National Union of Mineworkers v Anglo American Platinum Ltd and Others (J 3017/13) [2013] ZALCJHB 262; (2014) 35 ILJ 1024 (LC); [2013] 12 BLLR 1253 (LC) (9 October 2013)

1

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

CASE NO J 3017/13

In the matter between:

NATIONAL UNION OF MINEWORKERS ...............................................................Applicant

and

ANGLO AMERICAN PLATINUM LTD First Respondent RUSTENBURG PLATINUM MINES LTD Second Respondent ANGLO PLATINUM MANAGEMENT SERVICES (PTY) LTD Third Respondent UASA – THE UNION Fourth Respondent SOLIDARITY TRADE UNION Fifth Respondent ASSOCIATION OF MINEWORKERS AND CONSTRUCTORS UNION Sixth Respondent NATIONAL UNION OF METALWORKERS OF SA Seventh Respondent DEPARTMENT OF MINERAL & RESOURCES Eighth Respondent

Date heard: 1 0ctober 2013

Judgment delivered: 9October 2013

______________________________________________________________________

VAN NIEKERK J

Introduction

[1] This is an urgent application in terms of which the applicant (the NUM) seeks an order inter alia declaring that the dismissal of its members employed by the first to third respondents (referred to collectively as ‘Amplats’) is invalid for want of compliance with s 52 of the Mineral and Petroleum Resources Development Act, 28 0f 2002 (the MPRDA) and/or s 189 and 189A of the Labour Relations Act, 66 of 1995 (the LRA).

[2] The application is brought in terms of s 189A (13) (c) of the LRA. The primary relief sought is that Amplats reinstate those NUM members retrenched since 2 September 2013, until Amplats has complied with a fair procedure. In the alternative, NUM seeks an order for compensation in terms of s 189A(13) (d). Despite what appears initially to be a wider casting of the net, NUM does not dispute thatthese proceedings concern only 196 of its members who have received retrenchment notices and who were retrenched during the period 2 to 17 September 2013. I shall refer to these employees as ‘the affected employees’.

[3] The eighth respondent is cited in its capacity as the state institution contemplated in s 52 of the MPRDA. The director general of the Department of Mineral and Energy Resources (the DMR)has filed what is termed an ‘explanatory affidavit’.The DMR has elected not to oppose or otherwise participate in these proceedings.

The issues

[4] The founding affidavit foreshadows a two-pronged claim. The first component of the claimis a challenge to the validity of the

dismissals on account of a failure by Amplats to comply with the provisions of s 52 of the MPRDA. The second is a challenge to the consultation procedure adopted by Amplats. In essence, NUM contends that Amplats failed adequately to consult over three issues – selection criteria, severance pay and cost reduction measures.

[5] At the hearing of the application, Adv. van der Riet SC, who appeared for NUM, refined the submission regarding s 52 to one in which it was contended that the consultation process initiated by Amplats had not been exhausted, on the basis, amongst other things, of Amplats’s failure to comply with s 52. As I understand the submission regarding s 52, NUM does not suggest that the dismissal of the affected employees is invalid; rather, the attack is one more broadly premised on considerations of fairness. In other words, NUM submits that the fairness of the consultation process must necessarily be assessed by considering, amongst other things, the impact of and the question of compliance with s 52.

Factual background

[6] The factual background to these proceedings is not in dispute and is canvassed in detail in the papers. What follows is a brief chronology of events.

[7] On 15 January 2013, the CEO of Amplats issued a memorandum announcing a restructuring of Amplats’s business. Employees (and indeed the general public) were told that the proposed restructuring could result in up to 14 000 retrenchments. On the same day, Amplats issued a notice of intention to consult in terms of section 189(3) of the LRA.

