National Union of Mineworkers and Others v Aveng Moolmans (Pty) Ltd (JS923/17; C85/17) [2024] ZALCJHB 519 (2 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS923/17

Case no: C85/17

In the matter between:

NATIONAL UNION OF MINEWORKERS

First Applicant

B. SEPADILE

Second Applicant

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION

Third Applicant

AMCU MEMBERS AS PER ANNEXURE “A” Fourth to Further Applicants

and

AVENG MOOLMANS (PTY) LTD Respondent

Heard: 12 to 23 February 2024

Delivered: 02 July 2024 (This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 02 July

2024.)

JUDGMENT

PHEHANE, J

Introduction

[1] The above cited case numbers were consolidated. The trial hearing proceeded over 10 consecutive days.

[2] The individual applicants were dismissed from the employ of the respondent on 30 June 2017 for having participated in an unprotected strike action that commenced on 26 June 2017. It is common cause that the strike was unprotected.

[3] The applicants claim that their dismissal is substantively unfair. Procedural fairness is not in dispute.[1] The applicants also allege the inconsistent application of discipline by the respondent. The relief sought by the individual applicants is reinstatement and in some instances, compensation.

[4] Early in the proceedings, the dispute under case number C851/17 between the National Union of Mineworkers (NUM) and Mr. B. Sepadile and the respondent became settled. An order to this effect was handed down on 16 February 2024.

[5] As the hearing progressed, the dispute with Mr. Segonetso became ‘resolved’ on the ninth day of the hearing. The Court was informed that further similar settlements were in the pipeline. On the tenth day of the hearing, the Court was informed that the dispute with the following individual applicants had been settled:

a. Matlhomola Segonetso;

b. Lenah Galaeng; and

c. Surprise Mamogwe.

[6] The Court was yet again informed, that more settlements were expected with applicants George Moeng and Jeremiah Motlhabane.

[7] When the proceedings adjourned at the end of the tenth day of the trial hearing, for the purposes of the parties submitting their written closing arguments to the Court, the Court was informed that even more settlements were in the offing. The parties were accordingly requested to deliver a joint practice note together with their written closing arguments, confirming which individual applicants’ disputes had been settled.

[8] Before judgment was delivered, the parties delivered a joint practice note on 15 April 2024, confirming that settlement had been reached with the following further individual applicants:

a. Jeremiah Motlhabane;

b. Ananius Muthabi; and

c. George Moeng.

[9] When the proceedings reconvened on 20 June 2024 for the purposes of hearing oral argument on costs, the parties, at the direction of the Court, handed up draft orders as agreed between them, in relation to the settled disputes of applicants Segonetso,[2] Galaeng and Muthabi[3] and Mothlabane, Moeng and Mamogwe.[4]

[10] All the draft orders mentioned in the preceding paragraph read the same and state by consent between the parties, that the aforesaid respective applicants have withdrawn as applicants in the matter under case number JS923/17 as the dispute between those applicants and the respondent has become settled. The parties agree that this Court may still have regard to the oral evidence of the settled applicants save for that of Mr. Segonetso whose dispute was settled before he could be subjected to cross-examination and as a result, his evidence-in-chief is untested. The parties further agree that no order as to the payment of costs should be made in respect of these matters that have been settled.

[11] The draft orders “X1”, “X2” and “X3” were made orders of Court on 20 June 2024.

[12] It is submitted on behalf of the applicant union that the following individual applicants did not participate in the trial proceedings

and therefore, they are not entitled to any relief:[5]

a. Sipho Lukhele; and

b. Lesego Mabale.

[13] This judgment, therefore, pertains only to the remaining applicants in the dispute under case number JS923/17. I refer to the third applicant as the applicant union or AMCU, and the fourth and further applicants before this Court as the individual applicants.

Background

[14] The respondent is an open cast mining service provider contracted with the Anglo Kolomela mine (Kolomela mine) near Postmasburg in the Northern Cape Province. It is common cause that the applicants were employed in various positions and all worked in Shift A and in the construction team and worked on the Klipbankfontein project (KBF project).[6] Shift A commences at night from 21h00 until 06h00 the following day. The construction team shift commences at 06h00 until 16h00.[7]

[15] It is also common cause that an employee by the name of Mr. Buddy Moleo, who formed part of Shift A, launched a grievance with the respondent on behalf of the individual applicants. Briefly, the grievance concerned nepotism and racism at the respondent. The grievance was unresolved. Mr. Moleo arrived at work on 26 June 2017 to work the night shift. On his arrival, he was suspended from duty. The Shift A employees wanted to know why he was suspended. They refused to go underground to render their services. They sat in the change room in the Fatigue Centre, waiting to be addressed by management.

[16] On the same date, that is, 26 June 2017, the superintendent/supervisor of Shift A, Mr. Duvenhage told the employees that Mr. Moleo’s

suspension would be discussed at a routine Industrial Relations meeting between management and the applicant union shop stewards the following day, 27 June 2017. He told the individual applicants to return to work or leave the site. The individual applicants ignored this instruction. The respondent contacted the AMCU organiser to intervene on 26 June 2017.[8]

[17] The individual applicants sat in the change room until the shift of the construction team was to start, which was at 06h00. The construction team employees joined the Shift A employees in the change room and also refused to render their services.

[18] Before the next shift, Shift C could start their shift at 10h00 on 27 June 2017, the respondent had been informed by its client (Kolomela Mine) that access to the mine would be blocked to the incoming Shift C employees due to the unprotected strike action that commenced on the night of 26 June 2017.

[19] The applicant shop stewards, being Messrs. Sepadile and Muthabi were released from their duties on 26 June 2017 to attend the meeting with management on 27 June 2017.

[20] The first written ultimatum was issued to the striking employees at 10h25 on 27 June 2017 requiring them to leave the site immediately, as they refused to adhere to a previous instruction to leave the site at 23h00 on 26 June 2017. The individual applicants did not heed to this first written ultimatum. The striking employees were instructed to return to work at the commencement of their next shift at 11h00 on 30 June 2017.

[21] A meeting was ultimately held between management and the AMCU shop stewards, who thereafter met with the striking employees and the striking employees left the respondent’s premises at 17h30 on 27 June 2017.

[22] A further meeting was held on 28 June 2017 between management and the AMCU shop stewards, at which meeting, it was discussed that the individual applicants were required to sign a written undertaking refraining from participating in unprotected strike action. AMCU was given an opportunity to convey this to their members and to provide feedback to management. The feedback from the employees was that they refused to work until all their demands were met. They also refused to sign a written undertaking.

[23] On 28 June 2017, the respondent dispatched bulk short message system (SMS) messages to its employees to report to the Postmasburg showground (showground) for a meeting at 10h00 on 29 June 2017.

[24] The evidence of Mr. Jansen van Vuuren, the former human resources manager of the respondent, and Ms. Cloete, the respondent’s human resources administrator, was that the showground is an open field as one enters the small town of Postmasburg. Mr. Duvenhage, the production superintendent and supervisor of Shift A, also confirmed this and further stated that the showground is easy to find. The respondent uses the showground to conduct training. Kolomela mine expected the respondent to have all its employees sign a written undertaking to return to work, after which, access to the mine would be granted. The respondent therefore set up offices at the showground to meet with the striking employees and their representatives and where the written undertakings to resume work would be signed and administered. More on this later.

[25] As a result of the striking employees refusing to sign the written undertaking, they were subsequently issued with two further written ultimata.

[26] The evidence of Mr. Jansen van Vuuren is that the written ultimata were each read out to the striking employees as they refused to accept printed copies and all three ultimata were emailed to the applicant union. AMCU does not dispute that it received the ultimata by email. The further evidence of Mr. Jansen van Vuuren is that the second and third ultimata requiring the individual applicants to attend at the showground to sign a written undertaking were read out to the striking employees, and sent to all employees’ mobile numbers in the records of the respondent by bulk SMS messages.

[27] Following a meeting with AMCU on 29 June 2017, a second written ultimatum was issued to the striking employees which required them to sign a written undertaking at the showground or the respondent’s regional office in Kathu by 16h00 on 29 June 2017.

[28] The respondent issued a third and final ultimatum on 29 June 2017, requiring the striking employees to sign the written undertaking by 10h00 at the showground or the Kathu regional office on 30 June 2017, failing which, they would be dismissed.

[29] The applicants failed to heed to the third and final ultimatum and were dismissed. The respondent provided the applicants with an opportunity to make written representations as to why their dismissals should be overturned and they were afforded an opportunity to appear in an appeal process to state why, in support of their written representations, they should not be dismissed.

[30] AMCU was invited to the appeal proceedings but indicated that it would not attend. Some applicants attended the appeal proceedings and stated their case. At the appeal hearing, the respondent presented a

document setting out its findings after verifying each written representation submitted by each individual applicant. The outcome of the appeal hearing was the confirmation of the dismissal of the individual applicants.

[31] Pursuant to the appeal outcome, the individual applicants launched an unfair dismissal dispute. As the dispute remained unresolved, a referral to this Court was launched by the applicants in terms of the provisions of section 191(5)(b)(iii) of the Labour Relations Act[9] (LRA).

Crux of the applicants’ case

[32] It is submitted on behalf of the applicants that the crux of this dispute relates to what transpired at the showground on 30 June 2017. The evidence before this Court, to a large extent, concerned the events at the showground on 30 June 2017.

