NEHAWU obo Coetzee and Others v Kakamas Water Users Association (JS316/18) [2021] ZALCJHB 447 (8 December 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS 316/18

In the matter between:

NEHAWU obo COETZEE AND 19 OTHERS Applicant

and

KAKAMAS WATER USERS ASSOCIATION Respondent

Heard: 7 and 8 December 2020, 14 and 15 September 2021 and 25 November 2021

Delivered: 08 December 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 08 December 2021.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant union, NEHAWU (NEHAWU or the union) on behalf of its members (the Applicants) approached this Court for relief after they were dismissed for participation in unprotected strike action. The Applicants claimed that their dismissal was substantively and procedurally unfair. The matter is opposed.

[2] Before turning to the merits of the case, it is necessary to give a brief overview of the pleadings, the pre-trial minute and the issues for the Court to decide.

The pleadings and pre-trial minute

The applicable legal principles

[3] It is trite that this Court and the parties are bound by the pleadings and the pre-trial agreement[1] and this Court cannot and should not go beyond the issues it is required to determine.

[4] Jacob and Goldrein[2] aptly capture the position as follows:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings…..

For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.

The Court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the duty or function of the Court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties……

The Court does not provide its own terms of reference or conduct its own enquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.”

[5] In Candy and others v Coca Cola[3] the Court considered the purpose of a statement of claim and held that:

‘In its simplest terms, the statement of case must at least inform the respondent party what the pertinent facts are on which the applicant will rely in the case, and further, what the cause of action is that the applicant will pursue as founded on these facts. That must be done in sufficient particularity so as to enable the respondent to provide a proper answer to these facts and the related cause of action. The statement of claim and the answering statement thereto are not just for the benefit of the parties. They also serve the court, in that the issues in dispute are properly determined and other possible alternative causes of action are eliminated from having to be considered by the court. A proper statement of claim and answering statement are imperative to the fundamental requirement of expeditious resolution of employment disputes in terms of the LRA. As the court said in Harmse v City of Cape Town:

The statement of claim serves a dual purpose. The one purpose is to bring a respondent before the court to respond to the claims made of and against it and the second purpose of a statement of claim is to inform the respondent of the material facts and the legal issues arising from those facts upon which applicant will rely to succeed in its claims.

The material facts and the legal issues must be sufficiently detailed to enable the respondent to respond, that is, that the respondent must be informed of the nature or essence of the dispute with sufficient factual and legal particularity so that it knows what it is that the applicant is relying upon to succeed in its claim.’

[6] In South African Breweries (Pty) Ltd v Louw[4](SA Breweries) the Labour Appeal Court (LAC) was required to, inter alia, determine a complaint by the appellant that the court a quo decided the case on factual issues not properly put before it on the pleadings, nor as refined in the pre-trial conference minute. The LAC held that:

‘To state the obvious, litigation is complex. Among the duties of legal practitioners is to conduct cases in a manner that is coherent, free from ambiguity and free from prolixity. True enough, the holy grail of translating what is complex into simplicity is not always attainable, but the ground rules are irrefrangible: say what you mean, mean what say and never hide a part of the case by a resort to linguistic obscurities. The norm of a fair trial means each side being given unambiguous warning of the case they are to meet. Moreover, these requirements are not mere civilities as between adversaries; the court too, is dependent upon the fruits of clarity and certainty to know what question is to be decided and to be presented only with admissible evidence that is relevant to that question. Making up one’s case as you go along is an anathema to orderly litigation and cannot be tolerated by a court. Counsel’s duty of diligence demands an approach to litigation which best assists a court to decide questions and no compromise is appropriate.’

[7] The LAC further held that[5]:

‘The relationship between the pleadings and the pre-trial conference minute has been the subject of several judicial pronouncements[6]. In short, a minute of this sort is an agreement from which one cannot unilaterally resile. Also, a pleading binds the pleader, subject only to the allowing of an amendment, either by agreement with the adversary, or with the leave of the court. The case pleaded cannot be changed or expanded by the terms of a minute; if it does, it is necessary that that change go hand in hand with a necessary amendment. The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Properly applied, a typical minute – cum – agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. A minute, quite properly, may contradict the pleadings, by, for example, the giving an admission which replaces an earlier denial. When, such as in the typical retrenchment case, there are a potential plethora of facts, issues and sub-issues, by the time the pre-trial conference is convened, counsel for the respective litigants have to make choices about the ground upon which they want to contest the case. There is no room for any sleight of hand, or clever nuanced or contorted interpretations of the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute. The trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the strategic choices made in a pre-trial conference need to be carefully thought through, seriously made, and scrupulously adhered to. It is not open to a court to undo the laces of the strait-jacket into which the litigants have confined themselves.’

[8] In Louw the LAC held that the mantra expressed in a statement of claim where an applicant averred that his dismissal was both ‘procedurally and substantively unfair’, is a stock phrase that is hardly ever useful in communicating what exactly is the causa of the unfairness, which is what both court and counsel need to know in order to address it. The terms of the pre-trial minute narrow the permissible grounds upon which the cause of action is to be presented.

[9] A statement of claim must inform the respondent of the material facts and the legal issues arising from those facts upon which applicant will rely to succeed in its claims. Those must be sufficiently detailed to enable the respondent to respond and to be informed of the nature or essence of the dispute. Each side must be given unambiguous warning of the case they are to meet.

[10] An applicant’s pleaded case must be supported by evidence during the trial. As was held in Harmse v City of Cape Town[7]:

The rules of this court do not require an elaborate exposition of all facts in their full and complex detail - that ordinarily is the role of evidence, whether oral or documentary. There is a clear distinction between the role played by evidence and that played by pleadings - the pleadings simply give the architecture, the detail and the texture of the factual dispute are provided at the trial. The pretrial conference provides an occasion for the detail or texture of the factual dispute to begin to take shape. In terms of rule 6(4)(b) the parties in the pretrial conference must attempt to reach consensus on facts that are common cause, facts that are in dispute, the issues that the court is required to decide and the precise relief claimed.

Accordingly, the rules of this court anticipate that the relief claimed might not have been precisely pleaded in the statement of claim filed. The rules of this court further anticipate that the factual matters at issue will be dealt with more fully and precisely in the pretrial conference. The rules therefore anticipate that the parties at the pretrial conference will have dealt in much more detail not only with the factual matters but also the legal issues. The statement of claim and response thereto foreshadow this activity but are not a substitute for it. It is for this reason that the rule on pretrial conferences provides for reaching consensus on the issues that the court is required to decide.

