Blue Access Solutions Scaffolding (Pty) Ltd v Building Industry Bargaining Council [2026] ZALCCT 186

Date of Judgment & Seat of Court: 21 October 2026, Labour Court, Cape Town

Case No: 2026/219524

Name of Judge(s): Gandidze J

Summary of Factual Matrix:

The applicant, a scaffolding subcontractor registered with the Building Industry Bargaining Council (Cape of Good Hope), was in arrears with benefit contributions when its employee, Mr Mshwadi, died in January 2025, so that the Fund declined his death and funeral benefits. The applicant contended that Mr Mshwadi had resigned before his death and, without the Council's involvement, settled with his nominated beneficiary for R65 000. The Council rejected the settlement and on 24 April 2026 issued a compliance order for the full death benefits and a penalty, which the applicant disputed; the dispute was referred to arbitration at the CCMA under the collective agreement.

After the CCMA dismissed the applicant's jurisdictional point in limine on 30 July 2026, the Council, while the arbitration remained pending, marked the applicant as non-compliant and its certificate of good standing lapsed, preventing it from trading on its 35 construction sites. The applicant applied urgently for interim relief suspending the compliance proceedings, directing the issue of a certificate of good standing and interdicting the Council from reflecting it as non-compliant pending the arbitration. The issues were urgency, the requirements for an interim interdict, the Council's application to adduce further evidence, and costs.

Summary of Findings:

[37] ‘In terms of section 158(1)(a)(i) and (ii) of the LRA, this Court has the power to grant urgent interim relief and to grant an interdict. The Council did not suggest that the Court lacked jurisdiction to hear the matter.’

[38] ‘The Court would not be acting outside its jurisdiction if it granted the interim relief sought, as it has jurisdiction to hear the matter pending the outcome of the arbitration proceedings. Whether the relief sought will be granted is a separate matter.’

[42] ‘Although the Council issued the compliance order on 24 April 2026, it maintained that it would refer the matter to arbitration to resolve the dispute. Accordingly, the applicant did not need to bring the urgent application, as the Council indicated that arbitration proceedings would resolve the matter in accordance with the collective agreement. This explains why the Council did not regard the applicant as non-compliant between 24 April and August 2026, as it appreciated that the arbitration proceedings would resolve the dispute.’

[43] ‘Although the arbitration proceedings were still pending, the Council revoked the applicant’s good standing status on 8 August 2026 and informed the applicant of the revocation on 18 and 26 August 2026. The 26 August 2026 communication triggered the urgent application, which the applicant brought a week and a half after the Council revoked its good standing status. Before that, the applicant alleges it sought to engage the Council by telephone. Even if no evidence of the telephone calls was provided, the Court accepts that bringing an application a week and a half after the trigger event was prompt, and therefore there can be no talk of self-created urgency as submitted by the Council. Any delay does not bar urgent relief, as the main consideration is whether the applicant can obtain substantial redress in due course.’

[44] ‘The urgent papers submitted that the arbitration proceedings would take months to finalise. The applicant's failure to request an urgent arbitration hearing, and the applicant’s intention, expressed in the application on 18 September 2026, to postpone the arbitration proceedings scheduled for 25 September 2026, did not mean the matter was no longer urgent. The scheduled commencement on 25 September 2026 did not mean the proceedings would be finalised on that date. Urgency is established by explaining why the matter needs to be prioritised on the court roll and by demonstrating that substantial redress cannot be obtained in due course.’

[45] ‘I am satisfied that hearing the matter as urgent is appropriate. The applicant has complied with Rule 38 of the Rules Regulating the Conduct of the Proceedings of the Labour Court[5] (Labour Court Rules) by explaining the reasons for urgency, the need for urgent relief, and the non-compliance with the rules.’

[46] ‘Hearing the matter as urgent will not prejudice the Council, as it filed all papers before the matter was argued. The Council even filed a supplementary affidavit and its heads of argument before the hearing. It did not suggest that it was prejudiced by the shortened time frames for presenting its case.’

