Edcon v Steenkamp and Others (JS648/13, JS51/14, JS350/14) [2015] ZALAC 2; 2015 (4) SA 247 (LAC); [2015] 6 BLLR 549 (LAC); (2015) 36 ILJ 1469 (LAC) (3 March 2015)

Edcon v Steenkamp and Others (JS648/13, JS51/14, JS350/14) [2015] ZALAC 2; 2015 (4) SA 247 (LAC); [2015] 6 BLLR 549 (LAC); (2015) 36 ILJ 1469 (LAC) (3 March 2015)

The court held that non-compliance with the procedural requirements of section 189A(8) of the LRA does not render dismissals invalid or of no force and effect. The De Beers principle, which held that procedural lapses result in invalid dismissals, was found to be an erroneous interpretation. The LRA provides specific remedies for procedural flaws, such as urgent applications and immediate industrial action, and does not contemplate invalidity as a sanction. The statutory scheme is designed to separate procedural and substantive fairness, with remedies for procedural unfairness available through expedited court processes or industrial action. The court found that the legislature did not...

Citation
[2015] ZALAC 2
Parties
Applicant: Edcon; Respondent: Karin Steenkamp; Respondent: Minister of Labour; Respondent: NUMSA; Respondent: Minister of Justice and Constitutional Development; Respondent: Mzimkhulu de Booi and 3 others; Respondent: Victoria Sekhoto and 132 others; Respondent: Goodness Khumalo and 65 others
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
3 March 2015
Case Number
JS648/13, JS51/14, JS350/14
Procedural Posture
Constitutional Challenge / Court of First Instance
Outcome
Application upheld. The interpretation of section 189A(2)(a) read with section 189A(8) of the LRA in De Beers and Revan Civil Engineering Contractors is declared wrong. Non-compliance with these provisions does not lead to an invalid dismissal.
Judges
Tlaletsi, Musi, JR Murphy
Legal Topics
Retrenchment Procedure, Section 189a Lra, Invalid Dismissal, Procedural Fairness, Remedies for Procedural Flaws
Labour Law Civil Procedure Retrenchment Procedure Section 189a Lra Invalid Dismissal Procedural Fairness Remedies for Procedural Flaws

Case Brief

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Parties

Edcon

Applicant

Karin Steenkamp

Respondent

Minister of Labour

Respondent

NUMSA

Respondent

Minister of Justice and Constitutional Development

Respondent

Mzimkhulu de Booi and 3 others

Respondent

Victoria Sekhoto and 132 others

Respondent

Goodness Khumalo and 65 others

Respondent

Procedural Posture

Constitutional Challenge / Court of First Instance

Legal Issues

  1. 1 Does non-compliance with section 189A(8) of the LRA render dismissals invalid and of no force and effect.
  2. 2 Is the De Beers principle, which holds that procedural non-compliance results in invalidity of dismissal, correct.
  3. 3 What remedies are available for procedural lapses under section 189A of the LRA.

Ratio Decidendi

The court held that non-compliance with the procedural requirements of section 189A(8) of the LRA does not render dismissals invalid or of no force and effect. The De Beers principle, which held that procedural lapses result in invalid dismissals, was found to be an erroneous interpretation. The LRA provides specific remedies for procedural flaws, such as urgent applications and immediate industrial action, and does not contemplate invalidity as a sanction. The statutory scheme is designed to separate procedural and substantive fairness, with remedies for procedural unfairness available through expedited court processes or industrial action. The court found that the legislature did not...

Court Disposition

Application upheld. The interpretation of section 189A(2)(a) read with section 189A(8) of the LRA in De Beers and Revan Civil Engineering Contractors is declared wrong. Non-compliance with these provisions does not lead to an invalid dismissal.

Orders

  • It is declared that the interpretation of section 189A(2)(a) read with section 189A(8) of the LRA by this Court in De Beers Group Services (Pty) Ltd v NUM [2011] 4 BLLR 319 (LAC) and Revan Civil Engineering Contractors and Others v NUM [2012] 33 ILJ 1846 (LAC) that non-compliance with the provisions results in the...
  • The first, second and third respondents are ordered to pay the costs of the application, jointly and severally, the one paying the others to be absolved, such costs to include the employment of two counsel.