Vodacom (Pty) Ltd and Others v National Association of South African Workers ('NASA') and Another

Vodacom owned the Midrand Campus premises and contracted Bidvest Facilities to manage the premises. Bidvest Facilities contracted Bidvest Services to perform cleaning services. NASA, an unregistered union, sought to organize Bidvest Services' cleaning employees and demanded that Vodacom insource the cleaning services. Initially, Bidvest Services permitted NASA to meet with employees on the premises, but the union repeatedly held meetings in unauthorized locations. On 11 December 2018, Bidvest Facilities and Bidvest Services refused further access. Despite this, NASA official Morolane continued to enter the premises without permission on multiple occasions (16 January, 25 January, and 29 January 2019), holding unauthorized meetings with employees. Morolane sent defiant emails refusing to cease meeting with members on Vodacom premises and threatening that "all hell would break loose" if demands were not met. After NASA refused to give an undertaking to stop entering the premises, Vodacom launched an urgent application for an interdict on 7 February 2019. Bidvest Facilities and Bidvest Services later intervened as second and third applicants.

• Whether the Labour Court has jurisdiction to grant an interdict concerning interference with property rights in the context of labour relations
• Whether an unregistered union has any right to access an employer's premises and meet with employees in the absence of organizational rights granted under Chapter III of the Labour Relations Act or a collective agreement
• Whether the requirements for a final interdict have been met
• Whether the constitutional rights to freedom of association and fair labour practices override property rights and permit unregistered unions to access workplaces
• Whether costs should be awarded against the respondents

The court granted the following relief: (1) Leave for the second and third applicants (Bidvest entities) to intervene; (2) The matter was heard as one of urgency with dispensation of usual forms and service; (3) Declaration that NASA is not a registered trade union and not entitled to exercise organizational rights under Chapter III of the LRA or in absence of a collective agreement; (4) Interdict restraining NASA and its officials (including Morolane) from entering Vodacom Midrand Campus premises without written permission from Vodacom's Managing Executive: Employment Law, from conducting meetings on the premises, and from interfering with Vodacom's right to undisturbed use of its premises; (5) SAPS must assist in enforcing the order if required; (6) Respondents jointly and severally liable for first applicant's costs up to and including 14 February 2019.

The binding legal principles are: (1) The Labour Court has concurrent jurisdiction under section 157(2)(a) of the LRA to adjudicate alleged violations of constitutional property rights (including the right not to be deprived of use and enjoyment of property under section 25) when such violations arise from employment and labour relations; (2) The phrase "employment and labour relations" in section 157(2)(a) describes a broad contextual sphere and does not require a direct employment relationship between the parties to the litigation; (3) An unregistered trade union has no right to access an employer's premises or to hold meetings with employees in the workplace, as these are organizational rights that can only be obtained through the mechanisms provided in Chapter III of the LRA (for sufficiently representative registered unions) or through collective bargaining agreements; (4) The principle of constitutional subsidiarity requires that where legislation (such as the LRA) has been enacted to give effect to constitutional rights, litigants must rely on that legislation rather than directly on the Constitution - parties cannot bypass LRA mechanisms by directly enforcing constitutional rights to freedom of association and fair labour practices; (5) Property owners and employers are entitled to interdictory relief to protect their rights to undisturbed use of property and to conduct business without unlawful interference when unions attempt to exercise organizational rights without legal entitlement.

The court made several non-binding observations: (1) While the court adopted a narrower interpretation focusing on Vodacom's constitutional property rights to establish jurisdiction, it noted that a broader interpretation considering the employees' alleged constitutional rights to freedom of association and fair labour practices might also satisfy section 157(2)(a), though this was not definitively decided; (2) The court observed that meetings with employees in the workplace are probably the most effective way of organizing employees, acknowledging the practical importance of workplace access for union organizing activities; (3) The court noted that Bidvest Services' claim regarding disruption of cleaning services was not supported by evidence; (4) The court expressed that ordinarily it would be reluctant to grant costs in labour matters, referencing the Constitutional Court's guidance in Zungu v Premier of KwaZulu-Natal, but found the respondents' conduct sufficiently egregious to warrant a costs order; (5) The court suggested that had NASA not abused the initial concessions granting access and had they attempted to use LRA dispute resolution mechanisms, they might still have been accessing the premises and meeting with employees.

This case is significant in South African labour law as it clarifies: (1) the Labour Court's jurisdiction under section 157(2)(a) of the LRA extends to matters involving constitutional property rights when they arise in the context of employment and labour relations; (2) the interpretation of "employment and labour relations" as describing a broad sphere rather than requiring a direct employment relationship between the parties; (3) the limits of organizational rights for unregistered unions - while they may recruit members, they have no right to access employer premises or hold workplace meetings without going through LRA mechanisms; (4) the application of constitutional subsidiarity in labour matters - parties must utilize LRA mechanisms rather than directly enforcing constitutional rights; (5) the balance between constitutional rights to freedom of association and fair labour practices versus property rights and the right to conduct business without unlawful interference. The case reinforces the statutory scheme of the LRA for obtaining organizational rights and demonstrates that even constitutional rights must be exercised through the framework established by labour legislation.