[47] ‘Further, each day the applicant is treated as non-compliant causes irreparable harm. It cannot obtain substantial redress in due course. Substantial redress requires less than demonstrating the absence of a satisfactory remedy. Other named third parties are also suffering harm. The Council’s contention that the applicant has had a fluctuating compliance status over a two-year period cannot be properly assessed without evidence of the allegations.’

[48] ‘On those considerations, the Court exercises its discretion to hear the matter as urgent.’

[50] ‘In National Treasury and others v Opposition to Urban Tolling Alliance and others (Road Freight Association as applicant for leave to intervene)[6] (OUTA), the Court held that an applicant for interim interdict must satisfy the requirements of (a) a prima facie right though open to some doubt; (b) irreparable harm reasonably apprehended if interim relief is not granted; (c) that the balance of convenience favours the granting of the interim relief rather than its refusal, and (d) that the applicant does not have a satisfactory alternative remedy.’

[55] ‘This submission is misplaced. Under clause 50(3)(b) of the collective agreement, if an employer disputes a compliance order, the matter may be referred to arbitration. Under clause 53, the arbitrator may determine whether the collective agreement was breached. Therefore, the pending arbitration proceedings create a protectable right, as they will determine the applicant’s liability for Mshwadi’s death benefits, if any. Until then, the alleged non-compliance is premature and incorrect. On 24 April 2026, the Council acknowledged that it would refer the dispute to arbitration, which may result in a fine. Accordingly, the Council acknowledged that liability remains pending until the arbitration proceedings conclude.’

[56] ‘I agree. The collective agreement does not authorise the Council to withhold a certificate of good standing when a compliance dispute is pending. It specifically provides that, if a compliance order is disputed, the matter must be arbitrated. The Council's arbitrary revocation of the applicant’s good standing status directly conflicts with the collective agreement. Absent confirmed non-compliance, the applicant is entitled to have its good standing status reflected on the Council’s register and to be furnished with a certificate of good standing.’

[61] ‘The test is whether an applicant has demonstrated a prima facie right, even if that right is open to some doubt. For this court to express a view on the applicant’s prospects of success in the arbitration proceedings would be to pre-empt the outcome of those proceedings. It is sufficient that the parties are in dispute over the applicant’s alleged non-compliance with the collective agreement relating to Mshwadi’s death benefits, and that proceedings to determine the applicant’s liability are pending at the CCMA. Having considered the applicant’s case in those proceedings, it cannot be said that the applicant is pursuing a hopeless case. All that is required for the purposes of deciding whether to grant interim relief is that the applicant has a prima facie right, though open to some doubt. The pending arbitration proceedings will determine whether the applicant is liable for Mshwadi’s death benefits, and that answer will determine whether the applicant is non-compliant with the collective agreement and whether its good standing certificate was correctly revoked. Until then, the applicant should be regarded as compliant.’

[63] ‘The applicant seeks interim relief and has demonstrated a prima facie right, though open to doubt, to be regarded as compliant pending the outcome of the proceedings.’

[64] ‘That is indeed the case. The jurisdictional ruling did not dispose of the arbitration proceedings. An arbitrator must still decide whether the applicant is liable for Mshwadi’s death benefits.’

[65] ‘The Council did not identify the statutory power it allegedly exercised, which would require demonstrating exceptional circumstances before an interim interdict is granted. OUTA concerned legislative and executive powers and the separation of powers principle, whereas the present matter concerns the application and interpretation of a collective agreement, which also binds the Council. Once the parties refer a dispute concerning alleged non-compliance for arbitration, they must await the outcome of those proceedings before it can said that an employer is non-compliant.’

[66] ‘This differs significantly from the present application, where the order sought is interim in nature.’

[67] ‘The dispute pending at the CCMA concerns alleged non-compliance with a collective agreement, which clearly involves the application and interpretation of that agreement.’

[69] ‘Whether an employer is non-compliant and what the next steps are are questions to be answered by reference to the provisions of the collective agreement, not by what an employer or the Council might have said to one another. One only needs to appreciate the chronology to see that, in the face of the dispute, the Council's stance was that only arbitration proceedings would resolve it. This is in accordance with the collective agreement.’