[8] On 17 January 2013, Amplats executives met with the deputy director-general of the DMR to discuss the announcement of the proposed retrenchments. A week later, Amplats executives met with the director-general of the DMR and the leadership of a number of trade

unions representing Amplats employees. At this meeting, it was agreed that the s189 consultation process between Amplats and the trade unions initiated on 15 January 2013 would be suspended to allow for a tripartite process. It was also agreed that the tripartite process run for no more than 60 days, and that the s189 consultation process would be resumed thereafter, should that be necessary. On 13, 14 and 15 February 2013 the tripartite workshop took place. At this workshop, Amplats discussed with representatives of the DMR and the trade unions the basis of its decision to effect a business restructuring, and the consequences of a failure to implement that restructuring.

[9] The second week of the tripartite process commenced on 28 February 2013, when Amplats established an electronic data room in which a vast amount of documentation was assembled. This information concerneda market and industry overview, mining processing and productivity challenges, employee profiles, avoidance measures and support centres, cost analyses and financial status, and a social plan. During the third week of the tripartite process, between 25 February 2013 to 1 March 2013, all parties were given access to the data room.

[10] On 28 February 2013, the meeting was held between representatives of Amplats and the DMR. At this meeting, the agreed tripartite process was converted into a bilateralengagement between Amplats and the DMR. During the bilateral, senior representatives of Amplats held meetings with a number of parties, including the minister, the DG, the DDG and the principal inspector of mines. In the course of these discussions, all aspects of the contemplated business restructuring and retrenchment exercise were thoroughly scrutinised. As part of this process and at the request of the minister, Amplats agreed to extend the 60 day period for consultations under the auspices of the DMR by a further 30 days i.e. until 30 April 2013. Feedback on the bilateral process was presented to a tripartite meeting on 8 May 2013.

[11] From 13 to 24 May 2013 what has been termed the second tripartite process was conducted. During the course of meetings held in this period, the information that had been the subject of the bilateral process between Amplats and the DMR was shared with the trade unions.

[12] On 24 May 2013, Amplats, the DMR and the trade unions entered into a written agreement, referred to as the DMR agreement. In terms of the agreement, some 6000 positionsat Amplats’s operations were identified as potentially affected by the proposed restructuring and a number of alternatives to retrenchment were identified. It was also agreed that the modalities of implementing the agreement would be part of a resumeds 189 consultation, with facilitation provided by the CCMA. The agreement signalled the end of the intervention by the DMR.

[13] A facilitation in terms of s 189A was held at the CCMA on 24 and 25 May 2013. On 10 June 2013, Amplats issued a revised s 189 (3) notice. This notice reflected revised proposals in the light of the interventions that had taken place since January. Amplats gave notice too that the consultation process would recommence for a further period of 60 days from the date of the revised notice, and that at the end of this period, it intended to issue notices of termination of employment. A number of facilitated consultation sessions took place, with facilitation provided by a CCMA commissioner. These sessions took place on 10, 11 19 June 2013; 1, 8, 9 and 19 July 2013; and 5, 6 and 15 August 2013. During this period, amongst other things, proposals were exchanged and discussions held on how best to reduce costs and otherwise avoid or minimize retrenchment. The s 189A process concluded on 16 August 2013, this being the date on which the extended 60 day period, as agreed between the parties, elapsed.

[14] In the interim, on 3 July 2013, the second respondent, the holder of the relevant mining right for the purposes of s 52 of the MPRDA, addressed a letter to the minister, headed “Notification that the circumstances contemplated in section 52 (1) have arisen at Rustenburg Platinum Mines Limited’s Rustenburg Operations.” Amongst other things, the minister was notified that a s 189 consultation process had been initiated, and was on-going. Whether the minister received the letter is not clear from the papers, but I accept for the purposes of these proceedings that the letter was addressed to the minister and forwarded to the relevant contact person and to the director of the board and that despite the second respondent holding itself open for discussion with the minerals and mining development board, this offer was not taken up.

[15] From August 2013, two task teams have been involved in discussions relating to the implementation of mitigating measures in respect of the affected employees, and are designed primarily to deal with issues relating to implementation following the consultation process.