[33] For context, it is pertinent to set out the content of each ultimatum and SMS, as each of the individual applicants tendered oral evidence before this Court in relation to what transpired at the showground on 30 June 2017 as it relates to themselves, which SMS they received or did not receive, as some of them were, while others were not in the Postmasburg vicinity.

The ultimata

[34] The first written ultimatum was issued on 27 June 2017 at 10h25 and read:

‘RE: UNPROTECTED STRIKE / REFUSAL TO COMMENCE WORK

1. Since the start of your shift at 21h00 last night, you have refused to commence work.

2. There has [sic] been several attempts by Management to talk to you order to get the operations started, but you have disregarded repeated instructions to resume work. You indicated that you will only resume work once the suspension of a co-employee (Mr. Moleo) is revoked.

3. You were again given an instruction to resume work by no later than 23h00, which you failed to adhere to. You were informed that your actions amounts [sic] to an Unprotected strike in terms of the Labour Relations Act (Act 66 of 1995, as amended).

4. Following the above, you were then given the instruction to leave site at 23h00, since you clearly did not have any intention of resuming work. You also disregarded this instruction and are currently still on site.

5. We would further like to bring it to intention that you are currently also in contravention of Mine and Client Safety regulations, since you have been on the mine for more than 12 consecutive hours. This is

seen as very serious.

6. AS FOR THE AFOREMENTIONED, YOU ARE HEREBY AGAIN AN FORMALLY ADVISED THAT, AS PER THE PROVISIONS OF THE LABOUR RELATIONS ACT (66 OF 1995, AS AMENDED), YOU ARE CURRENTLY PARTICIPATING IN AN ILLEGAL WORK STOPPAGE (UNPROTECTED STRIKE).

7. Accordingly, you are hereby instructed to:

7.1 Leave site with immediate effect,

7.2 Report for work and resume work at the commencement of your next shift Friday, 30 June 2017 at 11h00.

Should you not adhere to these instructions, it will lead to disciplinary action being taken against you, which does not exclude dismissal. The “no work no pay” rule will also be applied.

8. We have brought the situation to the attention of your Unions (NUM and AMCU) and will be meeting with the site shop stewards this morning to discuss the issue around Mr. Moleo. This is however an internal process and you must resume your duty on your next shift.’[10]

[35] The second written ultimatum was issued on 29 June 2017 at 11h50 and read:

‘RE: FINAL WRITTEN WARNING – UNPROTECETD STRIKE / REFUSAL TO

RESUME WORK

1. Since the start of your night shift on Monday, 26 June 2017, you refused to commence work.

2. Several attempts by Management to talk to you order [sic] to get the operations started, but you have disregarded repeated instructions to resume work. You indicated that you will only resume work once the suspension of a co-employee (Mr. Moleo) is revoked.

4. Following the above, you were then given the instruction to leave site [sic] at 23h00 on 26 June 2017, since you clearly did not have any intention of resuming work. You also disregarded this instruction.

5. At 10h25 on 27 June, you are served with a written instruction/Ultimatum which reconfirmed that:

5.1 You are participating in an illegal work stoppage (unprotected strike), as per the provisions of the Labour Relations Act (Act 66 of 1995, as amended)

5.2 This is a serious offence and could lead to disciplinary action being taken against you which does not exclude dismissal,

5.3 You were in contravention of Mine and Client Safety regulations, since you were on the mine for more than 12 consecutive hours. This is seen as very serious.

5.4 Accordingly, you instructed to:

5.4.1 Leave site with immediate effect,

5.4.2 Report for work and resume work at the commencement of your next shift Friday, 30 June 2017, at 11h00.

6. You disregarded the written instruction to leave site as per “5.4.1”

above. Your Representatives (Shop Stewards) eventually came to meet with Management at 13h00 and at 14h15 on 27 June 2017. We again explained the seriousness of the situation.

7. The Representatives committed to give you feedback and assist to ensure that you leave the shift change area and site by16h00 on 27 June 2017.

8. You eventually only left the site at around 17h30.

9. Due to the aforementioned (unprotected strike), the Client (Anglo Kolomela) has decided to block access of all Aveng Moolmans employees until such time that they have received confirmation and commitment that all employees will resume work and that an unprotected strike will not occur again.

10. Management had a meeting with your representatives yesterday regarding the issues that led to the strike.

11. Your Shop stewards have presented you with feedback of these discussions.

12. You were instructed by management today at 10h00 to sign a written undertaking that you are willing to resume work and that you will not participate in an unprotected strike action again.

13. You refuse to sign this and accordingly it is clear that you are still participating in unprotected strike action.

14. In the light of the above, [sic] you are hereby given a Final Written Warning, for participating in an unprotected strike and your subsequent refusal to work / sigh the undertaking. You are hereby instructed [to] sign the undertaking by no later than 12h30 today (Thursday, 29 June 2017)[11]

15. Any employee that refuse [sic] to sign the undertaking and/or continue with the unprotected strike, WILL BE DISMISSED. The Principle of “NO WORK NO PAY” is still applicable.

16. Management urge each employee to think about the consequences [of] what further participation in this Unprotected Strike will have on him/herself and the impact thereof on their families

17. We have brought the situation to the attention of your Unions (NUM and AMCU) and will be meeting with the site shop stewards again tomorrow morning, to discuss the issues/grievances raised.’[12]

[36] The third and final written ultimatum was issued on 29 June 2017 and read:

‘FINAL ULTIMATUM- UNPROTECTED STRIKE / REFUSAL TO RESUME WORK UNCONDITIONALLY

1. You have been informed via two ultimatums that you are currently participating in an Unprotected Strike, in terms of the Labour Relations Act (66 of 1995), since your night shift on 26 June 2017.

2. This issue has also been discussed with yourselves, your Representatives and Union Officials.

3. Following the meeting held today at the Postmasburg Show grounds, you were requested to sign an Undertaking to unconditionally resume work. You refused to sign the document during the meeting. You were subsequently issued with a Final Written Warning (second ultimatum) and given the opportunity until 16h00 today to sign the document at either the Show grounds or the Aveng Moolmans Regional Office in Kathu. You failed to comply in this regard.

4. DUE TO THE AFOREMENTIONED, YOU ARE HEREBY GIVEN A FINAL ULTIMATUM TO REPORT AT ONE OF THE AFOREMENTIONED VENUES & THE UNDERTAKING BY NO LATER THAN 10h00 TOMORROW MORNING. SHOULD YOU FAIL OR REFUSE TO COMPLY, YOU WILL BE DISMISSED, AFTER THE EXPIRY OF THE STIPULATED TIME.

5. In the event that you have valid reasons not to be dismissed, you should submit these to your supervisor, in writing at the above mentioned venues before 10h00 tomorrow.

6. In the event that you have not signed the Undertaking due to intimidation, you must visit the SAPS and opposed to an affidavit that should be submitted before 10h00, as part of your written reasons. In such instance, you must disclose the names of the Intimidators on the Affidavit and also be willing to testify against them during a disciplinary hearing.

7. Management again urge you to re-consider your actions and think about the impact that this situation might have on you and your families.

8. The principle of “NO WORK NO PAY” is still applicable.’[13]

The bulk SMS messages

[37] The bulk SMS messages read as follows:

37.1 First SMS:

‘ALL PRODUCTION Hourly Wage Employees, KBF Shifts A, B & C: You are required to report at the Postmasburg Show Grounds at 10:00 tomorrow for a meeting with Shop Stewards and Management thereafter. We urge all employees who participated in the strike/refuse to resume work to reconsider their actions as this could possibly lead to dismissal. KBF Management 2017/06/28’

37.2 Second SMS:

‘URGENT ULTIMATUM: ALL STRIKING EMPLOYEES KBF

SHIFT A/ day shift participants – Construction team

KBF project

29/6/17

FINAL WRITTEN WARNING – UNPROTECTED STRIKE/ REFUSAL TO RESUME WORK

You have participated in an Unprotected strike on Mon. 26 Jun. You were served with a written instruction/ultimatum to refrain from this. You were called to a meeting with Management at the KBF Show grounds this morning and requested to sign an undertaking to unconditionally resume work. You refused to sign this. You are hereby given a final written warning for participation in an unprotected strike and have until 16h00 this afternoon to sign the Undertaking at either the Show grounds of Kathu Regional Office. Any employee that refuse [sic] to sign the undertaking and/or continue with the unprotected strike WILL BE DISMISSED. The Principle “NO WORK NO PAY” is still applicable.

Management Therefore urge each employee to think about the consequences of their continued participation in this Unprotected Strike. We have brought the situation to the attention of your Unions (NUM and AMCU) and will be in contact with your Shop Stewards.

2017/06/29.’

37.3 Third SMS:

‘URGENT AND FINAL ULTIMATUM: ALL STRIKING EMPLOYEES KBF

KBF

29 June 2017

FINAL ULTIMATUM – UNPROTECTED STRIKE/ REFUSAL TO RESUME WORK UNCONDITIONALLY

1. You have been informed via two ultimatums that you are currently participating in an Unprotected Strike in terms of the Labour Relations Act (66 of 1995), since your night shift on 26 June 2017.