[71] ‘The Council issued the compliance certificate in April 2026. Since then, it accepted that arbitration proceedings would resolve the dispute. This explains why it did not enforce the compliance order between April and June 2026. It was prepared to manually override the system in July 2026. Then, without explanation, the Council changed its stance in August 2026 and marked the applicant’s status as non-compliant, simply because the CCMA dismissed the applicant’s point in limine. The dismissal of the applicant’s point in limine is not the outcome of the arbitration proceedings. While the Council may have viewed the point in limine as a delay tactic, the ruling on the point in limine does not resolve the dispute. Only an award will finally dispose of the matter, and the parties must await the outcome of the arbitration proceedings. The Council cannot unilaterally decide that the applicant is non-compliant, as the arbitrator will determine that issue.’

[73] ‘The application was unnecessary. When the matter was argued on 18 September 2026, it was common cause that the arbitration proceedings were scheduled to reconvene on 25 September 2026. It was also common cause that the applicant intended to request a postponement of those proceedings. The current application concerns whether the applicant has made out a case for interim relief pending finalisation of the arbitration proceedings. If the Council believes the applicant is engaging in Stalingrad tactics to delay finalisation of the arbitration proceedings, its remedy lies elsewhere but not with this Court. That issue has little to no relevance to the question whether the applicant has made out a case for interim relief in these proceedings. Moreover, clause 52(2) of the collective agreement requires agreement on the hearing date[20], which appears to be what the applicant is insisting must happen.’

[74] ‘An order directing the Council to stop treating the applicant as non-compliant without requiring the Council to issue the applicant a certificate of good standing would draw an artificial distinction between the two, as the applicant correctly submitted. If an employer cannot be marked as non-compliant, it is compliant, and the Council must issue it a certificate of good standing.’

[75] ‘The relief sought is limited to the dispute over Mshwadi’s death benefits, and the certificate of good standing in relation to that dispute must remain valid until the arbitration proceedings conclude.’

[76] ‘The applicant has established a prima facie right to the interim relief it seeks.’

[79] ‘Without a certificate of good standing, the applicant is unable to trade. It currently operates on 35 construction sites and has not been paid for services rendered due to its non-compliant status. It is in breach of each service agreement because employers cannot engage non-compliant contractors. It risks losing those contracts and will face damages claims. It cannot service current contracts and cannot tender for new contracts. It faces financial and reputational harm. Its business is at risk of liquidation, and its employees risk losing their jobs. The applicant continues to suffer harm.’

[81] ‘The commercial consequences of non-compliance are undeniable. Until the arbitration proceedings are finalised, the applicant cannot be deemed non-compliant. The collective agreement is silent on the issue, which explains why the Council marked the applicant as non-compliant only after the 30 July 2026 CCMA jurisdictional ruling. If an employer disputes a compliance order, it must be treated as compliant under the collective agreement pending the outcome of the arbitration proceedings.’

[82] ‘The current dispute concerns liability for Mshwadi’s death benefits arising from the applicant’s failure to purchase employee benefits. Therefore, the dispute cannot be reduced to a failure to purchase employee benefits.’

[83] ‘The Council’s submission that the matter must be treated as a taxpayer matter is a long shot, given that legislation specifically governs what happens when a taxpayer disputes a tax liability. The applicant disputed the Council’s interpretation of the tax legislation, but the Court need not decide the matter because the current dispute is not a tax matter. It concerns the interpretation of a collective agreement, which clearly provides that where a compliance order is disputed, the matter must be referred to arbitration. Until there is an outcome in those arbitration proceedings, an employer must be treated as compliant.’

[84] ‘The applicant satisfies the irreparable harm requirement.’