[16] On 29 August 2013, NUM addressed a letter to Amplats in which it recorded its position that the company had failed to engage in a meaningful joint consensus seeking process. The letter listed specific shortcomings in the process, and sought to have that process extended. One of the issues articulated was whether or not the employer had issued a notice in terms of s 52(1) of the MPRDA.Amplats did not extend the consultation process and from Monday, 2 September 2013 onwards, it began issuing notices of termination of employment.

[17] On 6 September 2013, Amplats addressed a detailed response to NUM’s letter of 29 August 2013. In the letter, amongst other things, Amplats indicated that it not agree that s 52(1) of the MPRDA was peremptory but stated that it had, in any event, given notice to the minister in terms of s 52(1).

[18] At present, Amplats contemplates that a total of 3168 employees will be retrenched, some 10 000 less than the number contemplated in January 2013 and some 1000 less than thatcontemplated in mid-August 2013.

Applicable legal principles

[19] Section 189 A (13) was introduced in 2002 and was intended, broadly speaking, to provide for the adjudication of disputes about

procedural fairness in retrenchments at an earlier stage in the ordinary dispute resolution process, and by providing for their

determination, inevitably as a matter of urgency, on application rather than by way of referral. The section empowers employees and theirrepresentatives to approach the court to require an employer to applyfair procedure, assuming, of course, that the jurisdictional

requirements set out in s 189A are met. The section affords the court a broad range of powers, most of which appear to suggest that where a complaint about procedure is made by a consulting party, the court has a broad discretion to make orders and issue directives, thereby extending to the court an element of what might be termed a degree of judicial management into a contested consultation process.

[20] What is clear in s 189 A (13) is that a consulting party may not come to court to complain about matters that are defined in s 189A (19) to be matters of substantive fairness. The court has, more than once, remarked that the Manichean distinction drawn by the Act between substance and procedure is problematic. That notwithstanding, NUM’s submissions in regard to the alleged failure by Amplats to follow a fair procedure must necessarily be assessed by distinguishing, as far as possible, between matters of substance and procedure.

[21] The broad policy considerations underlying section 189A(13), which serve to establish its purpose, were stated as follows by Pillay J in Insurance & Banking Staff Association & another v Old Mutual Services & Technology Administration & another (2006) 27 ILJ 1026 (LC):

‘According to the explanatory memorandum accompanying the 2002 amendments to the LRA, s 189A was aimed at enhancing the effectiveness of consultations in large-scale retrenchments. It allows for a facilitator to be appointed to put back on track at the earliest possible moment a retrenchment process that falls off the rails procedurally. The overriding consideration under s 189A is to correct and prevent procedurally unfair retrenchments as soon as procedural flaws are detected, so that job losses can be avoided. Correcting a procedurally flawed mass retrenchment long after the process has been completed is often economically prohibitive and practically

impossible.... So, the key elements of s 189A are: early expedited, effective intervention and job retention in mass dismissals.’

[22] In an equally important and often quoted dictum, Murphy AJ (as he then was) held as follows inNUMSA & others v SA Five Engineering & others [2005] 1 BLLR 53 (LC) at para 10:

‘Disputes about procedure in cases falling within the ambit of section 189A cannot be referred to the Labour Court by statement of claim, but must be dealt with by means of motion proceedings as contemplated in section 189A(13), the exact scope of which I will return to presently. Suffice it now to say that the intention of section 189A(13), read with section 189A(18), is to exclude procedural issues from the determination of fairness where the employees have opted for adjudication rather than industrial action, providing instead for a mechanism to pre-empt procedural problems before the substantive issues become ripe for adjudication or industrial action.’