2. This issue has also been discussed with yourselves, your Representatives and Union Officials.

3. Following the meeting held today at the Postmasburg Show grounds, you were requested to sign an Undertaking to unconditionally resume work. You refuse to sign the document during the meeting. You were subsequently issued with a Final Written Warning (second ultimatum) and given the opportunity until 16h00 today to sign the document at either the Show grounds or the Aveng Moolmans Regional Office in Kathu. You failed to comply in this regard.

4. DUE TO THE AFOREMENTIONED, YOU ARE HEREBY GIVEN IN A FINAL UNTIMATUM TO REPORT TO ONE OF THE AFOREMENTIONED VENUES AND SIGN THE UNDERTAKING BY NO LATER THAN 10H00 TOMORROW MORNING. SHOULD YOU FAIL OR REFUSE TO COMPLY, YOU WILL BE DISMISSED AFTER THE

EXPIRY OF THE STIPULATED TIME.

5. In the event that you have valid reasons not to be dismissed, you should submit these to your supervisor, in writing at the abovementioned venues before 10h00 tomorrow.

6. In the event that you have not signed the Undertaking due to intimidation, you must visit the SAPS and depose to an affidavit that should be submitted before 10h00, as part of your reasons. In such instance, you must disclose the names of the intimidators on [sic] the Affidavit and also be willing to testify against them during a disciplinary hearing.

7. Management again urge you to re-consider your actions and think about the impact that the situation might have on you and your families.

8. The Principle of “NO WORK NO PAY” is still applicable.

KBF Management

2017/06/29’.

Oral evidence

Respondent’s evidence:

[38] The evidence of Mr. Jansen van Vuuren and Ms. Anele Cloete, the human resources administrator of the respondent and one of the respondent’s employees who administered the signing of the undertakings at the showground together with a safety controller, named Marike, was that Kolomela mine required all employees of the respondent to sign a written undertaking to unconditionally resume work and not to participate in unprotected strike action. The employees on Shifts B and C were also issued with ultimata requiring them to sign the undertaking at a different time than Shift A.

[39] An example of the undertaking appears at page 1 of Bundle A, as confirmed by Ms. Cloete.[14] This is not disputed.

[40] The individual applicants were dismissed for failing to heed to the third and final ultimatum which instructed them to sign the undertaking by 10h00 on 30 June 2017 before their shift was to commence at 11h00, confirming that they would resume work unconditionally and would no longer participate in unprotected strike action.

[41] The evidence of Mr. Jansen van Vuuren is that the deadline for signing the undertaking was extended from 16h00 on 29 June 2017 to 10h00 on 30 June 2017 to ensure that all Shift A and construction team employees had sufficient time to attend at the showground or the Kathu office to sign the undertaking before the stipulated deadline, being 10h00 on 30 June 2017. His evidence is that the 10h00 deadline was imposed as Shift A and the construction team were to start their

next shift at 11h00 on 30 June 2017 and Kolomela mine required signed undertakings before access to the mine could be unblocked.

[42] The evidence of Mr. Jansen van Vuuren and Ms. Cloete is that there was a specified time for each shift to present themselves at the showground to sign the undertaking. Mr Jansen van Vuuren stated that Shifts B and C were given a deadline until 10h00 on 1 July 2017 to sign their undertaking. Ms. Cloete confirmed this.

[43] Mr. Jansen van Vuuren and Ms. Cloete further stated that if an employee arrived after the time as stipulated, they were too late to sign and were not permitted to sign the undertaking. Mrs. Cloete stated that Mr. Jansen van Vuuren gave a strict instruction that those employees who arrived after the stipulated time frame should not be permitted to sign the undertaking.

[44] The evidence of Mr. Jansen van Vuuren and Ms. Cloete was that it was not only Ms. Cloete who was assisting the employees at the showgrounds to sign the undertakings; other employees were also present from management, including himself. Ms. Cloete and “Marike” were administering the undertakings. Members of management present with Mr. Jansen van Vuuren were Mr. Griessel, the respondent’s general manager and Mr. Kleynhans, the respondent’s then contracts manager.

[45] Their evidence is those employees who signed the undertaking on time were permitted to access the mine to render services.

[46] Ms. Cloete stated that the employees in Shift A who approached her to sign the undertaking after the 10h00 deadline on 30 June 2017 were not permitted to access the mine. Her evidence is that, on the strict

instructions of Mr. Jansen van Vuuren, she was not permitted to allow any Shift A employee to sign an undertaking after 10h00 on 30 June 2017. Mr. Jansen van Vuuren confirmed this instruction and stated that the same instruction was given to all members of management involved in the process of administering the undertakings.

[47] The evidence of Mr. Jansen van Vuuren is that Kolomela mine blocked access to the mine for all of the respondent’s employees from 27 June 2017 until 30 June 2017. The respondent was required to inform Kolomela mine when it would resume operations and therefore, it was necessary for the respondent to obtain the signed undertakings by its employees before access to the mine could be granted.

[48] In considering why the deadline of 10h00 on 30 June 2017 was imposed by the respondent, Mr. Jansen van Vuuren stated as follows:

‘MR MNDEBELE: And you already testified that the initial deadline for the employees to sign the undertaking was 16:00 on 29 June 2017. How many hours of the extension were they granted?

MR JANSEN VAN VUUREN: That is correct. Yes, from what I recall the ultimatum was served at, just after 10:00 and then they had to sign by somewhere around 12:00, but due to the fact that the employees had left the showground at that stage, it was then, an extension was given up until 16:00, to make sure that everyone got the second ultimatum, the final written warning and also it was sent to the respective unions.

MR MNDEBELE: And what was considered in coming to the decision to set the deadline at 10:00 on 30 June?

MR JANSEN VAN VUUREN: It was basically the shift was starting at 11:00 and we from what I recall, we tried to get our operations starting as soon as possible. So we had to know as management before the shift came, for the shift at 11:00, obviously they were blocked out at that stage, but we had to know prior to that stage, whether these employees are going to sign undertakings or not. That we can also inform the client to say that the entire shift has signed now, can we please be granted access. This was one of the reasons and also on that particular day and at that particular time, everyone was supposed to be back in Postmasburg for the commencement of their shift. So, it was from a logistical reason as well.’[15]

[49] It is not disputed that the respondent communicated various messages with its employees prior to the unprotected strike action via bulk SMS messages. The evidence of Ms. Cloete is that she sent the bulk SMS messages to all the employees’ mobile numbers as provided to the respondent by the employees and no employee ever complained about not receiving any SMS messages from the respondent.[16] None of the individual applicants before the Court disputed this evidence.

[50] Mr. Jansen van Vuuren’s evidence is that after the individual applicants were dismissed, they were afforded an opportunity to make representations setting out reasons why their dismissals should be overturned. AMCU was given an opportunity to represent the members at the appeal hearing which they refused. A few of the individual applicants represented themselves in the appeal hearing. The written representations of those applicants who did not represent themselves in the appeal hearing were considered in the appeal proceedings.

[51] The statements in each written representation were verified by the respondent and during the appeal proceedings, Mr. Jansen van Vuuren presented to the chairperson of the appeal proceedings the respondent’s findings after having verified each of the applicants’ written representations. As the representations of the individual applicants were either false or unconvincing or both, their dismissals were upheld.

[52] At the time of the strike, Mr. Duvenhage was employed as the respondent’s production pit superintendent for Shift A. On 30 June 2017, he was at the Kathu office in the morning and at the showground in the afternoon.

Applicants who attended at the showground on 30 June 2017:

[53] The following individual applicants went to the showground on 30 June 2017 but were told by the respondent, mostly, Ms. Cloete and also by her colleague, named Marike, that it was too late to sign the undertaking. They are:

a. Ms. Dince;

b. Ms. Galaeng;

c. Mr. Jacobs;

d. Mr. Kraai;

e. Mr. Leshotho;

f. Mr. Mabilo;

g. Ms. Tlhaolakgomo;

h. Ms. Motaung;

i. Mr. Motlhabane;

j. Mr. Ntoalang;

k. Mr. Phokoje;

l. Mr. Sebetso;

m. Mr. Shoai;

n. Mr. Tsotetsi;

o. Mr. Tshimane;

p. Mr. Viljoen; and

q. Mr. Moncho.

[54] I now deal with each of the above-named applicant’s oral evidence below.

Ms. Dince

[55] Ms. Dince’s evidence was that she did not receive all three SMS messages.

[56] While she was at home in Kuruman, she received a phone call from her colleague on her mobile phone on 29 June 2017, informing her to be at the showground to sign the undertaking. She arrived at the showground at 08h00 on 30 June 2017. She spoke to Ms. Cloete at 09h00, who informed her that she was not available and asked her which shift she was in. Ms. Dince responded that she was in

Shift A, to which Ms. Cloete told her that it was too late to sign the undertaking. Her evidence is that Ms. Cloete told her before 10h00 that it was too late to sign the undertaking.

[57] This version was put to Ms. Cloete during cross-examination. Ms. Cloete stated that it was not true that she refused Ms. Dince to sign the undertaking before 10h00[17] and that she would have allowed Ms. Dince to sign the undertaking if she arrived before 10h00. Ms. Dince could not explain why Ms. Cloete would refuse her to sign the undertaking before 10h00. She also could not explain why she did not complain to senior managers present that she was being refused to sign an undertaking before the deadline was reached.[18]

[58] Ms. Dince’s written appeal representations contradict her version in this Court. She states, in her written representations, that she arrived at the showground on 30 June 2017 and went to a safety talk before 10h00. She approached Ms. Cloete, who said she was unavailable. She then saw a queue comprised of people of different shifts and joined this queue. A little after 10h00, Ms. Cloete said that it was too late for her to sign the undertaking and that other shifts were permitted to sign it.[19] Ms. Dince’s evidence before this Court is that Ms. Cloete informed her that it was too late to sign before 10h00.