[11] In summary: parties are bound by their pleaded case and the case pleaded cannot be changed or expanded by the terms of a pre-trial minute. If the pleaded case is changed or expanded, it is necessary for that change to go hand in hand with an amendment. The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Pleadings give the architecture and the evidence at the trial provides the detail and texture.

The statement of case

[12] The obvious question is then: what is the Applicants’ pleaded case?

[13] It is evident from the Applicants’ statement of case that their case was that as a result of the persistence of the negative attitude of the board and the management of the Respondent towards the grievances they had raised, they had ‘gathered’ at the Respondent’s maintenance depot from 17 to 31 August 2017. In the pre-trial minute it was agreed that the said gathering

constituted a strike as defined in section 213 of the Labour Relations Act[8] (LRA) and that the strike was unprotected.

[14] The Applicants were issued with notices to attend a disciplinary hearing and the charge levelled against them was that they participated in an unprotected strike since 17 August 2017. They were dismissed after being found guilty of misconduct.

[15] The Applicants’ pleaded case is that their dismissal was procedurally and substantively unfair. I will deal with each in turn.

Procedural unfairness

[16] The Applicants’ pleaded case in respect of procedural unfairness is that their dismissal was unfair and in contravention of sections 68(5), 185(a), 188 and Schedule 8 of the LRA as well as of the Respondent's Disciplinary Code and Procedure (the Code)

[17] It was specifically pleaded that:

1. The second ultimatum issued to the members on 21 August 2017 indicates that the Respondent had already resolved to dismiss the members before allowing them an opportunity to be heard.

2. The Respondent appointed a labour consultant and member of an employers' organisation (Mr Van der Merwe) as representative for the members' disciplinary hearing in contravention of clause 8.1.2 and 10.1.1 of the Code.

3. The Respondent appointed an attorney (Mr Wessels) as chairperson of the Members' disciplinary hearing in contravention of clause 12.1.1 of the Code.

4. Mr Wessels denied the members their right to representation by their chosen representative at the continued hearing in contravention of item 4(1) of Schedule 8 and clause 12.2.4(c) of the Code.

5. The Respondent appointed Mr Kriel to decide the Applicant's appeal against the members' dismissal in contravention of clause 13.3(a) of the Code.

[18] Subsequent to the filing of the statement of case and prior to the commencement of the trial, the parties filed a supplementary pre-trial minute wherein the issues relating to procedural fairness were limited. The Applicants no longer challenged the second ultimatum and it was not an issue for this Court to consider. The parties further agreed that the issue of procedural fairness was to be decided on the basis of documentary evidence and written submissions to be filed by the legal representatives.

[19] The merits of the matter was argued on 25 November 2021, on which occasion Mr van Vuuren for the Applicants submitted that the challenge to procedural fairness was limited even further. The grounds raised with regard to the appointment of the Respondent’s

representative and the chairperson in contravention of the provisions of the Code were not persisted with in view of the fact that the Respondent could deviate from a disciplinary code and that a deviation per se does not constitute procedural unfairness. More is required where the test is ultimately whether the dismissal was effected in accordance with a fair procedure.

The right to representation

[20] The Applicants persisted with two main grounds in challenging the procedural fairness of their dismissal. The first is whether the

Applicants were denied their right to representation by their chosen representative, in contravention of item 4(1) of Schedule 8 and clause 12.2.4(c) of the Code, on 14 November 2017.

[21] This challenge must be assessed in the context of the sequence of events, relevant to the disciplinary hearing as well as the provisions of the Code and Schedule 8 of the LRA.

[22] It is evident from the notice to attend a disciplinary hearing, dated 29 August 2017, that the disciplinary hearing was set down for 6 September 2017. On 5 September 2017 NEHAWU addressed a request for postponement to the Respondent and the reasons for the postponement were inter alia that there was only one NEHAWU representative available to deal with a case of this magnitude and the representative was already engaged in another matter. The chairperson, Mr Wessels invited submissions from both parties and it was evident that the representative who was engaged in another case, was Mr Oor. Mr Oor however later joined the disciplinary proceedings and Mr Wessels refused to postpone the hearing. It stood down from 08:30, when it was scheduled to commence, until 13:00 to afford Mr Oor the opportunity to consult with the Applicants. A further postponement was granted for the parties to peruse the bundles.

[23] The matter proceeded at 14:00 on 6 September 2017. The Applicants entered a plea of not guilty and the Respondent called Mr van Niekerk as a witness. Due to time constraints Mr Oor did not cross-examine the witness and by agreement between the parties, the disciplinary hearing was postponed to 28 September 2017.

[24] The disciplinary hearing proceeded on 28 September 2017, on which occasion Mr Oor finalised the cross-examination of Mr van Niekerk and the Respondent’s case was closed. Mr Oor called Mr Bartlett as a witness and his evidence was completed. The next witness called was Mr Smith, whose evidence in chief was completed, but due to time constraints, he was not cross-examined.

[25] It is evident from the transcribed record of the disciplinary proceedings that the disciplinary hearing was by agreement postponed

to 2 November 2017. Mr Wessels made it clear that it would be in the interest of the parties to finalise the disciplinary hearing as they all needed finality on the matter.

[26] The disciplinary hearing proceeded on 2 November 2017, on which date Mr Oor was absent and a medical certificate was produced. The

chairperson provided two possible dates for the continuation of the hearing, namely 14 and 22 November 2017 to the representatives of the parties and they undertook to inform him of the suitable date. Mr Wessels received no communication from the parties and on 9 November 2017, he addressed a letter to the Respondent and NEHAWU to indicate that the disciplinary hearing would proceed on 14 November 2017.

[27] On 10 November 2017 NEHAWU indicated that Mr Oor was not available on 14 November 2017. On 14 November 2017 Mr Coetzee, one of the Applicants, requested a postponement due to the unavailability of Mr Oor. Mr Coetzee indicated that they were not able to represent themselves and he placed on record that the maintenance team would go on leave from 15 December 2017 and would be back at work in January 2018. He requested that the matter be postponed to January 2018.

[28] The Respondent opposed the request for postponement on the basis that Mr Kriel informed Mr Oor via a telephonic message on 1 November 2017 that the disciplinary hearing would proceed on 14 November 2017. The hearing was postponed on 2 November 2017, on account of Mr Oor’s illness and Mr Oor was requested to indicate by 3 November 2017 whether he would be available to proceed with the disciplinary hearing on either 14 or 22 November 2017. On 6 November 2017 the Respondent was able to make contact with Mr Oor and he indicated that he would not be available on any of the dates proposed by Mr Wessels and he undertook to communicate with Mr Wessels, which was clearly not done.