[23] In RAWUSA v Schuurman Metal Pressing (Pty) Ltd [2005] 1 BLLR 78 (LC), the court said the following:

‘….the aim of section 189A(13) (Act 66 of 1995) is to provide a remedy to employees to approach the Labour Court to set their employer on the right track where there is a genuine and clear cut procedural unfairness which goes to the core of the process. The section is aimed at securing the process in the interests of a fair outcome. It follows that not every minor transgression of a procedural nature will invite the benefit of the court’s discretionary power to grant a remedy. To hold otherwise would be to open the door to excessive litigation, abuse and unnecessary delay in the process of consultation. Section 189A(13) is aimed at unjustifiable

intransigence, it is not available as a tool to thwart a retrenchment process where the process, as in the present case, is otherwise

capable of being rescued by genuine efforts to cure such flaws as may exist.’

[24] Finally, it should be noted that it is not generally open to employees or their representatives torely on the remedies afforded by s 189A incircumstances where they have frustrated the consultation process,1 or where procedural issues are raised ex post facto, 2 or on the basis only that the employer consulting party has rejected proposals made at the 11th hour.3

[25] It is clear from these authorities that for the purposes of an application such as the present, the proper approach is to judge procedural fairness holistically, and to avoid the approach of a mechanical checklist in relation to each sub-section of s 189,4 and to ascertain whether the overall purpose of the joint consensus-seeking process required by the LRA has been achieved.

Analysis

[26] I turn first to NUM’s submissions based on s 52 of the MPRDA.Notwithstanding the invitation extended by Adv. Myburgh SC (for Amplats) to decide the issue, as I have indicated,it is not necessary for the court to make any ruling as to whether the dismissal of the affected employees is invalid on account of any contravention of s 52.5For present purposes,the relevance of s 52 is to the determination of whether the consultation process was fair and in particular, whether it can be said to have been exhausted before Amplats issued letters of dismissal to the affected employees.

[27] Section 52 reads as follows (under the heading ‘Notice of profitability and curtailment of mining operations affecting employment’):

‘(1) The holder of a mining right must, after consultation with any registered trade union or affected employees or their nominated

representatives where there is no such trade union, notify the Minister in the prescribed manner-

(a) where prevailing economic conditions cause the profit to revenue ratio of the relevant mine to be less than six per cent on average for a continuous period of 12 months; or

(b) if any mining operation is to be scaled down or to cease with the possible effect that 10 per cent or more of the labour force or more than 500 employees, whichever is the lesser, are likely to be retrenched in any 12-month period.

(2) The Board must, after consultation with the relevant holder, investigate-

(a) the circumstances referred to in subsection (1); and

(b) the socio-economic and labour implications thereof and make recommendations to the Minister.

(3) (a) The Minister may, on the recommendation of the Board and after consultation with the Minister of Labour and any registered trade union or affected persons or their nominated representatives where there is no such trade union, direct in writing that the holder of the mining right in question take such corrective measures subject to such terms and conditions as the Minister may determine.

(b) The holder of the mining right must comply with the directive and confirm in writing that the corrective measures have been taken.

(c) If the directives contemplated in paragraph (a) are not complied with, the Minister may provide assistance to or apply to a court for judicial management of the mining operation.’

(4) The holder of a mining right remains responsible for the implementation of the processes provided for in the Labour Relations Act (Act 66 of 1995),pertaining to the management of downscaling and retrenchment, until the Minister has issued a closure certificate to the holder concerned.’

[28] Adv. van der Riet submitted that in the absence of notification to the minister, there has been no consultation between the board and Amplats,no investigation by the board, no recommendations made to the minister, who has accordingly not issued any directives concerning corrective measures. In these circumstances, he contended, the retrenchment consultations cannot be said to have been exhausted, and the retrenchment therefore cannot be said to be procedurally fair.