[59] Ms. Dince’s version that Ms. Cloete did not allow her to sign the undertaking before 10h00 is untrue. There was no reason for Ms. Cloete to refuse her to sign the undertaking before 10h00. On the applicants’ own version, Ms. Cloete considered the applicants as family and therefore, there would be no reason for her to disallow employees who arrived on time to sign the undertaking. Ms. Cloete’s consistent evidence is that she allowed employees who arrived on time to sign the undertaking and she had strict instructions from Mr. Jansen van Vuuren to disallow employees who arrived after the cut-off time to sign the undertaking.

[60] The evidence of Mr. Jansen van Vuuren is that when he verified Ms. Dince’s version as contained in her written representations, firstly, she ought to have received all three SMS messages, as her mobile phone number was confirmed as correct. Secondly, she was at the showground before 10h00 and was standing with the group that had

no intention of signing the undertaking.

[61] During cross-examination, Ms. Dince confirmed that the colleague who informed her to go to the showground to sign the undertaking called her on the same number that she gave to the respondent. I, therefore, find it improbable that she did not receive all three SMS messages.

[62] Given her contradictory version and the inconsistency in her evidence, Ms. Dince is not a credible witness. The respondent’s version that she was part of the group of employees who refused to sign the undertaking on 30 June 2017 is more probable.

Mr. Jacobs

[63] The evidence of Mr. Jacobs was that he did not receive any of the SMS messages. He stated that he went to work on 30 June 2017 and arrived at 10h15 but his access card was blocked. He phoned Ms. Rachel Maribe, an employee of the respondent’s training department, who informed him that he must report to the showground to sign a document in order to return to work. He proceeded to the showground, joined a queue and Ms. Cloete said it was too late for Shift A to sign the undertaking.

[64] His evidence is that he received communication on his mobile phone from the respondent regarding safety issues in the past. In addition, he received communication on his mobile phone about the strike from

his union but did not receive any communication on his mobile phone between 27 to 30 June 2017, hence he did not know he had to report to the showground.

[65] In his written appeal representations (which he did not dispute although the document is unsigned), Mr. Jacobs did not mention anything about a queue at the showground. He also does not mention going to the mine at 10h15 and his access card being blocked. When asked to explain, during cross-examination, why he did not mention a queue in his representations, he stated that Mrs. Cloete told him what to write in his representations. This version was not put to Ms. Cloete when she gave evidence and it is therefore rejected.[20]

[66] Ms. Cloete’s evidence is that Mr. Jacobs was one of the employees that wanted to sign the undertaking after 10h00 but were disallowed. She could not recall whether he explained that he had first reported to the mine for work.

[67] It is improbable that Mr. Jacobs received no communication on his mobile phone from 27 June to 30 June 2017. It is also improbable that on 30 June 2017, he would not contact his supervisor, or AMCU who had been communicating with him about the strike, to find out why his access card was blocked and rather chose to contact an employee who works in the respondent’s training department.

Mr. Kraai

[68] Mr. Kraai stated that he did not receive any of the three SMS messages and like Mr. Jacobs, he received no messages from the respondent between 27 to 30 June 2017.

[69] The evidence of Mr. Kraai was that he was ill on 30 June 2017 and went to consult a doctor, Dr. Sodaba. It is the undisputed evidence of Ms. Cloete that the practice of Dr. Sodaba is within a short distance from the showground.

[70] Mr. Kraai stated that he saw Dr. Sodaba at 10h40. He was booked off work from 30 June until 1 July 2017.[21] He asked his friend, an employee of the respondent Mr. Brian Jack, to collect him from Dr. Sodaba’s rooms. Mr. Kraai called Mr. Muthabi to obtain an update about the strike action. Mr. Muthabi told him to report to the showground to sign an undertaking to return to work. Mr. Kraai stated that instead of taking him home, Mr. Jack re-routed and took him to the showground and he arrived there at 12h30. Ms. Cloete refused him to sign the undertaking.

[71] Mr. Kraai’s evidence was that he sent a WhatsApp message to his supervisor, Mr. Duvenhage, at 12h12 to enquire if he was still at the showground, as he wanted to sign the undertaking. Mr Duvenhage responded that he was not, at which, Mr. Kraai stated that he wanted to sign (the undertaking). Mr. Duvenhage responded that it was too late. Mr. Kraai told Mr. Duvenhage that he would “write his name” as he was too far away.[22]

[72] During cross-examination, Mr. Kraai stated that although he did not receive the SMS messages from his employer, he used his phone to contact Mr. Brian Jack to collect him at the doctor’s rooms. He confirmed that he had not changed his mobile phone number. I find it improbable that Mr. Kraai did not receive the SMS messages from the employer. He did not dispute being part of the striking employees. On his own evidence, he phoned Mr. Muthabi on 30 June 2017 to find out the status of the strike action. He was informed that he was to report to the showground to sign the undertaking. His evidence is that he was not aware of what time he needed to sign the undertaking. It is improbable that he would not have known the deadline to sign the undertaking. This is because he was aware since 26 June 2017, that Shift A was required to report for their next shift which was to commence at 11h00 on 30 June 2017 and on his own version, he contacted Mr. Muthabi, the AMCU shop steward, for an update on the strike action. It is thus improbable that he did not know the deadline was 10h00.

[73] Mr. Kraai was caught in his own web of lies when he was asked during cross-examination, whether he was lying to Mr. Duvenhage or to this Court, when he said in his WhatsApp message at 12h39 to Mr. Duvenhage that he was far from the showground when his version in examination-in-chief was that he arrived at the showground “somewhere around 12h30”.[23] He altered his version to state that he arrived at the showground before 13h00.

[74] What is clear from his evidence is that he arrived at the showground after 10h00 and he did not, on the morning of 30 June 2017, inform his supervisor, Mr. Duvenhage, as he was required to, given that Shift A was to report for duty for their 11h00 shift, that he was too ill to report for duty. He mentions nothing in his WhatsApp message

to Mr. Duvenhage that he is ill and has consulted with a doctor.

[75] Mr. Jansen van Vuuren’s evidence is that the appeal hearing considered the representations of Mr. Kraai, together with the sick note that he submitted with his representations. His version was contradictory and was not accepted by the respondent. [24]

[76] In my view, Mr. Kraai’s version to his employer is untrue, which is perpetuated in this Court. When asked during cross-examination why he did not inform Mr Duvenhage that he was booked off sick, he stated he did not inform his employer about the sick note because he wanted to save his employment. In my view, if he did want to save his job, presenting a genuine sick note would, in all probability, have convinced the respondent that he was too ill to sign the undertaking by the deadline. In my view, the sick note was obtained later, to be used as a cover-up not to meet the deadline of 10h00.

Mr. Leshotho

[77] Mr. Leshotho’s evidence is that he received all three SMS messages.

[78] He stated that he felt ill on 29 June 2017 while he was at home in QwaQwa. On the following day, 30 June 2017 he left QwaQwa at 03h00 for Postmasburg, being driven by his brother to consult with Dr Sodaba. He consulted with Dr Sodaba at 12h40. Mr. Leshotho’s explanation for not seeing a doctor in QwaQwa was due to him preferring to consult with Dr. Sodaba, whom he usually consults with.

[79] Mr. Leshotho confirmed that he was aware of the rule that should an employee feel ill, he should inform his supervisor that he is not going to report for duty, or he will report late.

[80] He tried to contact Mr. Duvenhage on 30 June 2017 when he was in Postmasburg, but he could not recall what time this was. As he could not reach Mr. Duvenhage, he sent a WhatsApp message to him at 14h12 asking him to sign the undertaking for him because he was in Kimberly for a check-up at the doctor.[25]

[81] Mr. Leshotho stated that he arrived at the showground at 15h00, after being informed by a colleague to go there to sign the undertaking, but he was informed by Mrs. Cloete that it was too late to sign the undertaking.

[82] Mr. Leshotho admitted that he lied to Mr. Duvenhage when he stated in his WhatsApp message that he was in Kimberly, whereas he was in Postmasburg. Oddly, he stated that he lied in order to save his job. He admitted that he perpetuated this lie in his appeal representations. He apologised to the Court for lying. What is strange about Mr Leshotho’s admission of lying to his employer is that he could not dispute that his conduct was odd as he admitted that he lied and there were consequences for his lies, yet he still maintained that he was unfairly dismissed.[26] Mr. Leshotho stated that he does not seek reinstatement because he is happy at his current job where he has been employed since 2018; what he seeks from this Court, is to be compensated by the respondent “for the time lost”.[27]

[83] Mr. Leshotho stated, at least on more than one occasion, that he went to the showground to sign the undertaking to return to work. However, his conduct is not that of a person who was aware of the consequences of not signing the undertaking on time. On his own admission, he had ignored the earlier two SMS messages by the respondent and had not made any serious attempt to comply with the

10h00 deadline as stipulated in the third SMS message.