[29] The Respondent submitted that Mr Oor was aware as early as 1 November 2017 of the possibility that the matter would proceed on 14 November 2017, he never responded to the chairperson’s request to indicate whether any of the proposed dates would suit him, nor did he contact Mr Wessels after 6 November 2017, having received correspondence from the Respondent about the continuation of the disciplinary hearing. The Respondent further submitted that the disciplinary proceedings commenced on 6 September 2017 and it was unacceptable for it to be postponed to January 2018. The hearing was postponed to finalise the evidence of the Applicants’ witnesses and Mr Oor was well aware of that.

[30] The chairperson considered the request for a postponement and he had refused the request based on a number of factors, inter alia the delay in finalising the proceedings, the fact that there was no indication of a possible date to finalise the disciplinary hearing prior to January 2018 and because there was no reason advanced at all to explain or justify Mr Oor’s absence on 14 November 2017.

[31] The principles applicable in an application for postponement are trite and it is evident from the transcript that not only was Mr Wessels aware of those principles, but he had in fact considered and applied them when he was faced with an application for postponement on 14 November 2017.

Analysis

[32] The Applicants’ case is that Mr Wessels denied them their right to representation by their chosen representative at the continued hearing on 14 November 2017, in contravention of item 4(1) of Schedule 8 and clause 12.2.4(c) of the Code.

[33] Item 4(1) of Schedule 8 of the LRA provides as follows:

Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that

the employee can reasonably understand.

The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

[34] Clause 12.2.4(c) of the Code provides as follows:

The written notice of the disciplinary hearing must be in the form of Annexure E and provide -

(c) information on the rights of the employee to representation by a fellow employee or a recognised trade union, and to bring witnesses to the hearing.

[35] There is no merit in this ground for procedural unfairness. I say so for a number of reasons.

[36] Firstly, item 4(1) of Schedule 8 provides an employee with the right to be assisted by a trade union representative or fellow employee. No provision is made for a ‘chosen’ or preferred representative, nor is such a right contained in clause 12.2.4(c) of the Code.

[37] The facts placed before this Court show that the Applicants were entitled to representation by their trade union, NEHAWU, and that such a right was afforded from the onset and remained intact throughout the disciplinary proceedings.

[38] Secondly, the Applicants elected to be represented by Mr Oor, an election neither the Respondent nor Mr Wessels interfered with or objected to at any point in the proceedings. In fact, the evidence shows that the disciplinary hearing was postponed on 6 September 2017 to a future date, which suited Mr Oor and which date he had agreed to. The disciplinary hearing was once again postponed on 28 September 2017 to 2 November 2017, also a date that suited Mr Oor and which he had agreed to. When Mr Oor was absent on 2 November 2017, he produced a sick certificate and on account of his unavailability, the disciplinary hearing did not proceed, but was postponed. The facts placed before me do not paint a picture of a chairperson who had denied the Applicants their right to representation, but rather of a chairperson who attempted to accommodate the availability of and to ensure the participation of the Applicant’s representative.

[39] Thirdly, it is evident from the arguments presented on behalf of the Applicants that the real issue is rather the fact that Mr Wessels

refused to postpone the hearing on 14 November 2017 and proceeded with it in the absence of Mr Oor.

[40] The refusal to grant a postponement is not equal to denying the right to representation. The Applicants’ pleaded case is not that their hearing was procedurally unfair because a postponement was refused when it should have been granted, but their case is that they were denied their right to be represented by their chosen representative at the continued hearing on 14 November 2017. I already dealt with the issue of pleadings and the importance thereof supra and there is no need to repeat the principles that are also applicable on this aspect of the Applicants’ claim.

[41] Even if I am wrong on this, it is evident that when Mr Wessels was confronted with an application for postponement, he was not told why Mr Oor was not present and when he would be available to proceed with the hearing. A vague averment was made to the effect that Mr Coetzee will liaise with Mr Oor regarding his availability in January 2018. Those were important factors to be considered in an application for postponement. The chairperson considered the facts placed before him, applied the applicable legal principles and exercised his discretion to refuse the postponement. No case was made out to show that the refusal to postpone was unfair. In any event, that is not the pleaded case.

[42] The fact that Mr Oor was not personally present to represent the Applicants, did not take away their right to be represented by a NEHAWU representative. In my view, Mr Oor has a lot to answer and he has to take responsibility for the manner in which the Applicants’

disciplinary hearing was conducted. Not only did he not show up, with no proper application for postponement or explanation for his absence, but he assisted the Applicants to present a false version at the disciplinary hearing. Mr Oor led the evidence of witnesses, and that under oath, to present a version that they were not on strike as alleged by the Respondent, but that they were on active duty, when that was not a true and correct version.

[43] The right to representation is core to the principle of fairness[9] and in casu that right was afforded to the Applicants. How their representative, Mr Oor, executed the task of representing the Applicants, is a different issue.

The appeal

[44] The Applicants’ second ground for procedural unfairness is that the Respondent appointed Mr Kriel to decide the appeal against their dismissal in contravention of clause 13.3(a) of the Code.

[45] The Applicants’ case is that their appeal was decided and dismissed in a document authored by the acting chairperson of the respondent’s management committee, Mr Kriel, dated 15 December 2017 (the appeal decision). They submitted that from the text of the appeal decision it is patently obvious that the decision to dismiss the Applicants was taken by Mr Kriel alone, and not the Respondent’s management committee as the decision is filled with no less than 25 instances in which MR Kriel refers to himself and not the management committee taking delivery of documents, perusing documents, taking note of issues, reacting to the appeal, coming to conclusions and agreeing with the findings made by Mr Wessels. Mr Kriel’s assertion that he had consulted members of the management committee is a transparent and feeble attempt at giving legitimacy to the appeal decision.

[46] If Mr Kriel had decided the appeal on his own, it would be permissible only if he was not involved in the decision to institute the disciplinary procedures against the Applicants. However, Mr Kriel was indeed involved as he had signed both of the ultimatums delivered to the Applicants during the strike, he was part of the Respondent’s delegation which attempted to engage with the Applicants during the meeting of 25 August 2017, he had refused the first application for a postponement of the disciplinary hearing on 5 September 2017 and he co-signed all of the notifications of disciplinary hearing in which the charge against the Applicants is set out.

[47] In opposition the Respondent submitted that the appeal was decided by the Respondent's management committee, and not by Mr Kriel on his own and therefore not in contravention of the Code.

[48] In short the Applicants’ case is that Mr Kriel decided their appeal on his own and this was in contravention of clause 13.3(a) of the Respondent’s Code. Mr Kriel’s intimate involvement with the disciplinary charges against the Applicants, made it unjust and unfair for him to have decided their appeal and the decision to refuse the appeal, constitutes procedural unfairness.

