Agreement, which read,

‘3.

CENTRALISED BARGAINING

Bargaining within the Motor Industry, as defined in the Main Collective Agreement, takes place at centralized level. There shall be no two-tier bargaining on any matter of mutual interest, other than in Sector 6 where the Parties may engage in plant level negotiations on actual wages.

4.

PEACE CLAUSE

4.1 The parties agree not to embark on and/or participate in any form of industrial action as a result of any dispute on wage and / or salary adjustments and other conditions of employment relating to any sector or chapter in this Agreement: Provided that an employer has implemented the wage and/or salary adjustments and other agreed conditions of employment matters on or before promulgation. Participation in any form of industrial action after the date of the settlement Agreement until 31 August 2025 shall be unprotected.

4.2 Provided further, that Bargaining within the Motor Industry, as defined in the Main Collective Agreement, takes place at centralized level. There shall be no two-tier bargaining on any matter of mutual interest, other than in Sector 6 where the Parties may engage in plant level negotiations on actual wages, which negotiations shall be governed by the provisions of the LRA and shall not be conducted under the auspices of MIBCO. In particular, this clause shall not impact on the DRC jurisdiction to entertain disputes referred to it, arising out of such negotiations at plant level in respect of Sector 6 establishments.’

[12] It is the applicant’s case that the aforementioned clauses render the strike unlawful. In the first instance, the applicant asserts that the strike is in support of issues in respect of which the second respondent is precluded from participating in strike action by virtue of the provisions of clause 4.1 read with section 65(1)(a)[2] of the LRA. It contends further that the strike is aimed at compelling the applicant to engage in second tier bargaining, which

is prohibited in clauses 3 and 4.2 of the Main Agreement and is accordingly in support of an unlawful demand. This last mentioned

assertion was extrapolated from the reasoning that, distinct from the specific demands made, the purpose of the strike was to compel the applicant to engage in collective bargaining, a process prohibited by the injunction against two-tier bargaining, the effect of which is that the demand itself is unlawful. In opposition, the respondents advanced a different interpretation.

[13] Insofar as the applicant’s first objection to the legality of the strike is concerned, section 65(1)(a) of the LRA provides that, ‘No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if that person is bound by a collective agreement that prohibits a strike or a lock-out in respect of the issue in dispute.’

[14] Whilst it is evident that the parties to the Main Agreement intended to curtail the right of workers bound thereby to strike, it is not evident that the clause was intended to operate as an absolute prohibition. Properly construed, the prohibition contained in clause 4.1 relates to wage and salary adjustments as well as other conditions of employment, but only to the extent that such other conditions of employment are, in fact, regulated by the Main Agreement itself. This is evident from the wording, ‘relating to any sector or chapter in this Agreement.’ Whilst it was accepted by the respondents that they are employed within a sector governed by the Main Agreement, they did not accept that the issues in dispute were dealt with or governed by any chapter therein. The applicant contented itself with arguing for a meaning that accorded with a blanket ban on industrial action and did not endeavour to demonstrate that the respondents’ demands related to issues which were, in fact, regulated by the Main Agreement. On the facts of the matter, this court is satisfied that the origin of the demands had been the relocation of the applicant’s premises and the demands were therefore not demands for increased wages, disguised as something else.

[15] It is accordingly the finding of this court that the limitation imposed on the right of employees who are governed by the MIBCO Main Agreement to participate in industrial action (save for those employed in Sector 6 in respect of whom different provisions appear to be operable) is curtailed to matters regulated by the Main Agreement itself. As the demands were not regulated by the Main Agreement, clause 4.1 does not trigger the operation of the prohibition envisaged in s65(1)(a) of the LRA.

[16] As regards the second issue the applicant’s case is that the purpose of the strike is to compel collective bargaining; second tier bargaining is prohibited in terms of clauses 3 and 4.2; and the strike is accordingly in pursuance of an unlawful demand. This argument derives from the interpretation given by it to the relevant clauses of the Main Agreement, construed by the applicant to mean a prohibition against any bargaining outside the centralised bargaining process.

[17] The respondents, on the other hand, contend that the prohibition relating to two-tier bargaining must be interpreted to limit the effect thereof only to those issues which are negotiated centrally, being the conditions of employment which are intended to operate nationally.

