One of the requirements of registration as a trade union is whether it is functioning as an actual or genuine trade union. In order to maintain registration, and avoid the Registrar of Labour Relations deregistering it, the trade union must continue to conduct itself as a genuine trade union.

The question is: "When does a trade union cease to operate as a genuine trade union and what, if anything, can an employer do where this impacts the parties' rights to collectively bargain?"

The Labour Court was faced with this very dilemma in the matter of South African Airways (SOC) Ltd and Another v National Transport Movement and Others.


The applicants, South African Airways SOC (Ltd) (SAA) and South African Airways Technical (SOC) Ltd (SAAT) (collectively referred to as SAA) are employers of a number of members of the first respondent, a registered trade union known as National Transport Movement (NTM).  SAA concluded various collective bargaining agreements (Agreements) with certain representatives of NTM.

At the time, however, two camps of NTM representatives (which are referred to as the Mphahlele Camp and the Molefe Camp) were involved in various litigation before the Labour Court to determine the rightful leadership of NTM.  Despite being aware of the leadership issues within NTM, SAA negotiated with and concluded the Agreements solely with the Mphahlele Camp.

The Molefe Camp was not impressed with SAA's dealings with their rival camp and proceeded to frustrate any consultations and negotiations which SAA attempted to conduct with the Mphahlele Camp (on behalf of NTM). As a result, SAA sought to interdict the Molefe Camp from interfering with the Agreements, which SAA requested the Court declare as valid and enforceable (notwithstanding the NTM power struggle).

Further, SAA requested ancillary relief in the form of an order declaring that any further, future collective agreements between themselves and the Mphahlele Camp (as representatives of NTM) would also be valid and enforceable. In addition, SAA sought to interdict the Molefe Camp from purporting to represent NTM or members of NTM until such time as finality has been reached in the litigation pending between the two camps as to who rightfully should hold the leadership of NTM. 

Considerations and Finding of the Court 

  • Declaratory relief that the Agreements are valid and enforceable In the circumstances, the Court held that the Agreements were indeed valid and enforceable, until such time as they are validly terminated or cancelled or declared invalid and unenforceable by a court of competent jurisdiction. The Court confirmed that even if the Mphahlele Camp did not have the necessary authority to conclude the Agreements on behalf of NTM, this would not in itself render the Agreements void. In fact, as long as the concluded Agreements did not go against NTM's constitution and fell within its powers, the Agreements would merely be voidable.   
  • Declaratory relief that future collective agreements were valid and enforceable The Court emphasised that the SAA approached the Court on the basis that a dispute existed as to the rightful leadership of the union. In this regard, the Court found that it could not grant an order declaring future collective agreements concluded between SAA and the Mphahlele Camp to be valid and enforceable without granting an order as to the rightful leadership of NTM.    
  • Declaratory ancillary relief that certain persons constitute lawful leadership of the union  The Court went on to decide that SAA did not have the requisite legal standing to seek an order declaring a specific party the rightful leadership of NTM. The Court was not persuaded that the Mphahlele Camp had made out a prima facie case that they were the rightful leadership of NTM and, while the relief sought was noted to be 'ancillary', the effect of the order would be final as it would enable the Mphahlele Camp to determine the conduct of NTM. The Court commented that, as an employer of members within NTM, SAA cannot take sides in a matter such as this. Section 95 (1)(d) read with section 95(2)(b) of the Labour Relations Act 66 of 1995 (LRA) specifically states that a trade union must be independent and 'free from any interference or influence of any find from any employer'. Allowing SAA to determine the leadership of NTM (which would be most probably biased toward the party with whom they concluded the Agreements) would contravene the sentiments in those sections of the LRA.  
  • Interdictory relief in respect of Molefe Camp's interference in the bargaining process Since the Agreements concluded between the Mphahlele Camp, on behalf of NTM, and SAA were valid and enforceable, the Court was of the opinion that there was no need to interdict the Molefe Camp. Importantly, the Court held that it was unable to grant the order of ancillary relief whereby the Molefe Camp would be interdicted from purporting to represent NTM or members of NTM, as SAA did not have the requisite legal standing to seek such an order.  
  • Alternative Relief The Court acknowledged the difficulties that SAA faced due to the power struggle at NTM. In terms of section 23(5) of the Constitution, employers have both a right and duty to engage in collective bargaining.

The power struggle for NTM's leadership could potentially lead to infringements of SAA's rights as an employer as well as the right of the trade union members to meaningful collective bargaining. For example, the apparent inability or unwillingness of the two camps to find a resolution within a reasonable period rendered the collective bargaining process unmanageable. These infringements led the Court to prevail upon the Registrar of Labour Relations (who were also party to the proceedings) to:

  1. seek the winding up of NTM in terms of section 103(1)(b) of the LRA on the basis that it is unable to continue to function and its deregistration in terms of section 106(2) of the LRA; or
  2. directly cancel NTM's registration on the basis that it has ceased to function as a genuine trade union as envisaged by section 106(2A)(a) of the LRA.

The effect on employers

While it is not within an employer's powers to meddle in the independent nature of a trade union, the Courts are not oblivious of the fact that the behaviour of a trade union may severely impact on the rights of employers in terms of collective bargaining. The Courts, as evidenced by the SAA Case, have suggested alternative remedies in order to maintain the status quo.

What this means for employers is that, in circumstances where the behaviour of the trade union is not akin to that of a genuine trade union or where the trade union is unable to function as such, the correct remedy might not be to run to court to interfere in the administration of the trade unions, but rather to approach the Registrar of Labour Relations. This avoids the time-consuming costly exercise of approaching the court.

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