[49] Clause 13.3(a) of the Code provides that:

The appeal authority, who shall consider the appeal, shall be the Management Committee or an employee appointed by the Management Committee, who-

(a) Was not involved in the decision to institute the disciplinary proceedings.

[50] It is common cause that the Applicants’ appeal was dismissed in a document authored and signed by Mr Kriel as the chairperson of the Respondent’s management committee.

[51] The appeal decision clearly states the following:

"Ek het gelet op die inhoud van die kennisgewing rakende diens beëindiging van die 20 werknemers en gemerk dat die Bestuurskomitee daarin aangedui word as die appèlgesag. Ek is ook deur uself daarop gewys dat die Bestuurskomitee die versoek tot appèl moet hanteer."

Ek het die inhoud van NEHAWU namens die 20 werknemers se versoek vir 'n appèl tesame met die skrywe en relevante dokumentasie deeglik bestudeer en het ek kennis geneem dat die appèlaansoek handel oor die proseduriële sowel as die substantiewe billikheid van die dissiplinêre verhoor. Ek reageer derhalwe hiermee soos volg op NEHAWU se versoek vir 'n appèl namens die Bestuurskomitee uit hoofde van my aanstelling as waarnemende voorsitter van die Bestuurskomitee. Neem asseblief kennis dat ek lede van die Bestuurskomitee ook in hierdie verband geraadpleeg het alvorens ek op die appèl aansoek gereageer het.”

[52] On a proper interpretation of clause 13.3(a) of the Code, an employee who was involved in the decision to institute disciplinary

proceedings may not be appointed to deal with the appeal on his own, but is not disqualified to form part of the Management Committee

deciding the appeal.

[53] Mr Kriel was the chairperson of the management committee and he was involved in the appeal in that capacity. He also signed the appeal decision in that capacity and there is accordingly nothing sinister in him signing the document.

[54] It is evident from the wording of the appeal decision that Mr Kriel did not decide the appeal on his own, but that he had responded to the appeal and communicated the outcome thereof on behalf of the management committee and in his capacity as the chairperson, after the members of the management committee were consulted on the appeal.

[55] This ground for procedural unfairness has no merit and this Court cannot but conclude that the Applicants’ dismissal was procedurally

fair.

Substantive unfairness

[56] In closing argument Mr van Vuuren submitted that the substantive fairness of the Applicants’ dismissal comes down to two questions being: whether the Respondent had provoked the strike and whether dismissal was an appropriate sanction. I will deal with the two issues in turn.

Provocation

[57] The first issue to be decided is whether the Respondent had provoked the unprotected strike action.

[58] The starting point is the Applicants’ pleaded case in respect of substantive unfairness. The pleaded case contained certain averments that are of a procedural nature, rather than substantive, and those are not repeated here. The pleaded case on substantive fairness is as follows:

Mr Wessels' decision that dismissal was the only appropriate sanction for the Applicants’ participation in an unprotected strike, was unreasonable in terms of items 3(4), 3(5), 6(1) and 7(b)(iv) of Schedule 8 to the LRA and clauses 2.1,7.7, 9.22 and 12.4.1 of the Code in that:

1. Mr Wessels decided that the Applicants’ grievance against the Respondent could not be taken into account in determining a suitable sanction for their misconduct.

2. Mr Wessels failed to heed the principle that in general dismissal is not a suitable sanction for first-time offenders and did not take the Applicants’ clean disciplinary records (prior to the disciplinary hearing) into account at all.

3. Mr Wessels did not consider the suitability of any of the other sanctions indicated in the Code.

4. Mr Wessels concluded that Applicants' participation in an unprotected strike had irreparably broken down the trust relationship between themselves and the Respondent, despite:

a. The actions of the Applicants were clearly being aimed at addressing their complaints in order to reconcile them with the Respondent;

b. The Respondent's failure to suspend the Applicants indicating that no breakdown in the trust relationship had occurred; and

c. There being no evidence before Wessels that the Respondent had complained of an irreparable breakdown in the employer employee relationship.

[59] In the pre-trial minute the parties agreed that the issues to be decided were as follows:

1. Whether the Respondent had satisfactorily and meaningfully attended to the Applicants’ grievances;

2. Whether the gathering at the maintenance depot from 17 – 31 August 2017 included intimidation of employees of the Respondent not gathered there or had caused any significant damage to the Respondent or irrigators;

3. Whether the Applicants’ disciplinary hearing was procedurally fair;

4. Whether Mr Wessels’ recommendation for the immediate dismissal of the Applicants for participating in an unprotective strike was an appropriate sanction and substantively fair

5. Whether the dismissal of the Applicants’ appeal was procedurally and substantively fair.

[60] In the pre-trial minute and as part of the issues to be recorded in terms of clause 10.4.2.2 of the Practice Manual for the Labour Court, the Applicants for the first time alleged that the Respondent provoked the strike action by refusing to address the Applicants’

grievances.

[61] In the supplementary pre-trial minute the issues for determination in respect of substantive fairness are recorded as follows:

1. Whether the Respondent provoked the strike by the Applicants from 17 to 31 August 2017 by failing to satisfactory and meaningfully attend to the Applicants’ grievances;

2. Whether the sanction of dismissal was appropriate.

[62] The claim relating to provocation has not been pleaded or relied on in the Applicants’ statement of claim. This claim has also not been identified in the pre-trial minute, as one of the issues in dispute.

[63] The alleged failure by Mr Wessels to take the Applicants’ grievances against the Respondent into account in determining a suitable sanction for their misconduct, as pleaded, cannot be equated to provocation by the Respondent and it does not constitute a pleaded case of provocation.

[64] In the pre-trial minute the parties agreed that one of the issues to be decided was whether the Respondent had satisfactorily and

meaningfully attended to the Applicants’ grievances. This question also does not equate to provocation or a pleaded case to that effect.

[65] It is evident that it was only when the parties recorded the issues, in compliance with clause 10.4.2.2 of the Practice Manual, that the issue of provocation was raised for the first time. Considering the pleadings and the issues to be decided, as recorded in the pre-trial minute, it is clear that provocation was not pleaded and was not recorded as an issue to be decided. In my view this is problematic.

[66] I already alluded to the dicta of the LAC in SA Breweries where it was held that a pleading binds the pleader, subject only to the allowing of an amendment, either by agreement with the adversary, or with the leave of the court. The case pleaded cannot be changed or expanded by the terms of a pre-trial minute and if the pleaded case is so expanded, it is necessary for that change go hand in hand with a necessary amendment.