[18] The proposition that the respondents’ demand is demand to bargain falls to be rejected. The respondents’ demands are clear, and have been set out above. The fact that the respondents seek to compel the applicant’s capitulation to their demands though the mechanism of a strike is an ancillary consequence of the demands themselves, and is not the object of the demands. The fact that an ancillary consequence of the demands may lead to a process of forced bargaining does not detract from the substance of the actual demands. Conversely stated, no acquiescence on the part of the applicant to bargain with the respondents will result in the termination of the strike by virtue of its objectives having been met, that will only be achieved by the applicant’s agreement to the respondents’ substantive demands, as set out in the first respondent’s strike notice.

[19] The prohibition against two-tier bargaining is premised on the principle that bargaining within the Motor Industry is required to take place at a centralised level. Absent centralised bargaining having taken place in respect of any particular issue, bargaining in relation to such issue at plant level would remain at a single tier, wholly unaffected by any centralised bargaining processes and accordingly unaffected by the prohibition against two-tier bargaining. Any other interpretation would lead to the conclusion that no grievance or demand at the level of an individual plant could ever be resolved by way of strike action as such an issue would be required to be dealt with through the centralised bargaining structure, necessitating the involvement of all the parties to the Main Agreement, a clearly untenable proposition.

[20] Moreover, to the extent that meaning of the aforementioned clauses may be considered to be ambiguous, the Main Collective Agreement was promulgated by way of Notice No. R3326 in Government Gazette number 48340 on 31 March 2023 and has the status of subordinate

legislation.[3] S39(2) of the Constitution requires every court when interpreting legislation to promote the spirit, purport and objects of the Bill of Rights. In the circumstances, any ambiguity is required to be interpreted in favour of and consonant with the protection given to the respondents’ right to strike in terms of s23(2)(c) of the Constitution.

[21] It is accordingly the further finding of this court that the respondents’ demands do not constitute an infringement on the prohibition against two-tier bargaining as set out in paragraphs 3 and 4.2 of the Main Agreement, and are accordingly not unlawful.

[22] The final issue for consideration is whether the respondents have contravened the Picketing Rules which were issued by the Dispute Resolution Centre on 4 March 2024, or otherwise behaved in a manner which behoves the granting of an interdict.

[23] Having commenced the strike on 2 September 2024, the respondents picket commenced contemporaneously therewith. The applicant alleged that the respondents:

- did not confined the picket to the physical parameters previously agreed to;

- threatened service providers in an attempt to prevent them from entering the applicant’s premises;

- threatened non-striking employees in an attempt to prevent them from working; and

- threatened service providers responsible for the transportation of the applicant’s non-striking employees in an attempt to prevent them from leaving the premises.

[24] The applicant’s founding affidavit was deposed to by its Group HR Executive, Mr Sibusio Ngcobo. He appears to have had no personal knowledge of the incidents recounted by him and upon which the applicant relied to substantiate its assertions that the respondents had acted other than the Picketing Rules required of them, but referred to five affidavits deposed to by other individuals, annexed to the founding affidavit.

[25] Four of those affidavits contained statements concerning certain events which were alleged to have taken place, deposed to by three of the applicant’s employees together with one by an employee of another entity, Value Logistics. The fifth was termed a confirmatory affidavit, was deposed to by Mr Lithemba Mthembu on 2 September 2024, and was annexed to the founding affidavit.

[26] Insofar as the allegations contained in the four stand-alone affidavits are concerned, they were hand-written and the wording thereof was, at times, indistinct. As the applicant neither transcribed nor sought to explain the contents thereof, this court was left to endeavour to decipher their contents. From that which has been discerned:

- Mr Mtobisi Madlala alleged that the striking employees stopped him from entering the company.

- Mr Sifiso Fakade alleged that the striking employees told him not to enter the premises.

- Mr Dumisani, whose surname was not given, alleged that after he had gone to work on 2 September 2024 the striking workers told him (and others) to go.

- Mr Preshayen Mariah alleged that after he had collected employees and dropped them at the applicant’s depot, his life was threatened by the striking workers who told him they were, ‘going to get’ him and ‘going to hurt’ him, and that he would pay for bringing staff to work. As the strikers were coming close to his car, he drove off.

[27] In substantiation of the assertions made by Mr Mariah, the applicant relied on two photographs extracted from video footage taken at its main gate which were said to demonstrate the activities of Mr Sandile Thusani, one of the first respondent’s strike marshals, in close proximity to Mr Mariah’s vehicle whilst pointing and shouting.