[84] Mr. Leshotho was not an honest witness. His version before this Court is riddled with inconsistencies. He stated that it takes 4 to 5 hours to drive from QwaQwa to Postmasburg; yet, during cross-examination, he stated he arrived in Postmasburg at 12h00, whereas during examination-in-chief, he stated that the reason he could not attend

at the showground before 10h00 to sign the undertaking was because he was too ill, not because he was still en route to Postmasburg.

[85] In view of the afore-going admitted dishonesty and inconsistencies, Mr. Leshotho is not a reliable witness.

Mr. Mabilo

[86] Mr. Mabilo received all three SMS messages. He was a shop steward. He received WhatsApp messages from Ms. Cloete on 30 June 2017 to attend at the showground on that date to sign an undertaking before 10h00.[28] His evidence was that he attended at the showground at 09h55 but Ms. Cloete informed him that one of the managers, either Mr. Griessel or Mr. Kleynhans stated that he should not sign the undertaking. Ms. Cloete does not recall this. His evidence was that he remained at the showground until 15h00, in the hope that the respondent would change their mind and permit him to sign the undertaking. He then left for home.

[87] Mr. Mabilo stated that he lied in his written appeal representations when he recorded that the reason he did not sign the undertaking was because he was a shop steward. He explained that he lied in order to save his job. When questioned by the Court for clarity regarding what he had lied about, Mr. Mabilo stated that the lie was the content of the representation.[29] As I understand this explanation from Mr Mabilo, there was no reason for him not to sign the undertaking. On the facts, all employees of the respondent, including shop stewards, were required to sign the undertaking.

Ms. Tlhaolakgomo

[88] Ms. Tlhaolakgomo confirmed that she was part of the construction team, whose shift was to commence at 06h00 and end at 16h00 on 27 June 2017. She denied participating in the unprotected strike action.

[89] Her evidence was that when she arrived at work on 27 June 2017, she found the Shift A employees sitting in the Fatigue Centre. Her evidence was that she also sat in the Fatigue Centre but was waiting for the safety inspection and to be directed by management on the way to proceed in order to render her services.

[90] Her evidence is that she did not receive and does not recall receiving any of the SMS messages. She later changed her version to state that she received the third SMS at 11h46 on 30 June 2017, while she was at the showground. She stated that the reason she proceeded to the showground on 30 June 2017 was because she received a call from a colleague, Ms. Motaung, who informed her that employees had received SMS messages and were gathering at the showground to sign undertakings at 10h00.

[91] She stated that she therefore proceeded to the showground and saw a long queue. She did not join the queue. Instead, she waited on the side hoping to see management so that she could inquire as to why she did not receive the SMS message. She further clarified that she did not join the queue because she did not participate in the strike action. When she received the SMS message at 11h46, she joined the queue. When she reached the front of the queue, Mrs. Cloete informed the employees that it was too late for Shift A and the construction team to sign the undertakings. She then left for home.

[92] Ms. Tlhaolakgomo’s evidence is inconsistent in that she states she does not recall receiving any SMS message from the respondent. She later states that she received the third SMS message after the 10h00 deadline. Further inconsistencies in her evidence are as follows: she states that she was informed by a colleague to go to the showground on 29 June 2017. She did, but she did not sign the undertaking as she was not involved in the strike action and therefore she was of the view that there was no reason for her to sign the undertaking. However, she later states that had she received the SMS message of 29 June 2017 requiring the employees to sign an undertaking by 16h00, she would have attended at the showground to sign the undertaking to save her employment.[30]

[93] Ms. Tlhaolakgomo painted a picture of an employee who had gone to work on 28 and 29 June 2017 but found her access card blocked. She could not explain whether she asked management why her card was blocked. When confronted with the written ultimata that were read out to the striking employees, Ms. Tlhaolakgomo stated that she did not

recall the ultimata but agreed that she could not dispute the evidence of Mr. Jansen van Vuuren that the ultimata were read out to the striking employees and copies were left in the Fatigue Centre. She changed her version and stated that she was at the showground on 29 June to find out why the access cards were blocked.

[94] In view of the several inconsistencies in her evidence, Ms. Tlhaolakgomo is not a reliable witness. On the balance of probabilities, the respondent’s version is more probable that she was part of the striking employees and was aware that that access to the mine was blocked due to the strike action that commenced on 26 June 2017 and was aware of the ultimata and the deadline of 30 June 2017 to sign a written undertaking by 10h00. Being an AMCU member, it

is improbable that she did not know, as she wants this Court to believe, that the construction team formed part of the unprotected

strike action.

[95] Ms. Tlhaolakgomo does not seek reinstatement. She broke down during evidence-in-chief when she was asked if the respondent can trust her and answered in the negative. When she composed herself and the question was repeated, her response was evasive and she said that if the company believes she was part of the strike, they would not trust her.

Ms. Motaung

[96] Ms. Motaung received all three SMS messages and she was aware of the cut-off time of 10h00 on 30 June 2017 to sign the undertaking. She confirmed contacting Ms. Tlhaolakgomo to attend at the showground to

sign the undertaking.

[97] Her evidence was that she arrived at the showground between 08h30 and 09h00 and joined a long queue. When she reached the front of the queue, Ms. Cloete refused for her to sign the undertaking as she said

it was too late for Shift A employees to sign. Her evidence was that she does not know what time Ms. Cloete refused for her to sign the undertaking and she did not check the time when Ms. Cloete refused for her to sign the undertaking.

[98] During cross-examination, she was asked why she did not mention a long queue in her written appeal representations,[31] to which she responded that, when she wrote the statement, she could not recall what transpired.

[99] In my view, it is improbable that an employee who is aware of a deadline would not check what the time was when she was refused to sign the undertaking. This was put to her in cross-examination and she responded that she was at the showground before 10h00. Ms. Motaung’s conduct is not that of an employee who intended to sign the undertaking before 10h00. If she was, she would have challenged Ms. Cloete for refusing her to sign the undertaking before 10h00. In the circumstances and on a balance of probabilities, the respondent’s version is more probable – Ms. Motaung she was not on time to sign the undertaking and this is why she was not permitted by Ms. Cloete to sign it.

Mr. Ntaoloang

[100] Mr. Ntaoloang conceded that he was not being truthful in his written appeal representations. In his written representation, he stated that the reason he could not sign the undertaking was because he was booked off sick from 28 June to 1 July 2017 and was at home in Kuruman. He back-paddled and stated that he was confused about the dates.

[101] It is common cause that he was at the showground on 30 June 2017. Mr. Ntaolang’s evidence was that he arrived at the showground at 08h20 and joined a queue. When he entered the office, Ms. Cloete refused him to sign the undertaking as it was beyond the 10h00 deadline. His evidence was that he was on time. He later changed his version to state that Ms. Cloete came out of the office and addressed employees in the queue saying it was too late for Shift A to sign the undertaking. After this, he joined a group of colleagues with Mr. Selemogo, an AMCU union official.

[102] Nothing is mentioned in his appeal representations about a queue.

Mr. Phokoje

[103] Mr. Phokoje’s evidence was that he was a new employee and did not participate in the strike action.

[104] He received the three SMS messages. He admitted that he made no attempt to sign the undertaking on 29 June 2017 as he was travelling home to Kuruman at the time, afraid due to strike action, and intended to sign it the following day.

[105] On 30 June 2017, he travelled to Postmasburg from Kuruman and got lost as he tried to make his way to the showground. He ended up at Shoprite. He phoned a certain “Ntsimane” for directions but arrived at the showground beyond the 10h00 cut-off time. He joined a long queue. Ms Cloete announced that it was too late for Shift A to sign the undertaking.

[106] Mr. Phokoje’s fears seemed to have disappeared without explanation on 30 June 2017, so much so that he decided, on his version, to join a queue to sign the undertaking. In response to his evidence that he had gotten lost when travelling to the showground, Ms. Cloete stated that the showground is located as one enters Postmasburg next to the Shoprite centre.

[107] Mr. Phokoje could not explain, during cross-examination, why he did not call for directions before leaving Kuruman. In light of the uncontested evidence that the showground is located upon entering the town of Postmasburg, it is therefore, in my view, improbable that Mr. Phokoje was lost getting to the showground.

Mr. Sebetso

[108] Mr. Sebetso’s evidence was that he did not receive the three SMS messages.

[109] In the respondent’s appeal submissions, it is conceded that the mobile number of Mr. Sebetso was short by one digit. Mr. Sebetso’s evidence was that Mr. Muthabi contacted him while he was at home in Douglas on 29 June 2017, between 09h00 and 10h00, to inform him that he must report at the showgrounds on 30 June 2017 before 10h00 to sign the undertaking. He left home and hitchhiked to Postmasburg and arrived at sunset. He arrived at the showground between 08h00 and 09h00 and joined a short queue. When he arrived at the front of the queue in the office, Ms. Cloete stated it was too late for Shift A to sign the undertaking. He left the office, stood with Mr. Selemogo and then left for home.

[110] Mr. Sebetso’s version was challenged in cross-examination to the effect that when Mr. Muthabi phoned him on 29 June 2017, on his version between 08h00 and 09h00, Mr. Muthabi could not have known of the 10h00 deadline on 30 June 2017, as it had not yet been imposed. The initial deadline on 29 June 2017 was 12h30, which was extended to 16h00 and only later, on Mr. Jansen van Vuuren’s evidence, was it extended to 10h00 on 30 June 2017. Mr. Sebetso “stuck to his guns” and said the 10h00 deadline was communicated by Mr. Muthabi between 09h00 and 10h00 on 29 June 2017. In my view, he could not answer the challenge.