[67] In argument Mr van Vuuren was invited to show where provocation was pleaded or at least foreshadowed in the Applicants’ statement

of case and he conceded that it was not there. It is common cause that the Applicants never sought to amend their pleadings to bring it in line with the claim that the strike was provoked.

[68] As already alluded to supra, the Court does not provide its own terms of reference or conduct its own enquiry into the merits of the case, but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. It is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.

[69] In SA Breweries the LAC emphasized that making up one’s case as you go along is an anathema to orderly litigation and cannot be tolerated by a court. It is concerning that the Applicants, at all relevant times, presented and insisted that they were not on strike, that they pleaded no case for provocation and as the case went on, it morphed into one where they moved away from the denial that they were on strike to a place where they conceded that they participated in an unprotected strike, but that the Respondent was to be blamed, so to speak, because it had provoked the strike.

[70] Provocation was not part of the Applicants’ pleaded case and no amendment had been filed to broaden the scope of the pleadings to include it as justification for the Applicants’ conduct, when they embarked on an unprotected strike in August 2017. It was not raised at all in the Applicants’ statement of case, let alone sufficiently detailed to enable the Respondent to respond

thereto and to be informed thereof prior to filing it statement of response. In view of the authorities referred to supra, it is as a result, not an issue for this Court to decide, as the Court cannot decided a case that was not pleaded.

Appropriateness of the sanction

[71] The last issue to be decided in the substantive fairness of the Applicants’ dismissal, is whether dismissal was an appropriate

sanction.

[72] The result and the reality of strike action that takes place in breach of the provisions of sections 64 or 65 of the LRA, are that the striking employees are deprived of the protection of the LRA. They lose the protection against disciplinary action as participation in an unprotected strike is classified as misconduct which may constitute a fair reason for dismissal[10]. The prospect of being disciplined and dismissed, is real.

[73] The legal principles to be applied in a dispute concerning a dismissal for participation in an unprotected strike are well established. Item 6(1) of the Code of Good Practice contained in Schedule 8 of the Act (Schedule 8) provides as follows in respect of substantive fairness:

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.

[74] The Labour Appeal Court in NUMSA v CBI Electric African Cables[11] observed that it is clear from the provisions of section 68(5) of the LRA that a Court called upon to determine the fairness of a dismissal effected on the ground of participation in an unprotected strike should consider, in addition to Item 6 of Schedule 8, the provisions of Item 7.

[75] Item 7 of the Code regulates dismissal for misconduct more generally and as participation in unprotected strike action is misconduct, it should logically apply. Item 7 requires the determination of whether dismissal was an appropriate sanction for contravention of the relevant rule or standard.

[76] Item 7 provides that:

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 work-place; 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 with an appropriate sanction for the contravention of the rule or standard.

[77] The determination of the substantive fairness of a strike related dismissal must therefore take place in two stages. Firstly, under

Item 6 when the strike related enquiry takes place and secondly under Item 7 of Schedule 8. There is an obvious degree of overlap between Item 6 and 7.

Item 6

[78] Item 6(1) provides that substantive fairness should be determined with reference to the specific factors. The first is the seriousness of the contravention of the LRA.

[79] Section 65(1)(d)(i) and (ii) of the LRA provide that no person may take part in a strike or in any conduct in contemplation or furtherance of a strike if that person is engaged in an essential service or a maintenance service. The LRA provides that all disputes in essential

services must be conciliated and arbitrated.

[80] In casu it is undisputed that the Applicants were engaged in essential services. The contravention of the LRA is serious where the employer is an essential service and participation in strike action is specifically prohibited by section 65 of the LRA. This is not a case where the non-compliance with the provisions of the LRA was insignificant or of a technical nature. The disregard for the prohibition of strike action (as per section 65) in the environment within which the Applicants were employed and the provisions of the LRA, is gross and blatant.

[81] The second factor to consider is the attempts made to comply with the LRA.

[82] In SA Commercial Catering and Allied Workers Union and Others v Sun City[12] this Court held that:

The distinction between a protected and unprotected strike is not an academic one. It is one that ought to have consequences. The Act establishes dispute resolution procedures that are inexpensive, expeditious and efficient. If the employees felt aggrieved, they could have and should have explored legitimate remedies to address their concerns.

[83] In casu there was no attempt to comply with the provisions of the LRA, in fact the strike action was in direct contravention of the provisions of the LRA. Being engaged in essential services, the Applicants had alternative remedies available, as provided for in the LRA. There was no attempt to resolve their issues by way of the available remedies and during the trial the Applicants were unable to provide an explanation as to why they have not pursued their statutory remedies but instead resorted to illegal strike action.

[84] The last factor is whether the strike was in response to unjustified conduct by the employer. Provocation was not part of the Applicants’ pleaded case and this issue was dealt with supra. Be that as it may, the facts placed before this Court show that the Applicants’ allegation of provocation was an afterthought and a defence that only came to life after they conceded that their conduct amounted to unprotected strike action. The facts do not support a finding of provocation, instead the strike in casu was planned and premeditated and not a spontaneous and brief response to the Respondent’s conduct.

[85] The Applicants participated in unprotected strike action and it constituted misconduct. They should have been aware that the strike

was unprotected as they were engaged in essential services and that they should not participate in such conduct. Mr Coetzee was adamant in his testimony that they did not regard what they were doing as a strike at the time. He was equally adamant that their union officials never informed them that their action constituted an unprotected strike. If this Court were to accept that they were unaware of the fact that their conduct constituted unprotected strike action, this position changed when the Applicants were issued with a first ultimatum on 18 August 2017, one day after they commenced with strike action. In the ultimatum it was communicated clearly to the Applicants that they were participating in an unprotected strike, which was in contravention with the provisions of the LRA.

[86] The Applicants ignored the first ultimatum, persisted with their conduct and a final ultimatum was issued on 21 August 2017, wherein it was reiterated that the Applicants were participating in an unprotected strike and that should they fail to return to work, they could face dismissal. The Applicants ignored the second ultimatum and persisted with their strike action until 31 August 2017. At this point the Applicants could no longer be ignorant as to the status of their conduct or unaware of the fact that they were participating in unprotected strike action. More so since their trade union was involved. This Court cannot accept that an established trade union such as NEHAWU was unaware of the fact that strike action in essential services is prohibited in terms of the LRA and that NEHAWU could be of the view that the Applicants’ conduct between 17 and 31 August 2017 constituted anything but unprotected strike action.

[87] The Applicants were made aware of the fact that their conduct constituted unprotected strike action early in the strike and no reason was advanced as to how they could be under any impression, after 18 August 2017, that their conduct was not in contravention of the LRA. The continued participation in unprotected strike action after the issuing of the ultimata, was deliberate and at the Applicants’ own peril.