[28] As regards the confirmatory affidavit deposed to by Mr Mthembu, this constituted no more than an allegation that the deponent had read the founding affidavit deposed to by Mr Ngcobo and that he confirmed the correctness of the averments therein in so far as it related to him. It is evident that the affidavit deposed to by Mr Mthembu could not serve as confirmation of the affidavit to which it was appended as an annexure as the founding affidavit could not have been in existence at the time when Mr Mthembu deposed to his own affidavit. Accordingly, the allegations made by the deponent to the founding affidavit were not confirmed by Mr Mthembu. To the extent that this court may have regard to unsubstantiated hearsay, the allegations in question were directed at a shop steward, Mr Eric Plati, who was alleged to have harassed a temporary employee, Mr Mthembu whilst Mr Mthembu attempted to utilze the applicant’s ablution facilities.

[29] It was also alleged by Mr Ngcobo that Mr Plati had approached a security guard at the applicant’s main gate and informed him that once the applicant’s staff were on the premises, the striking workers would prevent them from leaving. The statements which were alleged to have been directed by Mr Plati to the applicant’s security guard were not confirmed by an affidavit deposed to by that individual. In substantiation of these allegations, the applicant relied only on two further photographs derived from its video footage, evincing Mr Plati interacting with the security guard whilst at the entrance to the applicant’s premises.

[30] Insofar as the allegations concerning Mr Plati are concerned, these were denied by the deponent to the answering affidavit, Mr Senzo Luthuli, the first respondent’s regional organiser. Mr Plati confirmed the correctness of his denial by way of a confirmatory affidavit (delivered together with the founding affidavit). Distinct from the absence of any direct evidence having been introduced by the applicant in support of its assertions concerning Mr Plati, the photographic evidence relied upon by the applicant does not correspond to Mr Ngcobo’s description thereof and the time stamps indicated the order of the photographs contrary to that which was explained by him.

[31] In the circumstances, there is an irresoluble dispute of fact on the papers concerning Mr Plati’s actions, and such dispute is required to be resolved in favour of the respondents.

[32] In response to the allegations made by the applicant’s non-striking employees, whilst the respondents admitted that they may have exhorted them to join their strike and, by doing so, encouraged them not to tender their services to the applicant, they denied that their conduct went beyond that.

[33] Had the applicant particularised the incidents related by the non-striking workers in any detail, it may have been possible to have concluded that the respondents’ bare denial was to be rejected. However, for the reason that the case which they were called to answer was itself articulated in vague terms, this court is unable to reject the respondents’ version on the basis of its paucity of detail. This factual dispute must too be resolved in favour of the respondents.

[34] The incident relating to Mr Mariah was, however, unchallenged by the respondents. The deponent to the answering affidavit alleged that he had been unable to take instructions concerning the incident in the time available, but that he nonetheless regarded it as irrelevant as there was no indication of what Mr Thusani had said to Mr Mariah when he approached his vehicle. It was presumably the respondents’ perception that the issue was irrelevant which induced them not to seek additional time to take whatever instructions may have then been required, and to draft an additional affidavit concerning the alleged incident.

[35] Whilst it may be correct that the photographs on their own do not stand as unequivocal evidence of Mr Thusani’s alleged conduct, nor the reason for his having been in close proximity to Mr Mariah’s vehicle, the effect of the respondents’ omission is that the allegations made in Mr Mariah’s affidavit remain entirely unchallenged. As the allegations themselves are neither far-fetched nor wholly untenable, this court has no reason not to accept the correctness of the assertions contained in Mr Mariah’s affidavit, as detailed above.

[36] Although Mr Mariah did not name any one of the respondents it is evident from the utterances attributed to the ‘guys standing there’ that he was referring to the some or all of the second to further respondents. Whilst the applicant connected the photographs taken of Mr Thusi to the incident described by Mr Mariah, its assumption cannot be correct. Whilst the photographs demonstrate Mr Thusi walking towards Mr Mariah’s vehicle, and engaging with its rear door, he was at all times alone. Mr Mariah, on the other hand, alleged that he had been approached by a number of people, acting in concert. It therefore cannot be concluded either that the photographs evince the incident described by Mr Mariah in his affidavit or that the incident described by Mr Mariah included Mr Thusi.

[37] As the individuals who participated in the threats made against Mr Mariah have not been identified in this application, and no explanation proffered as to why that may not have been possible, this court is unable to grant the applicant an interdict operative against all of them. As was stated by this court in Woolworths (Pty) Ltd v SACCAWU & Others (2006) 27 ILJ 1234 (LC),

‘[5] The Labour Court has always been, and probably always will be, sympathetic to employers in a situation where violence has erupted during a strike. It is against such behaviour that the court would readily grant interdicts. However, there should be some limitation to the granting of such interdicts in situations where the respondents are not properly identified. The court should always take into account what attempts have been made to identify persons against whom it issues such orders. It is not always possible to do so, and that per se would not be an impediment to obtain an interdict. That would depend on the facts of each case.