[29] On the face of it, s 52 does not seek to substitute the procedure prescribed for that established by s 189 or s 189 A of the LRA. First, the obligations that s 52 creates are imposed on the holder of a mining right, not the employer of any employees whose security of employment may be affected by the conditions that trigger the requirement to give notice and who may be the subject of any contemplated retrenchment. It is therefore entirely feasible that the holder of a mining right may have obligations in terms of s 52, but no obligations to employees or registered unions in terms of s 189. Section 52 therefore would appear to address a purpose different to that which underlies s 189 of the LRA, which is the promotion of consensus on the employment-related consequences of adverse operational requirements through a joint consensus-seeking exercise. Secondly, s 52 makes no reference to any obligation to consult employees or their representatives about the consequences of any reduction in the profit to revenue ratio or scaling down of the mining operation. The obligation to consult employees and their representatives established by s 52 is relevant only to the timing of notice to the minister. That having been said, s 52(4) acknowledges that the holder of a mining right (to the extent presumably that the holder is the employer of any employees potentially affected by a retrenchment) is required to comply with s 189 or 189A, as the case may be. It does not seem to me, contrary to what is said by Dale et al in South African Mineral and Petroleum Law,6 that notice in terms of s 52 is to be given only once consultations conducted under the LRA have been completed. Whether a s 52 notice ought to precede any s 189 consultation process or is best conducted post the issuing of the notice, or whether the processes ought best to run in parallel, must necessarily depend on all of the relevant facts and circumstances, especially those that serve to trigger the requirement to give notice in terms of s 52. For example, a temporary decline in profit ratios that has a minimal impact on levels of employment will inevitably be dealt with differently to the closure of a mine with the loss of all jobs. In other words, notice in terms of s 52 may conceivably be required in circumstances where s 189 does not apply and conversely, s189 can apply where there is no requirement to give notice under s 52. When notice must be given to the minister and when employees and their representatives must be invited to consult over the terms of any proposed retrenchment are matters dealt with by the MPDRA and LRA respectively. While it is true that any directives regarding

corrective measures issued by the minister to a mineral rights holder may impact of the nature and course of a s 189 or s 189A consultation process, for present purposes, in the absence of any directive, compliance with s 189 or s 189A does not fall to be assessed by reference to s 52.7anc" HREF="#sdfootnote7sym">7

[30] In the present instance, the minister was given notice as long ago as July 2013 of the fact of contemplated retrenchments. As I have indicated, in the absence particularly of any investigation by the board any recommendations to the minister and any directives concerning corrective measures, from a fairness perspective, s 52 is of little relevance. What is more relevant is a qualitative assessment of the consultation process that has taken place since January 2013 and in particular, NUM’s submissions based more directly on complaints of procedural unfairness under the LRA.

[31] In so far as NUM contends that there has been insufficient consultation on the issues of selection criteria and severance pay, it should be noted that while an employer is required to consult over the selection criteria that it intends to employ, the application of selection criteria is a substantive issue, since it necessarily selects those who will be dismissed from the pool of employees potentially affected by any retrenchment exercise. I understand the NUM’s case to be that Amplats has failed adequately to consult over the issue of which selection criteria should be employed, by definition a procedural issue and therefore justiciable in these proceedings.

[32] It is clear from the papers that the issues of severance pay and selection criteria have been agenda items since the commencement of the s 189 consultation process. When the s189 consultation process recommenced in June 2013, the vast majority of the time allocated for consultation was spent discussing the avoidance measures are set out in the agreement signed on 24 May 2013. The unions, including NUM, vehemently opposed implementation of the avoidance measures. When the 60 days reserved for the consultation process expired in August 2013, Amplats agreed to extend the process by week, specifically to provide for consultation on selection criteria and severance pay. At the facilitation meeting held on 5 August 2013, agreement was reached with the trade unions that they would respond to Amplats’s proposal on selection criteria and severance pay by 8 August 2013. In a letter addressed to the trade unions on 6 August 2013, Amplats provided its proposals in relation to selection criteria and severance pay. These proposals were similar to those made in the initial s 189(3) notice issued in January 2013. On 6 August 2013, NUM addressed a letter to Amplats in which it provided its proposals in relation to severance pay and selection criteria to the trade unions. In its response, on 9 August 2013, NUM indicated that it would not

consult on severance pay and selection criteria until the outcome of the VSP (voluntary separation package) process, which would then have been 10 August 2013. On 13 August 2013, Amplats responded to this letter stating inter alia the following:

‘3. With regards to the contention that it would not be necessary to consult on selection criteria should a sufficient number of affected employees apply for VSPs:

3.1. It is not as easy an exercise as you make it out to be. It is not merely a situation where the number of employees who apply for VSPs could be substituted with the number of affected employees.