[88] In summary: the Applicants committed misconduct by participating in unprotected strike action. The non-compliance with the provisions of the LRA is serious, in that the LRA prohibits strike action in essential services and the Applicants’ conduct displayed a total disregard for the statutory provisions applicable to them.

Item 7

[89] The employees participated in unprotected strike action and such participation constitutes misconduct. The LAC[13] approved the view that Item 6 is neither exhaustive nor rigid and that other factors are also relevant. Therefore, I have to consider the provisions of Item 7 of Schedule 8 as well as other relevant factors to determine the fairness of the strike related dismissal.

[90] I will deal with the relevant factors as are evident from the evidence presented and as raised by the parties.

The duration of the strike

[91] One of the factors to be considered is the duration of the strike. The Applicants commenced strike action on 17 August 2017 and two ultimata were issued, instructing them to return to work. Had the Applicants accepted and complied with the instruction and returned to work, the employment relationship would have been restored with their rights intact to pursue their issues at the CCMA. The Applicants however persisted with their strike action, notwithstanding instructions to return to work and they only returned to work on 1 September 2017.

[92] The Applicants relied on the dicta in Hendor Steel Supplies v National Union of Metal Workers of SA and Others[14] where the strike lasted for seven weeks and the LAC held that:

Dismissal is manifestly the sanction of the last resort. Hence there is a need to examine the arguments of both parties as to the matter and conduct of the strike to test whether dismissal was proportional to the misconduct

[93] The LAC held that in the circumstances of that case, dismissal was manifestly disproportionate to the misconduct of even a seven-week

long unprotected strike. The Applicants’ submission is in essence that the duration of the strike does not justify dismissal,

as dismissal is the sanction of last resort and in Hendor dismissal was not appropriate, even in circumstances where a strike had lasted for seven weeks.

[94] The Applicants’ reliance on Hendor is misplaced. The facts of this matter are clearly distinguishable from the facts in Hendor, where the trade union did not disregard statutory procedures but in fact referred a dispute to the CCMA and obtained a certificate of outcome and throughout bona fide and reasonably believed that the strike was protected. The union and employees approached the Labour Court to get a ruling and immediately went back to work after the Court had given judgment against them

[95] In casu the Applicants made no attempt to comply with the provisions of the LRA, they were informed on 18 and 21 August 2017 that the strike was unprotected, that they had to return to work and that disciplinary action would follow should they fail to do so. The unprotected strike action lasted for 12 working days, which is unusually long for unprotected strike action to endure, more so in an essential services environment.

[96] The duration of the strike is not insignificant.

The timing of the strike

[97] Another factor to be considered is the timing of the strike.

[98] The Respondent’s contention that the strike was timed during a critical time of the year in order to cause damage to the Respondent’s ability to supply water, is disputed. Mr Coetzee testified that August is a dry time of year during which maintenance

is done to the canals. The Respondent’s employees are permitted to take leave during this time as opposed to the busy time of December and January when no leave may be taken. Mr Van Niekerk testified that at the time of the strike an important canal had been shut down for a week for maintenance to be done on it.

[99] Mr Grundling submitted that Mr Van Niekerk's evidence that the timing of the strike was calculated to cause harm should be accepted on the probabilities. The fact that no real harm was caused by the unprotected strike action is the direct result of measures implemented by the Respondent. The Applicants cannot benefit from steps taken by the Respondent itself.

[100] In my view the timing of the strike particularly for the period 17 – 31 August 2017 is of no moment. The facts placed before this Court show that the Respondent is responsible to supply water to irrigators, farmers and households. It is undisputable that the provision of water is essential and a basic right individuals are entitled to. Any conduct that has the potential to interfere with the duty to provide water or the right to be provided with water, is serious, no matter when it happens. It is for this very reason that the Respondent is declared an essential service and strike action is prohibited. It is not less serious because it happened in August rather than December. It is serious any day of the year as the whole community would be affected if the supply of water is disrupted by strike action.

[101] Van Niekerk's evidence to the effect that the strike was planned is accepted on the probabilities. The evidence indicated that the

Respondent’s employees had no reason to gather at Oukampl in the morning and it is improbable that all the employees would have gathered at the maintenance depot on the morning of 17 August 2017 spontaneously. That the strike was planned and premeditated is evident.

First offence

[102] The Applicants submitted that the unprotected strike was the Applicants’ first offence and it did not constitute the kind of gross first offence misconduct for which dismissal is an appropriate sanction.

[103] The LAC held in Mzeku and Others v Volkswagen SA (Pty) Ltd and Others[15] :

Once there is no acceptable explanation for the appellants' conduct, then it has to be accepted that the appellants were guilty of unacceptable conduct which was a serious breach of their contracts of employment with the first respondent. In such a case the only way in which the appellants' dismissal can justifiably be said to be substantively unfair is if it can be said that dismissal was not an appropriate sanction. In this case it must be borne in mind that the appellants refused to work or failed to perform work for over two weeks and, in the process, caused the first respondent huge financial losses. In our view there can be no doubt that dismissal would be an appropriate sanction if it is properly established that they were guilty of such misconduct.

[104] In Country Fair Foods (Epping), a division of Astral Operations Ltd v Food and Allied Workers Union and Others[16] the LAC held that:

It has repeatedly been stated by our courts that engaging in an illegal strike constitutes serious and unacceptable misconduct by workers in respect of which an employer is entitled to take disciplinary action. Dismissal has been found to be an appropriate sanction where an unprotected strike was planned to create maximum pressure and undermine the authority of the employer; and where there has not been compliance with an ultimatum given to return to work, even when the ultimatum was not one in a conventional sense and where the strike has been of a short duration.

[105] Mr Grundling submitted that the above dicta apply in casu as the Applicants equally failed to present an acceptable explanation for their conduct and having regard to all the circumstances, dismissal was an appropriate sanction.

[106] Dismissal may be appropriate, even for a first offence, depending on the circumstances. The question this Court should consider is whether the Applicants should escape dismissal on account of the fact that this was their first offence. In my view the answer is no.

[107] The conduct of the Applicants was serious and a final written warning or any other sanction short of dismissal would not have been

appropriate. In fact, it would have served no purpose as the aim or purpose of progressive discipline is undercut by the absence of remorse.

[108] During the trial concern was expressed about the absence of remorse.

[109] Mr Coetzee was specifically asked about the issue of remorse and he clarified that he was sorry “for the fact that our circumstances changed and the fact that we cannot find a solution to our problems during the times that we tried and that it ended up in a dismissal, and if it was possible we can turn back time just to resolve things.”