[111] It is improbable that Mr. Sebetso, who arrived on time at the showground on 30 June 2017, was not allowed to sign the undertaking although he was on time, met with Mr. Selemogo and went home. This conduct is not aligned with an employee who wanted to sign the undertaking and had arrived on time – an employee who arrived on time and was denied the opportunity to sign would have raised this with his union representative and the respondent’s management who were present.

Mr. Shoai

[112] Mr. Shoai stated that he did not receive the first and third SMS messages. He only received the second SMS message after 16h00 on 29 June 2017, while he was at home in Delareyville, which is approximately 200 kilometres from Postmasburg. His evidence is that he travelled from Delareyville to Postmasburg on 30 June 2017, as he was expected to start his shift at 11h00 on that date. He also stated that he was phoned by his neighbour and colleague Mr. Max Motaung on 30 June 2017, while he was on his way to Postmasburg. Mr. Motaung was at the showground and could not see him, and therefore, he phoned him to tell him that he must get to the showground, as people were signing the undertaking.

[113] Mr. Shoai stated that he arrived at the showground between 11h00 and 11h30. He saw a queue comprising of Shifts A and B employees and construction employees. He joined this queue. When he was near the office, Ms. Cloete emerged and stated that it was too late for Shift A to sign the undertaking. He remained at the showground until between 15h00 and 16h00, hoping that management would “say something”.

[114] When it was put to Mr. Shoai during cross-examination that it was improbable that he did not receive the third SMS message. His response was “no comment.”

[115] It is improbable that Mr. Shoai did not receive the first and third SMS messages, as he received the second SMS messages and a phone call from Mr. Motaung, on his own version. In my view, the reason he was going to the showground on 30 June 2017, was not to work, but to sign the undertaking. If it is true that he was simply travelling to his workplace to resume duties on 30 June 2017 as this was expected of him, he would have arrived before 11h00 knowing full well that his shift commences at 11h00. However, on his own version, he arrived between 11h00 and 11h30, demonstrating that he had no intention to arrive on time to resume his duties.

Mr. Tsotetsi

[116] The evidence of Mr. Tsotetsi was that he was at his rented accommodation in Postmasburg, waiting for direction from his supervisors as to when to return to work.

[117] He received all three SMS messages, however, he received the third SMS message after 10h00 on 30 June 2017. His evidence was that he received the third SMS message after the deadline due to network problems. He rushed to the showground to sign the undertaking. He did not know what time he arrived, as he was afraid. He stated that he arrived after 10h00. He saw a queue comprising of Shift A and other shift employees. He joined this queue. When he reached the front of the queue inside the offices, Ms. Cloete said it was too late for Shift A to sign the undertaking.

[118] During cross-examination, he admitted that he received the SMS message of 29 June 2017 indicating that the striking workers were to report to the showground by 16h00 to sign the undertaking, but he did not report to the showground as directed. The reasons he gave for not doing so, were various. He stated that he contacted his fellow employees via his mobile phone on 29 June 2017, who informed him that they would not be reporting to the showground to sign the undertaking by 16h00. He also stated that the reason he did not report to the showground on 29 June 2017 by 16h00 to sign the undertaking was because, according to him, it was clear from the message that he had already been dismissed so he did not see the point of going to the showground to sign the undertaking. This explanation is ludicrous, as the second SMS says nothing of the sort. It also does not explain why he went to the showground on 30 June 2017 if the message was clear that he had already been dismissed on 29 June 2017. An employee who was serious about returning to work, as he claims to have been, would have approached his employer or union for clarity and assistance in order to heed to the ultimata. He did not. And yet he seeks reinstatement although he is currently employed since 2019.

[119] Mr. Tsotetsi admitted that he received various SMS communications from the employer on 29 June 2017. His evidence that he received the third SMS after 10h00 on 30 June 2017 is improbable.

Mr. Tshimane

[120] Mr. Tshimane’s evidence was that he received all three SMS messages. He could not attend at the showground on 29 June 2017 as he was looking after his son who was not well.

[121] He arrived at the showground on 30 June 2017 after 10h00 and was told by Ms. Cloete that it was too late to sign the undertaking. He stood at the showground with other employees, hoping management would have a change of mind.

[122] His evidence was that he did not arrive on time at the showground on 30 June 2017 due to the distance from his home, Glenred Village, which is approximately a two-and-a-half hour’s drive to Postmasburg. He stated that he did not recall what time he left home. He later changed his version to state that he arrived late at the showground due to both his wife and son being ill and he was afraid to leave them alone. His evidence was that he left them alone in any event and proceeded to Postmasburg, which shows that his medical note which he submitted to the respondent with his appeal representations contains statements that are untrue – in other words, he was not on family responsibility leave from 29 June to 3 July 2017 which prevented him from being available to sign the undertakings on 29 and 30 June 2017.[32] It does not end there. In an affidavit dated 3 July 2017 deposed to by Mr. Tshimane, he states that the reason he did not avail himself at work is due to his child falling ill and him having to take him to the doctor on 29 and 30 June 2017. This is a lie.

[123] Mr. Tshimane is yet a further applicant witness who admits that he lied to his employer when he submitted the aforementioned sick note from Dr. Basson together with his written appeal representations.

[124] He repeatedly told this Court that he lied to save his job.[33] Despite this concession, he states that there is no reason for the respondent to distrust him. He seeks compensation.

[125] In examination-in-chief, he states that he spoke to no one when he arrived at the showground on 30 June 2017, as he wanted to be alone, yet, in his written representations, he stated that he spoke to Mr. Motsisi, a supervisor, to explain his predicament that he could not arrive on time at the showground.

[126] In view of the afore-going, Mr. Tshimane is not an honest or reliable witness.

[127] Therefore, I find the version of Mr. Jansen van Vuuren more probable, that the individual applicants stood in a group at the showground on 30 June 2017 with no intention of signing the undertaking.

Mr. Viljoen

[128] Mr. Viljoen’s evidence is that he received all three SMS messages when he was at home in the North West Province, about 300 km from Postmasburg. He arrived in Postmasburg on 29 June 2017, as he intended to resume duties at 11h00 the following day. He arrived at the showground at 09h30 and saw a long queue comprising of all the shifts. He joined this queue. When he reached the offices at 14h00, Ms. Cloete said it was too late for Shift A to sign the undertaking.

[129] Ms. Cloete called an employee called Mr. Baile Gorekwang from the queue and told him to report for duty the following day without him signing an undertaking. The evidence of Ms. Cloete, as far as she could recall, is that Mr. Gorekwang signed the undertaking on time on 30 June 2017.[34]

[130] After Ms. Cloete refused for Mr Viljoen to sign the undertaking, he joined a group of his colleagues, hoping Ms. Cloete would have a change of mind.

[131] During cross-examination, Mr. Viljoen was challenged about the contradictory versions between his evidence and that of Mr. Mabilo, who told this Court that he arrived at the showground at 09h55 on 30 June 2017 and found no queue, whereas Mr. Viljoen stated that he arrived at the showground at 09h30 on 30 June 2017 and found a long queue. Mr. Viljoen stated that he had no comment regarding the evidence of Mr. Mabilo.

[132] Mr. Viljoen was also challenged about his written appeal representations where he failed to mention any queue at the showground on 30 June 2017. In response, he stated that this was because he wanted his representations to be concise.

Mr Moncho

[133] Mr. Moncho’s evidence is that he received the second SMS but was afraid to go to the showground to sign the undertaking because of “this strike that was going on”.

[134] He did not receive the third SMS message. However, he received a call from his supervisor, Mr. Vester, on 30 June 2017 at 09h11 while he was at home in Kuruman to report to the showground before 10h00.

[135] He arrived at the showground on 30 June 2017 at 12h00. He saw several queues. Mr. Vester told him to join the long queue, which he did. Marike moved around the queues and told Shift A employees that it was too late to sign the undertaking. She indicated to Mr. Moncho that they were waiting for further directives from Messrs. Kleynhans or Griessel. He then joined fellow employees who stood at the showground, as he assumed they were also waiting for further directives from management. When they arrived, they indicated to those administering the undertakings that it was too late for Shift A to sign them.

[136] His evidence is that Messrs. Sekonyela and Maepe arrived after him but were permitted to sign the undertaking and that this was unfair. This version was not put to Ms. Cloete during cross-examination.

[137] When presented with his written appeal representations, he stated that he does not know why he mentioned that Ms. Cloete refused for him to sign the undertaking and maintained that it was Marike who so refused.

[138] Mr. Moncho’s evidence was that all of the individual applicants were unified and were not prepared to sign the undertaking until all of the incidents that had triggered the strike had been resolved. He stated that going against the group would be dangerous.[35]

[139] His evidence was that the strike was still ongoing. This is why he did not report to the showground on 29 June 2017. Further, on 30 June 2017, while he was at home in Kuruman, he had no intention “to do anything” because “the strike was continuing”.[36]

Inconsistent application of discipline

[140] The applicants allege the respondent applied discipline inconsistently in respect of the following employees who participated in the unprotected strike action, did not sign the undertaking but were not dismissed: Messrs Sekonyela, Tlhagaswane, du Plessis, Gorekwang and Matthys, and in so far as the following employees who did not sign the undertaking and were not dismissed: Messrs Ntaolang, Tskikang and Maepe.