[6] The respondents have, through their counsel in court, stated that there would be no problem with giving an undertaking that there will be no intimidation and incitement, however, that does not mean that I should make an order against them when one does not know which employees were involved in the actions complained of.

[7] Even if just a few names were put forward, I would have been in a position to grant such an interdict, in the knowledge that the order is directed against at least some specific individuals who have been shown to behave in a way consistent with the allegations in the founding affidavit. To grant a 'blanket' court order, covering a whole range of the applicant's stores and employees without any attempt to identify persons, I believe would be wrong.’

[38] Likewise, the photographs themselves do not demonstrate that Mr Thusi had rendered himself guilty of any act warranting the granting of an interdict in the form sought by the applicant.

[39] On the evidence available to this court it is, nonetheless, evident that a number of the second to further respondents, including Mr Thusi, failed to comply with the Picketing Rules by, at the least, having encroached upon the applicant’s driveway when they approached Mr Mariah’s vehicle. From this, an order directing compliance with the Picketing Rules would be justifiable. There is, however, an impediment to granting the applicant a final order directing the respondents to comply with the Picketing Rules and that is certain of the provisions of s69 of the LRA,

‘(8) Any party to a dispute about any of the following issues, including a person contemplated in subsection (6)(a), may refer the dispute in writing to the Commission-

(a) An allegation that the effective use of the right to picket is being undermined;

(b) An alleged material contravention of subsection (1) or (2);

(c) An alleged material breach of a collective agreement or an agreement contemplated in subsection (4); or

(d) An alleged material breach of a picketing rule determined in terms of subsection (5).

(9) …

(10) The Commission must attempt to resolve the dispute through conciliation.

(11) If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

(12) If a party has referred a dispute in terms of subsection (8) or (11), the Labour Court may, in addition to any relief contemplated in section 68(1), grant relief, including urgent interim relief, which is just and equitable in the circumstances and which may include an order-

(a) directing any party, including a person contemplated in subsection (6)(a), to comply with a picketing agreement or rule; or

(b) varying the terms of a picketing agreement of rule; or

(c) suspending a picket at one or more of the locations designated in the collective agreement, agreed rules contemplated in subsection (4), or rules determined by the commission.’

[40] From this, it is evident that this court is empowered to issue orders concerning picketing rules only upon a dispute concerning the picketing rules in question having been dealt with in terms of the mechanisms created by the aforementioned provisions. There is no evidence before this court that any dispute concerning the respondents’ non-compliance with the Picketing Rules was referred. Absent the procedural preconditions set out in s69 having been complied with, this court may not grant an order directing the respondents to adhere to the Picketing Rules.

[41] In view of the conclusions reached by this court, the application will be dismissed.

Costs

[42] Whilst the respondents sought the payment of their costs consequent upon the dismissal of the application, for both the reasons that there is an ongoing relationship between the parties, and this court’s findings that certain, albeit unidentified respondents were not blameless in the events which led to the initiation of the application, it is this court’s opinion that fairness necessitates that each party pay its own costs.

Order

1. The application is heard as one of urgency and the applicant’s failure to comply with the normal time periods, forms and services as provided for in terms of the Labour Court Rules is condoned.[4]

2. The application is dismissed.

3. There is no order as to costs.

K Allen-Yaman

Judge of the Labour Court of South Africa

Appearances

Applicant:

Mr R Orton, Snyman Attorneys

Respondents:

Mr P Schumann, instructed by Purdon & Munsamy Attorneys

[1] This court had sight of the Main Collective Agreement post fact the argument in this matter and it appears that reference to clause 3 ought to have been reference to clause 2. Clause 3 deals with the application of the Basic Conditions of Employment Act, 1997. For the purposes of this judgment, however, the clause in question will be referred to as clause 3, as stipulated by the applicant.

[2] Although reference was made in the founding affidavit to section 65(1)(c) of the LRA, it was clear that this was a typographical error and reference was intended to be section 65(1)(a) of the LRA.

[3] Unitrans Fuel and Chemical (Pty) Ltd v Transport and Allied Workers Union of South Africa and Another (JA55/10) [2010] ZALAC 19 (23 September 2010) at paragraph 14.

[4] Although the issue of urgency was challenged in the respondents’ answering affidavit, no argument was advanced for the striking off of the application on account of lack of urgency and accordingly the matter was enrolled in the exercise of this court’s discretion.