[110] It was evident from his testimony that the issues the Applicants had with the Respondent are still unresolved and if fact, Mr Coetzee

testified that ‘some of the issues worsened.’ There was no unequivocal undertaking that should the Applicants be reinstated, they would do things differently to resolve their issues or that they would not resort to unprotected strike action again.

[111] In re-examination Mr Coetzee was asked: “Are you sorry that you took part in the strike?” Without hesitation Mr Coetzee responded “I am not sorry that I took part in the strike.” Mr Coetzee reiterated that he had believed that it was the only method to get the Respondent’s attention.

[112] In clarification Mr Coetzee conceded that he was now aware that there were other remedies to resolve the issues with the Respondent, but he still maintained the position that the strike action was the only way to address the issues with the Respondent.

[113] Mr Coetzee testified that he is sorry that they could not find a solution for their issues with the Respondent. However, he is not

sorry they took the action which they did. Mr van Vuuren submitted that during cross-examination Mr van Niekerk conceded that the

Applicants could not be expected to have remorse for taking part in action which had the aim of resolving their grievances with the Respondent and as such, expecting remorse would be out of place.

[114] In De Beers Consolidated Mines Ltd v CCMA and Others[17] the LAC held that:

This brings me to remorse. It would in my view be difficult for an employer to re - employ an employee who has shown no remorse. Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re - establish the trust which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.

[115] In Theewaterskloof Municipality v SA Local Government Bargaining Council (Western Cape Division) and Others[18]the Court held that:

Where an employee refuses to demonstrate any acceptance of wrongdoing, indicates no degree whatsoever of remorse, makes no move to correct what he has done, and stands firm with an attitude of opposition towards his employer, then such employee through his own conduct undercuts the applicability of corrective or progressive discipline. In this case the employer concluded that the point had been reached where the employment of Mr Henn could not be continued. I see no good ground for declaring that it was unfair of it to do so.

[116] The Constitutional Court in Rustenburg Platinum Mine v SA Equity Workers Association obo Bester and Others[19] held that:

Even at this late stage, there was no recognition that he had behaved badly during the hearing and more so, that he had once again insulted his colleagues. An acknowledgment of wrongdoing by Mr Bester would have gone a long way in evidencing the possibility of rehabilitation including an assurance to the applicant that similar misconduct would not be repeated in the future.

[117] In my view the evidence of Mr Coetzee not only displayed a lack of remorse, but it also displayed a serious lack of insight into the wrongfulness of the Applicants’ conduct and the fact that other remedies were available and the strike action was not the only possible means to resolve their grievances with the Respondent. What is more concerning, is that even in hindsight with the benefit of knowing that alternative remedies are available, Mr Coetzee was not prepared to apologise for not exercising their statutory remedies and the could not give an unequivocal undertaking that the Applicants’ conduct to participate in unprotected strike action would not be repeated.

[118] In fact, Mr Coetzee testified that the grievances they had, are worse and that they are still maintaining the position that strike action was the only means to resolve the issues. The lack of remorse and insight is astonishing and a factor that does not favour the Applicants’ case at all. This Court is not convinced that there is a possibility of rehabilitation, absent any insight and an assurance that similar misconduct would not be repeated in the future.

Conduct during the strike

[119] The Applicants did not engage in violent conduct during the strike, however they took the keys of vehicles and motorbikes belonging to the Respondent and used those for unauthorized purposes. They also took the keys of the sluices. This conduct cannot be overlooked

merely because the strike was not violent.

[120] In any event, a strike in an essential service providing water to a community, has the intention and potential to cause harm, another

factor that weighs heavily against the Applicants.

The trust relationship

[121] The Applicants made much of the fact that following the end of the strike, and notwithstanding them being charged with misconduct, a disciplinary hearing scheduled and held, none of them were suspended. Mr Coetzee testified that the Applicants continued to work normally and that there were harmonious relations between them and the Respondent’s management up until they were dismissed on 12 December 2017. According to the Applicants, this is indicative of the fact that the trust relationship had not irretrievably broken down.

[122] Mr Van Niekerk testified that the investigation had been completed, that there was no reason or purpose to suspend that Applicants and that the Respondent could not employ and pay other people to do the work the Applicants were supposed to do and still pay the Applicants’ their salaries.

[123] Mr van Vuuren submitted that Mr Van Niekerk’s contention that the Respondent only continued to engage the Applicants’ services as usual following the unprotected strike, was because it would have been too expensive to suspend them and get an alternative workforce in, was opportunistic and contrived. He argued that if the relationship between the Applicants and the Respondent had indeed become intolerable, then the harmonious employment relationship that existed for a period in excess of three months after the unprotected strike ended and the Applicants were dismissed, could not have existed.

[124] The principles applicable to suspension are trite. The Courts have considered the meaning of suspension within the context of disciplinary action and there are numerous authorities that held that suspension could be precautionary, pending disciplinary proceedings or it could be suspension in the form of a disciplinary

sanction. A precautionary suspension serves the purpose of inter alia protecting the integrity of the disciplinary enquiry where the employee’s continued presence at work would endanger the safety or wellbeing of any person.

[125] Let this be clear: the suspension of an employee in the context of disciplinary action, serves a very specific purpose and the suspension of an employee as a precautionary measure, is to be done only if the grounds on which it will be permissible to suspend the employee as a precautionary measure, are present.

[126] In the event that an employer does not suspend an employee, pending the finalisation of a disciplinary process, the grounds which would render it permissible, such as that the employee’s presence would pose a danger or could interfere with an ongoing investigation, do in all probability not exist.

[127] Section 186(2)(b) of the LRA defines an unfair labour practice as any unfair act or omission that arises between an employer and employee involving inter alia the unfair suspension of an employee. In my view, an employer would invite an unfair labour practice dispute relating to suspension if an employee is suspended pending a disciplinary hearing if there is no justification to suspend such employee.

[128] In casu there was no reason for a precautionary suspension, pending the finalisation of the disciplinary hearing. The Respondent's disciplinary code does not provide for suspension after the investigation into the alleged misconduct had been completed and the Respondent could not anticipate the finding of the chairperson of the disciplinary hearing.

[129] Considering the principles applicable to suspension and the facts presented, I cannot find that there is anything opportunistic or contrived about the Respondent’s approach or decision not to suspend the Applicants after they ceased their strike action and pending the finalisation of the disciplinary enquiry.

[130] The fact that the Applicants were not suspended pending their disciplinary hearing is certainly not an indication that the trust

relationship remained intact. All it is indicative of, is that the Respondent had no reason to place them on a precautionary suspension.

The breakdown of a trust relationship in a strike context, is not a ground for precautionary suspension and nothing turns of the fact that the Applicants were not suspended.