[141] Ms. Cloete’s evidence, as stated above, was that Mr. Gorekwang signed an undertaking. Her further evidence was that Messrs. Matthys, Sekonyela, Tlhagaswane and du Plessis signed undertakings.

[142] Mr Moncho’s version, that Mr. Maepe was allowed to sign the undertaking after 10h00, was not put to Ms Cloete.

[143] Ms. Cloete’s consistent evidence is that only Shift A employees who presented themselves at the showground and heeded the ultimata were permitted to sign the undertaking. She prepared a document of those who signed undertakings. In this regard, she referred to the document, at p 208 in Bundle A. All the employees whom the applicants allege inconsistent application of discipline appear on this document, which shows that they signed undertakings or had valid reasons for not signing the undertakings by the deadline.

[144] In the premises, the applicants’ allegation of inconsistency lacks merit.

Analysis

[145] All the remaining applicants before this Court participated in the strike action. None of them presented sick notes demonstrating that they were booked off sick on 26 June 2017 nor did they have a valid excuse for not being at work on that date. None of them presented convincing proof that they had a valid reason not to be at work on 30 June 2017 at the start of their shift at 11h00 and not to present themselves at the showground to sign the undertaking before 10h00 on 30 June 2017.

[146] The individual applicants made demands and withheld their labour until their demands were met. Through the medium of their AMCU shop stewards and bulk SMS messages, the individual applicants knew that Kolomela mine had blocked their access to the mine due to the unprotected strike action.

[147] On a balance of probabilities, I find the respondent’s version more probable that the applicants received the bulk SMS message containing the ultimatum requiring them to attend at the showground or Kathu on 30 June 2017 to sign the undertaking before 10h00. Save for Mr. Sebetso, as the respondent missed one digit of his mobile number, the version of the other applicants who denied receiving the third SMS message is improbable, as they confirmed that their mobile numbers, which it is not disputed was in the respondent’s records, were correct. That they did not receive the third SMS message is a ruse. Those who claim not to have received the SMS are all AMCU members and their evidence is that someone, be it a neighbour, colleague, shop steward or a supervisor phoned them to inform them to attend at the showground to sign the undertaking before 10h00.

[148] In the circumstances, they received the third and final ultimatum.

[149] The ultimatum was clear and unambiguous and set out that dismissal would be the consequence for not heeding to it.

[150] The applicants all knew what the purpose of signing the undertaking was. On their version, they intended to sign it to return to work. They knew they had to sign it before 10h00 on 30 June 2017.[37] The majority of the individual applicants sang a similar song and at the same beat of a drum, in my view, as if they had been coached: “I went to the showground to as I intended to sign the undertaking to go resume my duties”.[38]

[151] The applicants were aware that their next shift was to start at 11h00 on 30 June 2017. I find, on the probabilities, that they had no intention to sign the undertaking to return to work. If they had such intention, they would have signed the undertaking before 10h00 in order to start their shift underground at 11h00.

[152] Employees who had the intention to sign an undertaking to return to work would have ensured they made management aware, before 10h00, that they were present to sign the undertaking or would have contacted their supervisor to inform them that they could not make it on time and would be late for the shift that was due to start at 11h00. It is not disputed that it is a practice in the workplace for an employee to inform his or her supervisor if s/he cannot make it for the next shift.

[153] None of the applicants did this.

[154] Those that claim to have been sick, lied. Those that claimed to have been far away from Postmasburg, lied. Others admit they lied in their written representations. Those who did not admit to telling untruths were caught up in their own lies during oral evidence.

[155] On the probabilities, none of the applicants before this Court had any intention to sign the undertaking. The queue at the showgrounds that they applicants conveniently state that they joined before 10h00, only to be informed on reaching the front of the queue that it was too late for Shift A to sign, is also a ruse. In my view, the individual applicants concocted a fabricated version about a queue, and a long one at that, to create a reason why they did not sign the undertaking before 10h00. Ms. Cloete and Mr. Jansen van Vuuren’s evidence was that there was no queue. Mr. Mabilo’s evidence was that there was no queue. The applicants’ version of a phantom long queue gained momentum after the evidence of Mr. Mabilo who stated that there was no queue.

[156] On the probabilities, there was no queue comprising of Shift A employees before 10h00 on 30 June 2017. The queue would have comprised of other shifts, B and C, who were at the showground to sign the undertaking before the deadline on 1 July 2017. The Shift A employees joining this queue after the 10h00 deadline did not assist them, as they were late and did not heed the third and final ultimatum.

[157] I find the respondent’s version more probable that the applicants arrived at the showground and stood among a group of employees who had no intention of signing the undertaking.

[158] This was precisely the evidence of Mr. Moncho. He stated that all the individual applicants acted in concert. They had no intention to sign the undertaking until their demands were met. They stood together in a group at the showground. On probabilities, the evidence of Mr. Jansen van Vuuren is more probable – the individual applicants stood around at the showground with no intention to sign the undertaking.

[159] Every applicant’s version before this Court contradicts their written representations submitted in the appeal hearing. In some instances, the applicants told this Court that they lied to their employer during the appeal “to save their jobs” and despite this, without fail, they say the respondent should trust them.

[160] The applicants lied to this Court about a phantom long queue as a reason for not heeding the final ultimatum to sign the undertaking by 10h00, knowing full well that their next shift was to start at 11h00 on 30 June 2017. In the circumstances, the relationship of trust broke down irretrievably. This is one of the considerations that justify dismissal as the appropriate sanction.

[161] In National Union of Metalworkers of South Africa (NUMSA) v CBI Electric African Cables[39] (CBI Electric), the Labour Appeal Court stated that in determining the fairness of a dismissal for participation in an unprotected strike action, this Court is enjoined to consider the provisions of items 6 and 7 of the Schedule 8 of the LRA and to consider factors such as the duration of the strike, the harm caused by the strike, the conduct of the striking employees, the legitimacy of their demands. This is not a closed list.

[162] I proceed to consider items 6 and 7 of the LRA and the additional relevant factors to determine whether the dismissal was substantively fair.

[163] Item 6 of Schedule 8 of the LRA provides:

‘6 Dismissals and industrial action

(1) Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including –

(a) the seriousness of the contravention of this Act;

(b) attempts made to comply with this Act; and

(c) whether or not the strike was in response to unjustified conduct by the employer.

(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.’

[164] The applicants failed to comply with the provisions of Chapter IV of the LRA in raising their demands. This contravention is serious. The applicants were members of AMCU and had AMCU shop stewards and union officials representing them and engaging with management during the duration of the strike action. As stated above, it is common cause that the strike was unprotected. The applicants made no attempt whatsoever to comply with the provisions of the LRA. A demand that Mr. Moleo be reinstated, is a rights issue that the applicants may not strike over. The applicants do not allege that the respondent provoked them to commence with the unprotected strike action.[40]

[165] At the earliest opportunity, AMCU was contacted by te respondent to intervene in the unprotected strike action. Prior to their dismissal, AMCU and the individual applicants were furnished with clear, unambiguous written ultimata, each setting out what was expected from the applicants and what the consequence for failing to heed to the ultimatum would be. The applicants were given sufficient

time to reconsider their actions and to comply with the ultimata in view of the two extentions of the deadline to sign the written

undertaking.

[166] On the evidence of Messrs. Moncho, Phokoje and Tsotetsi, the strike was still continuing well past 26 June 2017 until 30 June 2017. Therefore, the duration of the strike was about five days. In my view, this is not a short duration – operations were closed from 27 to 30 June 2017 during which period, the conduct of the applicants was to persistently refuse to heed to ultimata to sign undertakings which were required before access to the mine could be re-opened for them to render services.

[167] The harm caused by the strike was the blocking of access to the mine by Kolomela mine and operations consequently halting during the five day period. Further harm is that all employees, whether or not they participated in the strike action, were required to sign an undertaking that they would not participate in strike action.

[168] The conduct of the applicants during the appeal process was deceitful. None of them told the truth about why they could not sign the undertaking on 30 June when they were at the showground. This demonstrates the absence of remorse on their part. None of them showed any remorse for participating in an unprotected strike action.

[169] Item 7 of Schedule 8 of the LRA reads:

‘7 Guidelines in cases of dismissal for misconduct

Any person who is determining whether a dismissal for misconduct is unfair should consider –

(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened, whether or not-

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.’

[170] The applicants were represented by a union and therefore, ought to have been aware that participation in an unprotected strike action constitutes misconduct. They were made aware through the medium of their union and the ultimata that were issued, that they were participating in an unprotected strike action and failure to heed to the ultimata would result in dismissal.

[171] As stated above, I find no inconsistent application of discipline – the employees who failed to heed to the ultimatum and had no valid reason for their conduct were all dismissed and their dismissals were upheld on appeal. It is now established in our law that inconsistency is one of the factors and not the determining factor in determining whether the dismissal is unfair.[41] The applicants all lied in providing reasons why their dismissals should not be upheld. This is serious and goes to the root of the relationship of trust such that is broken down irretrievably.

[172] Therefore, in consideration of the broad factors this Court should take into consideration to determine whether the dismissal was substantively fair,[42] as provided in items 6 and 7 of Schedule 8 of the LRA and as considered above, I find the dismissal of the individual applicants was an appropriate sanction.