[85] ‘The requirement concerns the competing interests of the parties. The question is what harm the Council is likely to suffer if the relief sought is granted, and what harm the applicant is likely to suffer if the relief is not granted.[22]’

[87] ‘If the court does not grant interim relief, the applicant will continue to suffer harm, which may ultimately lead to its liquidation if it cannot meet its contractual obligations to contractors and employees. The applicant’s employees who fall under the Council cannot lose their jobs because of a dispute over a former colleague's death benefits.’

[88] ‘If interim relief is granted, the Council suffers no harm. The alleged non-compliance began in February 2025, and the Council did not revoke the applicant’s status until August 2026. Therefore, the alleged non-compliance alone is not grounds for revoking the applicant’s good standing status. Whether Mshwadi’s beneficiaries are entitled to his death benefits can be determined in due course. If it is ultimately determined that the applicant is liable, it will be required to pay under the collective agreement. If the applicant is liquidated before those proceedings are finalised because it cannot trade, Mshwadi’s beneficiaries will be prejudiced, as they may not receive anything.’

[89] ‘If the arbitrator rules in favour of the Council, Mshwadi’s beneficiaries will receive his death benefits, including interest. The applicant will also be fined. Granting interim relief does not prejudice Mshwadi's beneficiaries or the Council. Denying the interim relief sought prejudices everyone, including the Council and Mshwadi’s beneficiaries.’

[90] ‘The balance of convenience favours granting interim relief limited to compliance status in relation to Mshwadi’s death benefits, and not to any other matter.’

[91] ‘The applicant’s version that the Council has refused to engage with it since 26 August 2026 was not disputed, except to say that the applicant did not provide proof of such efforts. Only this Court can order the Council to maintain the status quo pending the outcome of the arbitration proceedings, as the Council will not engage with the applicant on the issue. The applicant has nowhere else to seek that relief. A damages claim against the Council, in due course, would not undo the financial and reputational harm that the applicant, its employees, Mshwadi’s beneficiaries, the contractors and their clients would have suffered if the Court does not intervene.’

[93] ‘Therefore, the arbitrator may set aside the compliance order only at the conclusion of the proceedings. It is not an alternative to obtaining interim relief from the Court.’

[94] ‘Because the applicant has also met all the requirements for interim relief, the Court will exercise its discretion and grant such relief. For completeness, the Court cannot grant relief that the Council be interdicted from revoking the applicant’s certificate of good standing because it cannot interdict conduct that has already occurred.[23]’

[97] ‘In this Court, costs do not follow the result and are awarded in accordance with the requirements of law and fairness. The applicant had no choice but to seek relief from the Court. The Council initially sought to engage the applicant on the matter and refer it to arbitration under the collective agreement. For reasons that are difficult to follow, the Council unilaterally resolved that the applicant was non-compliant, relying on the ruling on the point in limine, even though the arbitration proceedings had not commenced. Even if the applicant had requested the Council to suspend the compliance order pending the outcome of the jurisdictional ruling, the collective agreement requires an arbitration award to resolve the compliance dispute.’

[98] ‘Additionally, the Council’s application for the Court to admit further evidence was unnecessary and delayed the judgment, prejudicing the applicant. It also filed a chronology incorporating supplementary submissions, which places a burden on the Court to read never-ending papers.’

[99] ‘I was inclined to order the Council to pay the applicant’s costs, but after further reflection decided against it. The applicant filed its submissions late and did not seek condonation. I also considered that the application raised a novel issue, to this Court’s knowledge, not previously addressed. If earlier judgments had dealt with the issue, the parties, who were legally represented, would have brought those authorities to the Court’s attention. In the limited time available to draft the judgment, the Court was unable to find case authorities directly on point. In accordance with the law and fairness, each party must bear its own costs.’

Relief: The Council's application to introduce new evidence was dismissed and the matter was heard as urgent. Pending finalisation of the arbitration under compliance order 20260424002, the Council was directed to suspend compliance proceedings in respect of that order and to issue the applicant with a certificate of good standing within two days, and was interdicted from reflecting the applicant as non-compliant on its register or representing to third parties that it is non-compliant, the order operating only in relation to that compliance order. Each party was ordered to pay its own costs.

Judgment on SAFLII