Organisational Rights for Minority Trade Unions : a reflection on Ngcobo J’s Judgment in NUMSA v Bader Bop (Pty) Ltd (2003) 24 ILJ 305 (CC)

• DOI: 10.25159/2522-6800/3563
• Published date: 01 August 2017
• Pages: 1-18
• Date: 01 August 2017
• Author: Mpfari Budeli Nemakonde

1

https://doi.org/10.25159/2522-6800/3563

ISSN 2522-6800 (Online) | ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–18

ARTICLE

Organisational Rights for Minority Trade Unions: A

Reection on Ngcobo J’s Judgment in NUMSA v Bader

Bop (Pty) Ltd (2003) 24 ILJ 305 (CC)

Mpfari Budeli-Nemakonde

Department of Mercantile Law

University of South Africa

Email: budelm@unisa.ac.za

ABSTRACT

The Constitution of the Republic of South Africa contains a Bill of Rights which enshrines the

rights of all the people in the country. These include the rights of trade unions and employers

or employers’ organisations. This article deals with organisational rights for minority trade

unions, with specic reference to the decision of the Constitutional Court in NUMSA &

Others v Bader Bop (Pty) Ltd & Another and more particularly the judgment delivered by

Ngcobo J. It argues that by recognising organisational rights to a minority trade union such

as the National Union of Mineworkers of SA, outside Part A of Chapter III of the Labour

Relations Act, which grants them only to majority or representative trade unions, the Bader

Bop judgment brought about a ‘revolution’ in the South African labour-law jurisprudence.

This judgment will remain one of the jewels of South African jurisprudence and Ngcobo

J, who delivered in this case one of his few separate judgments, played an important role

during this revolution facilitated by a transformative and substantive interpretative approach

that went beyond the Labour Relations Act to consider the Constitution and international law.

Keywords: trade union; employee; employer; employers’ organisation; organisational rights

Introduction

Until the demise of the apartheid regime in 1994, in terms of the then Labour Relations

Act (LRA), trade unions were not entitled to most organisational rights because the Act1

did not recognise them. The only organisational right that was recognised was the right

1 This Act replaced the Industrial Conciliation Act 28 of 1956 before it was also repealed by the Labour

Relations Act 66 of 1995; hereinafter the ‘LRA’.

2

Budeli-Nemakonde Organisational Rights for Minority Trade Unions

to stop-order facilities, which was not even available to all trade unions. This position

changed with the adoption of the Interim Constitution of the Republic of South Africa,

1993,2 which was later superseded by the Constitution of the Republic of South Africa,

1996 (‘the Constitution’). Section 23 of the Constitution of 1996 protects workers’ rights

to form and join trade unions, to participate in the activities and programmes of such

trade unions, and to strike. Employers’ rights to form and join employers’ organisation(s)

and to participate in their activities are also protected. So are employers and employers’

organisations entitled to engage in collective bargaining. Collective bargaining is the

most common form of workers’ participation in the workplace as it provides workers,

through their trade unions, with greater leverage and equality of negotiating power in

the bargaining process with employers. To give eect to these constitutional labour

rights, a new LRA3 was passed in 1995. In its Chapter 2, the Act recognises trade unions’

organisational rights (statutory rights).4 However, such organisational rights may be

exercised only by registered trade unions that are suciently representative5 and/or

represent the majority of employees6 in the workplace. Chapter 2 of the LRA does not

make any reference to minority trade unions’ organisational rights.

This article critically reects on organisational rights for minority trade unions with

specic reference to the decision of the Constitutional Court in NUMSA & Others v

Bader Bop (Pty) Ltd & Another,7 which for the rst time upheld minority trade unions’

organisational rights in South Africa. More particularly, it reects on the separate but

concurring judgment delivered by Ngcobo J. It argues that by recognising organisational

rights for a minority trade union such as the National Union of Metalworkers of South

Africa (NUMSA), outside of Part A of Chapter III of the Labour Relations Act, which

grants such rights only to majority or representative trade unions, the Bader Bop

judgment brought about a ‘revolution’ in the South African labour-law jurisprudence on

the protection of labour rights, mainly the right to freedom of association and the right

to strike. This judgment will remain one of the jewels of South African jurisprudence,

and Ngcobo J, who delivered in this case one of his few separate judgments, played

an important role during this ‘revolution’ that was facilitated by a transformative and

substantive interpretative approach. This approach went beyond the LRA to consider

the Constitution, the supreme law of the Republic,8 and international law, which must

also be considered when interpreting the rights enshrined in the Bill of Rights.9

2 Act 200 of 1993.

3 Act 66 of 1995.

4 Sections 11–16 of the LRA.

5 See ss 12, 13, and 15 of the LRA.

6 See ss 14 and 16 of the LRA.

7 Bader Bop (Pty) Ltd v National Union of Metal Workers of SA (2002) 23 ILJ 104 (LAC) (‘Bader

Bop’).

8 Sections 1(c) and 2 of the Constitution.

9 Section 39(1)(b) of the Constitution.