[173] In view of the afore-going, I find that the respondent discharged its onus and proved, on a balance of probabilities, that the dismissal of the individual applicants is substantively fair.

Conclusion and costs

[174] Although the applicants initially sought a costs order against the respondent as they submit that the respondent ought not to have dismissed them and ought to have resolved the matter with the remaining applicants,[43] during oral argument on 20 June 2024, the applicants abandoned this position and reached an agreement with the respondent that either party should pay its own costs.

[175] The respondent confirms this agreement.

[176] The manner in which the applicants conducted themselves in these proceedings by being dishonest regarding why they failed to heed to the final ultimatum and in some instances, admitting that they were dishonest to their employer, is frowned upon. The applicants who admitted being dishonest ought not to have proceeded to launch this referral and ought not to have proceeded with the trial. All the individual applicants before this Court contradicted their written appeal representations, demonstrating that they are perpetuating their lies. The attempt by the counsel for the applicants to steer the applicants to say that they had an intention to sign the undertaking to return to work, is not only improper, in my view, but it also did not assist the applicants, as what was required was more than an intention – they were required to heed to the clear ultimatum to attend at the showgrounds on 30 June 2017 to sign an undertaking by 10h00, which they failed to do.

[177] A number of settlement agreements and withdrawals were concluded during the trial and when judgment was reserved. It is shocking, to say the least, that the applicants proceeded with this case, knowing full well that they put up false versions for failure to heed to clear, unambiguous and final ultimatum.

[178] As officers of the Court, the legal representatives of the applicants ought not to have continued with this referral in circumstances where it is clear as day, that its clients were not being truthful and especially in circumstances where their clients told the Court that they lied to their employer.

[179] The discourteous conduct by both counsel to the Court during an adjournment and before the cross-examination of Mr. Segonetso commenced, is seriously concerning. Both counsel failed to inform the Court that Mr. Segonetso had withdrawn and settled his dispute, only

for the Court to be utterly surprised as to the whereabouts of Mr. Segonetso, who was nowhere in sight for cross-examination, who had not been excused by the Court and when the Court enquired about his whereabouts, the Court was simply informed that the dispute with him had been “resolved” with no further explanation. To put injury to insult, the Court was informed that more applicants would soon be “resolving their disputes in the same manner as Mr. Segonetso”, without any explanation whether resolving the dispute meant it was settled or withdrawn or both.[44] The belated recalling of Mr. Segonetso to be excused by the Court makes a mockery of the judicial process. Such conduct is unbecoming

of counsel.

[180] The applicants have simply abused this Court and have wasted the resources of this Court over 10 days, hearing an unmeritorious case founded on lies and calling a witness, Mr. Smith whose evidence did not assist this Court at all, demonstrating that the applicants had no case. With this unmeritorious case, and after hearing untruths over 10 days, the applicants unashamedly initially sought a costs order against the respondent for failing to “resolve” the matter with these remaining applicants (who were less than frank with the Court) in addition to the applicants already settled.

[181] This is a case that warranted costs on a punitive scale against the applicants. It is surprising that the respondent, well aware that the applicants’ case was spun in a web of lies, did not persist in seeking a costs order against them.

[182] This is a matter that rightly, ought to be reported to the Legal Practice Council to investigate the conduct of the legal practitioners during in these proceedings.

[183] In view of the afore-going, the order is as follows:

Order

1. The applicants’ referral is dismissed.

2. Each party is to pay is own costs.

M. T. M. Phehane

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. Hollander Instructed by: LDA Inc. For the Respondent: Adv. V Mndebele Instructed by: Wilken Inc.

[1] See: Supplementary pre-trial minute at para 23.3 and transcript of 12 February 2024 on p 16.

[2] Marked “X1”.

[3] Marked “X2”.

[4] Marked “X3”.

[5] See: Applicants’ heads of argument as para 6, 6.1 and 6.2.

[6] Mr. Duvenhage, the respondent’s superintendent for Shift A, confirmed this. See: transcript of 15 February 2024 at p 53.

[7] This is the evidence of Ms. Tlhaolakgomo who worked the construction team shift. See: transcript of 19 February 2024, p 61 at line 22 to p 62 at lines 1 to 3.

[8] See: pre-trial minute at para 17.4.1.2.

[9] Act 66 of 1995, as amended.

[10] Bundle A at pp 116 to 117.

[11] This time was subsequently extended to 16h00 in the second SMS message.

[12] Bundle A at pp 126 to 128.

[13] Bundle A at p132.

[14] Transcript of 13 February 2024 at p 61.

[15] Transcript of 13 February 2024, at pp 53 to 54.

[16] Transcript of 13 February 2024, at p 81, line 25 to p 82, lines 1 to 8.

[17] Transcript of 13 February 2024 at p 114.

[18] Transcript of 16 February 2024 at p 35.

[19] Bundle A at p 8A.

[20] see: President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC).

[21] Bundle A at p 23A.

[22] Bundle A at p 20.

[23] Transcript 16 February 2024 at p 96, lines 5 to 7.

[24] Bundle A, at p 111Q.

[25] Bundle A at page 24.

[26] Transcript of 19 February 2024, p 40, at lines 1 to 7.

[27] Transcript of 19 February 2024, p 29 at line 25 to p 30 at line 1.

[28] Bundle A at pp 94 to 95.

[29] Mr. Mabilo’s written appeal representations appear at Bundle A on page 96. The typed version is at p 96 A.

[30] See: transcript of 19 February 2024 at pp 65 to 66.

[31] Bundle A at p 35A.

[32] The medical note appears at Bundle A, p 67.

[33] See: transcript of 21 February 2024 a pp 53, 56 and 65.

[34] Transcript of 13 February 2024 at p 65 and 14 February 2024 at pp 55 to 56.

[35] Transcript of 22 February 2024 at pp 25 to 26.

[36] Transcript of 22 February 2024 at pp 10 to 11.

[37] Ms. Dince does not deny that she knew of the 10:00 deadline to sign the undertaking. See: Transcript of 16 February 2014 at p 35, lines 1 to 11.

[38] In respect of: i. Ms. Dince - see: transcript of 16 February 2024 at p 27, lines 14 to 20. ii. Mr. Jacobs - see: transcript of 16 February 2014 at p 70. iii. Mr. Kraai – see: transcript of 26 February 2024 at p 93. iv. Mr. Leshotho – see: transcript of 19 February 2024 at p 22, lines 19 to 23, p 28 at lines 5 to 7 and p30 at lines 15 to 19. v. Mr. Mabilo – see: transcript of 19 February 2024 at p 47, lines 13 to 17. vi. Ms Motaung – see: transcript of 19 February 2024 at p 96, lines 1 to 4. vii. Mr. Ntaolang – see: transcript of 20 February 2024 at p 40 at lines 1 to 3. viii. Mr. Phokoje – see: transcript of 20 February 2024 at p 61, at lines 8 to 14. ix. Mr. Shoai – see: transcript of 21 February 2024 at p 5, at lines 10 to 15. x. Mr. Tsotetsi – see: transcript of 21 February 2024 at p 22, at lines 19 to 25. xi. Mr. Tshimane – see: transcript of 21 February 2024 at p 48, at lines 10 to 18. xii. Mr. Viljoen – see: transcript of 21 February 2024 at p 79, lines 20 to 25.

[38] In respect of:

i. Ms. Dince - see: transcript of 16 February 2024 at p 27, lines 14 to 20.

ii. Mr. Jacobs - see: transcript of 16 February 2014 at p 70.

iii. Mr. Kraai – see: transcript of 26 February 2024 at p 93.

iv. Mr. Leshotho – see: transcript of 19 February 2024 at p 22, lines 19 to 23, p 28 at lines 5 to 7 and p30 at lines 15 to 19.

v. Mr. Mabilo – see: transcript of 19 February 2024 at p 47, lines 13 to 17.

vi. Ms Motaung – see: transcript of 19 February 2024 at p 96, lines 1 to 4.

vii. Mr. Ntaolang – see: transcript of 20 February 2024 at p 40 at lines 1 to 3.

viii. Mr. Phokoje – see: transcript of 20 February 2024 at p 61, at lines 8 to 14.

ix. Mr. Shoai – see: transcript of 21 February 2024 at p 5, at lines 10 to 15.

x. Mr. Tsotetsi – see: transcript of 21 February 2024 at p 22, at lines 19 to 25.

xi. Mr. Tshimane – see: transcript of 21 February 2024 at p 48, at lines 10 to 18.

xii. Mr. Viljoen – see: transcript of 21 February 2024 at p 79, lines 20 to 25.

[39] [2013] ZALAC 25; [2014] 1 BLLR 31 (LAC). See also: National Union of Metalworkers of South Africa obo Maseko and Others v AMT Africa Recruitment (Pty) Ltd [2022] ZALCJHB 267; (2022) 43 ILJ 2792 (LC).

[40] See: supplementary pre-trial minute at para 21.

[41] See: Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2017] ZALAC 4; (2017) 38 ILJ 860 (LAC).

[42] CBI Electric,supra.

[43] See: paragraph 94 of the applicants’ heads of argument.

[44] This discourteous conduct is a matter of record. See: transcript of 23 February 2024 at pp 1 to 3.