3.2. it is still necessary to ensure a skill set with positions in the new organisational design. Therefore, if an employee applies for a VSP but he/she could be accommodated in the new organisational structure, he/she would rather be offered continued employment. Conversely, if an affected employee does not apply for a VSP but he/she cannot be accommodated in the new organisational design due to the specific skill set required, such employee may ultimately be retrenched.

3.3. It is therefore evident that it is still necessary to consult on selection criteria and severance.

3.4. Due to the extensive lapse of time since the section 189A process has commenced (from 15 January 2013), the company therefore proposed that consultation on the two remaining aspects, severance and selection criteria, be finalised. Nothing prevents the consulting bodies to consult on these two aspects while the VSP process is still underway. In any event, the extended time frame within which affected employees could apply for VSPs has now lapsed and you have been invited to make proposals on the two outstanding aspects. It is your decision whether or not you will make such proposals. The company will however take into consideration only those proposals it received from the consulting parties on the two outstanding issues before it makes a final decision. Should you not make proposals on the two outstanding aspects after having been invited to do so; the company would be entitled to make a final decision in the absence of any proposals by the NUM.’

[33] On 13 August 2013 Amplats sent a letter to the trade unions recording that labour would respond to its proposals on severance pay and selection criteria on 8 August, but that no response had been received. The letter further recorded that ‘The parties will meet again on Thursday 15 August at 10h00 to finalise the above issues.’ It is not disputed that NUM failed to make any proposals concerning severance pay and selection criteria.

[34] The final facilitated consultation meeting in terms of s 189A took place on 15 August 2013. At that meeting, Amplats again presented its proposals on severance pay and selection criteria.It is not in dispute that the outcome of the meeting was an inability to agree on the severance package to be paid to affected employees, or on selection criteria. This much was clearly accepted by the presiding commissioner.

[35] On 29 August 2013, a full two weeks after the consultation process within that, NUM addressed a letter to Amplats in which it stated that having taken legal advice, it was of the view that it was ‘prepared to consult with you regarding selection criteria and severance pay and request that a further consultation meeting be scheduled for this purpose.’ The letter concludes with a request for information to put the union in a position to consult on these issues.

[36] The picture that the papers disclose is one that depicts NUM as having frustrated the consultation process by refusing to consult on severance pay and selection criteria when it had the opportunity to do so, only thereafter to seek to reopen consultation on these issues, after the consultation process had been concluded. The conclusion to be drawn is that the request made on 29 August, which was unaccompanied by any concrete proposal and was in any event in breach of the agreement reached at the facilitation meeting held on 5 August 2015, was nothing more than an attempt to delay the issuing of notices of termination of employment, this in circumstances where the 60-day facilitation period had been extended, by agreement, to 16 August 2013 and had elapsed, and where the parties had been consulting, in one form or another, for some seven months. This conclusion is borne out by the nature of the information requested – that request bears no direct relevance to consultation on severance pay and selection criteria.

[37] On the papers before me, I am satisfied that Amplats discharged its obligation to consult with NUM on the issues of severance pay and selection criteria.

[38] In regard to the DMR agreement, NUM contends that Amplats acted unfairly by failing, in a number of respects, to comply with the DMR agreement. In particular, it is contended that the failure to consult over alternative energy, the government laid-off scheme and portable skills is a breach of the obligation to explore appropriate measures to save jobs as provided for in the DMR agreement. I do not intend to canvass this aspect of the claim in any detail; a comprehensive response has been set out in the answering affidavit, and is the subject of what amounts to little more than a bare denial in reply. To the extent that NUM contends that the issue of the termination of contractors was discussed on 15 August but that this is a viable option that warrants further exploration, this is not strictly speaking a matter of procedure. In any event, as the authorities to which I have referred indicate, it is not open to a union to mount a challenge to the procedural fairness of a retrenchment by raising issues ex post factoor by relying on the rejection of proposals made at the eleventh hour.