SASOL Mine

[131] In Sasol Mine Limited v Nhlapo and 941 Other and Others[20](Sasol) the employees engaged in an unprotected strike that lasted from 21 – 23 January 2009. They claimed that thetheir employer, Sasol, had provoked the strike action by not making ‘bonanza’ payments to each employee by January 2019. The employees refused to communicate with the employer and insisted to be addressed by the suspended ‘Local Shop Stewards Council’. Ultimata were issued and ignored and after a disciplinary process was followed, the employees were dismissed.

[132] The LAC found the employees’ dismissal substantively and procedurally fair and concluded that:

Given the serious and dangerous circumstances of the strike, the extent of the contravention of the LRA, the lack of any attempt on the part of the respondents to comply with the provisions of the LRA and the fact that the strike was not in response to any unjustified conduct by the employer, this Court is satisfied that dismissal was the appropriate sanction in the circumstances of this matter.

[133] In casu the parties were invited to make submissions regarding Sasol and its applicability to this matter.

[134] Mr van Vuuren submitted that that Sasol is distinguishable and not applicable. The LAC confirmed the fairness of the dismissal of employees who had taken part in an unprotected

strike and claimed to have been provoked. However, this was done in circumstances where the employees refused to communicate with the employer, the employees disregarded calls by their union to end the strike, the employees caused significant safety concerns and economic harm to the employer, the strike was well planned, the employees denied that their actions constituted a strike, and the strike was not in response to any unjustified conduct by the employer.

[135] Mr van Vuuren argued that none of the aforesaid factors are evident in this matter in casu as the unprotected strike was unplanned, clearly provoked by the Respondent, no damage or harm was caused to the Respondent and the Applicants believed that their action was inducing the Respondent to deal with their grievances, which grievances were serious and legitimate.

[136] Mr Grundling on the other hand submitted that Sasol Mine is apposite in this matter on several levels. The Applicants unreasonably refused to engage with the Respondent during the strike

action and insisted to be addressed by the full Board of the Respondent and not the delegated representatives and the strike action cannot be said to have been provoked by the Respondent. The Applicants in casu did not respond to the ultimata issued by the Respondent.

[137] Mr Grundling submitted the duration of the strike in Sasol Mine was two days, whereas the strike in casu was 12 working days and that the dangerous circumstances of the strike in Sasol Mine are averaged out by the long duration of the strike in this matter.

[138] In my view, considering the dicta in Sasol Mines and the facts placed before this Court, and considering that the strike took place in an essential service providing water, the extent of the contravention of the LRA, the lack of any attempt on the part of the Applicants to comply with the provisions of the LRA and the fact that the strike was not in response to any unjustified conduct by the Respondent, dismissal was the appropriate sanction in the circumstances of this matter.

[139] The Applicants’ dismissal was substantively fair.

Costs

[140] Costs should be considered against the provisions of section 162 of the LRA and according to the requirements of the law and fairness. This Court has a very wide discretion in awarding costs.

[141] Mr van Vuuren submitted that the rule that cost should follow the result is to be applied in this matter, to include the costs that were previously reserved.

[142] Mr Grundling submitted Applicant should in law and fairness be ordered to pay the costs There is no longer any relationship between the Applicant and the Respondent and the award of costs against the Applicant will not impact on any continued relationship. He further argued that the Respondent was called to answer a meritless case, where the version that the Applicants presented at their disciplinary hearing is totally divorced from the version they presented at Court. The Respondent receives income from the State and from the community for the services it renders and it would not be in the interest of justice to expect from the Respondent to use those funds to fund meritless litigation. As NEHAWU has aligned itself with this case, it should pay the costs.

[143] In Zungu v Premier of Kwa Zulu-Natal and Others[21] the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[144] The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation.

[145] In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[22] it was emphasized that:‘…unless there are sound reasons which dictate a different approach, it is fair that the successful

party be awarded its costs. The successful party has been compelled to engage in litigation and incur legal costs. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court, whether as applicant in launching proceedings or as respondent opposing proceedings.’

[146] This is a case where the Court has to strike a balance and in my view it is appropriate to make a cost order.

[147] One of the factors to be considered, is the conduct of the parties. In casu NEHAWU acting on behalf of its members, failed to ensure that unprotected strike action did not happen, it presented a false version at the disciplinary hearing and pursued a case on trial that was not properly pleaded. The Applicants approached this Court with a case which had no merit and of which there was no consideration of the prospects of success. This is a case that should not have been brought or prosecuted in the first place. The Respondent was compelled to oppose it and is entitled to the cost incurred in doing so.

[148] In the premises, I make the following order:

Order

1. The Applicant’s case is dismissed;

2. The Applicant (NEHAWU) is ordered to pay the Respondent’s costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Representatives:

For the Applicant: Advocate S van Vuuren

Instructed by S W Nkala Attorneys

For the Respondent: Advocate R Grundlingh

Instructed by Lange Carr & Wessels Inc Attorneys

[1] Chemical, Energy,Paper, Printing, Wood and Allied Workers Union v CTP Ltd and another (2013) 4 BLLR 378 (LC).

[2] Pleading: Principles and Practice at 8-9.

[3] (2015) 36 ILJ 677 (LC)

[4] (2018) 39 ILJ 189 (LAC)

[5] At par 8.

[6] See: Price N.O. v Allied - JBS Building Society 1980 (3) SA (AD) 874 at 882 D-E; Zondo v St Marks Church (2015) 36 ILJ 1386 (LC) at [10] – [11].

[7] ( 966/2002) ZALC 53 at para 8 and 9.

[8] Act 66 of 1995, as amended.

[9] ITT Flygt (Pty) Ltd v Odgers and Others (JR948/07) [2009] ZALC 72 (30 July 2009) at para 29

[10] Section 68(5) of the LRA.

[11] (2014) 1 BLLR 31 (LAC).

[12] (2018) 39 ILJ 436 (LC) at para 81.

[13] (2014) 1 BLLR 31 (LAC) at paragraph 30.

[14] (2009) 30 ILJ 2376 (LAC).

[15] (2001) 22 ILJ 1575 (LAC) at para 17.

[16] (2018) 39 ILJ 1953 (LAC) at para 22.

[17] (2000) 21 ILJ 1051 (LAC) at para 25.

[18] (2010) 31 ILJ 2475 (LC) at para 37.

[19] (2018) 39 ILJ 1503 (CC) at para 60.

[20] (2021) 42 ILJ 2589 (LAC).

[21] (2018) 39 ILJ 523 (CC) at para 24.

[22] (2012) 33 ILJ 2117 (LC) at para p 2119 I-J.