[39] In summary: it does not necessarily follow that a failure by a holder of a mining right to comply with s 52 results in procedural fairness for the purposes of s 189 of the LRA. This is not to say that there is no link between the two sections; the nature and extent of any overlap is dictated by the prevailing factual circumstances. In the present instance, notice in terms of s 52 was given in July 2013. In the absence of any investigation by the board and direction by the minister, s 52 held no further relevance to the consultation process that was then underway.The issues of severance pay and selection criteria have clearly been the subject of consultation, specifically during August 2013. NUM’s failure to engage on these issues with Amplats and its belated attempt to raise them some 2 weeks after the conclusion of the process does not render the consultation

process procedurally unfair. Finally, those cost reduction issues that flow from the DMR agreement and its implementation were dealt comprehensively in the tripartite and consultation processes. I am satisfied that Amplats was entitled to bring the consultation process to an end when it did and to issue retrenchment notices. The application therefore stands to be dismissed.

Costs

[40] Section 162 of the LRA confers a discretion on the court to make orders for costs according to the requirements of the law and fairness. The Labour Appeal Court has recently affirmed that any liability for costs in proceedings before this court is not to be dictated by the traditional convention of costs following the result.8 The court is required to exercise a full and proper discretion having regard to all relevant factors, which include but are not limited to the financial state of the parties, the bona fides and their continuing relationship. The court is traditionally not inclined to make an order for costs where this might have the effect of prejudicing a relationship between collective bargaining partners, or where some engagement between the parties is imminent and an order for costs might serve to frustrate the prospect of their reaching consensus. In the present instance, I have the sense that the dispute between the parties will by no means be finally resolved in these proceedings, and that further engagement in one form or another in one forum or another is inevitable. For this reason, and in the perhaps naive hope that the parties’ differences are ultimately reconcilable, I intend to make no order as to costs.

I make the following order:

The application is dismissed.

There is no order as to costs.

ANDRÉVAN NIEKERK

JUDGE OF THE LABOUR COURT

APPEARANCES:

For the applicant: Adv. JG van der Riet SC, instructed by Cheadle Thompson and Haysom Inc.

For the first, second and third respondents: Adv. AT Myburgh SC, with him Adv. F Boda, instructed by ENS Attorneys

For the eighth respondent: Adv. W Mokhari SC, instructed by the state attorney

1See, for example, Numsa& others v Kaefer Thermal Contracting Services (Pty) Ltd [2002] 6 BLLR 570 (LC).

2Nehawu& others v University of Pretoria [2006] 5 BLLR 437 (LAC).

3See NUM v De Beers Group Services (Pty) Ltd & another (2009) 30 ILJ 1880 (LC) and Association of Mineworkers and Construction Union & others v Shanduka Coal (Pty) Ltd (2013) 34 ILJ 1519 (LC).

4Johnson & Johnson v CWIU [1998] 12 BLLR 1209 (LAC), Numsa v General Motors of South Africa (Pty) Ltd (2009) 30 ILJ 1861 (LC).

5On the face of it, this would in any event ordinarily be a matter of substance rather than procedure, thus falling outside of the court’s jurisdiction in terms of s 189 A (13).

6Lexis Nexis (Durban) at p MPDRA-430-431.

7For a discussion on the implications of the MPDRA for the protection of work security under the LRA, see PAK le Roux ‘Job Security and the Mineral and Petroleum Resources Act’ Contemporary Labour Law vol 11 no 12, July 2002.

8See Ball v Bambela Bolts (Pty) Ltd [2013] 9 BLLR 843 (LAC) at 854.