Amcu and Others v Royal Bafokeng Platinum Ltd and Others

• Jurisdiction: South Africa
• Citation: 2020 (3) SA 1 (CC)

Amcu and Others v Royal Bafokeng Platinum Ltd and Others
2020 (3) SA 1 (CC)

2020 (3) SA p1

Citation	2020 (3) SA 1 (CC)
Case No	CCT 181/18; [2020] ZACC 1
Court	Constitutional Court
Judge	Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J and Theron J
Heard	January 23, 2020
Judgment	January 23, 2020
Counsel	F Boda SC (with R Itzkin) for the applicants.; AT Myburgh SC (with MJ van As) for the first respondent.; G Malindi SC (with S Nhlapo) for the fourth respondent, the Minister of Labour.

Flynote : Sleutelwoorde

Labour law — Dismissal — Dismissal for operational requirements — Collective agreement between employer and majority union giving union exclusive right to be consulted on dismissals due to operational requirements — Whether minority union or its individual members had right to be consulted — Labour Relations Act 66 of 1995, s 189(1).

Headnote : Kopnota

Second and third respondent trade unions were party to a collective agreement with first respondent company. First applicant was a union not party to the agreement and second applicant and the further applicants were its members. (See [1], [4] and [9].)

First respondent entered into a retrenchment process and to this end consulted second and third respondents (see [9]).

The Labour Relations Act 66 of 1995 requires, in this respect, that where there is a collective agreement and an employer contemplates dismissing employees due to operational requirements, the employer need consult only those persons the agreement requires them to consult (see [29]). Here the agreement did not require first respondent to consult with first or second or the other applicants, and it did not do so (see [9]).

First respondent later, pursuant to the collective agreement, entered an agreement with second and third respondents on who would be dismissed, and thereafter dismissed those persons (see [4] and [10]). They included members of first applicant, and it came later to challenge their dismissals (see [11]).

The matter began in the Commission for Conciliation Mediation and Arbitration, which ruled that it had no jurisdiction. From there it proceeded to the Labour Court, where applicants challenged the constitutionality of

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ss 189(1)(a) – (c) and 23(1)(d) of the Act. (The latter provides that a collective agreement binds employees who are not members of the trade unions party to the agreement.) (See [12] – [13] and [29].)

First applicant's case was, apparently, that by not giving minority unions a right to be consulted, s 189(1) infringed their members' right to fair labour practices (see [5], [7], [13], [15], [28] and [58]); and further that s 23(1)(d) was procedurally unfair and thus irrational and unconstitutional, in allowing for the extending of retrenchment agreements to minority unions' members in circumstances where those unions had not been consulted thereon (see [6], [13] and [19]).

When the Labour Court dismissed the claim, applicants made appeal to the Labour Appeal Court, which ultimately dismissed the appeal (see [14] and [16]).

Applicants then applied to the Constitutional Court for leave to appeal (see [20]).

The court, per Froneman J for the majority, gave leave but dismissed the appeal (see [132]). Froneman J considered that:

•

Section 189(1) had been consistently interpreted to not require individual consultation (see [108]);

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Textually, s 23(1) of the Constitution, the right to fair labour practices, did not give an individual a right to be consulted in a retrenchment process (see [118] and [123]); and

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Nor did s 189(1) of the Act in the situation of dismissals based on operational requirements (see [118] and [130]).

•

Non-inclusion of an individual's right in s 189 was rational (see [119] – [120] and [126]);

•

The s 189 process was procedurally fair (see [126]);

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It accorded with international practice and standards (see [126]); and

•

Even were s 189 taken to limit a constitutional right, such a limit would be justifiable (see [130]).

•

Moreover, any collective agreement on dismissal extended under s 23(1)(d) of the Act to non-contracting parties could, if need be, be subjected to legality review (see [128]).

Theron J, concurring, considered why it was appropriate to test s 189(1) against a standard of rationality rather than reasonableness (see [205] – [207] and [211]); and explained further why the court ought not adjudicate s 189(1)'s alleged limitation of the constitutional rights to equality and freedom of association (see [205] and [210], and ss 9(1) and 18 of the Constitution).

Ledwaba AJ, writing for the minority, would have granted leave to appeal and upheld the appeal in part (see [99]). In his view:

•

There was authority for fairness requiring consultation with all employees liable to retrenchment (see [46]);

•

Section 189(1) limited the right to fair labour practices of employees excluded from consultation (see [65]);

•

The limit was unreasonable and unjustifiable (see [65] and [85]). (An obligation of inclusive consultation would not affect an employer's right to dismiss by reason of operational requirements and would not prevent conclusion of collective agreements on retrenchment (see [69] and [74]); while non-consultation would negate the Act's aims of workplace democratisation and labour peace (see [80] and [83]).)

•

The s 23(1)(d) challenge should fail (it was contingent on extension of an agreement concluded without inclusive consultation (see [88]); another remedy was available (see [91]); and any extension could be reviewed (see [92])).

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Ledwaba AJ would inter alia have held s 189(1) unconstitutional and invalid; have suspended the declaration; and ordered the section to be read during the suspension as set out at [99]. (See [99].)

Jafta J, supporting the minority's order, took issue with certain conclusions of the majority judgment. These were that neither the Constitution nor the Labour Relations Act were source of an 'individual right' to consultation; that there was no other source of such a right; and that the only remaining basis for a constitutional challenge, irrationality, was not pleaded. (See [135] – [136] and [203].)

He asserted that:

•

Applicants sought only for first applicant union to be consulted on behalf of its members (see [136]);

•

There were other sources for such entitlement (see [138]);

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These had been pleaded (see [138]);

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As had irrationality (see [139]).

Moreover, in the absence of consultation with first applicant union, the right to fair labour practices, to freedom of association, to form and join a trade union, and to equality, were violated (see [141], [174], [182] and [197]).

Cases cited

Amcu and Others v Chamber of Mines of South Africa and Others 2017 (3) SA 242 (CC) (2017 (6) BCLR 700; [2017] ZACC 3): dictum in para [57] applied

Amcu v Royal Bafokeng Platinum Ltd (2018) 39 ILJ 2205 (LAC): referred to

Atlantis Diesel Engines (Pty) Ltd v National Union of Metalworkers of South Africa 1995 (3) SA 22 (A) ((1994) 15 ILJ 1247): referred to

Aunde SA (Pty) Ltd v Numsa (2011) 32 ILJ 2617 (LAC): referred to

Aviation Union of Southern Africa v SA Airways SOC Ltd (2015) 36 ILJ 3030 (LC): referred to

Baloyi v M & P Manufacturing (2001) 22 ILJ 391 (LAC): referred to

Brenner & Buchman (Pty) Ltd v SACCAWU (1994) 15 ILJ 604 (LAC): referred to

Buthelezi v Municipal Demarcation Board (2004) 25 ILJ 2317 (LAC): referred to

CUSA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC) (2009 (1) BCLR 1; [2009] 1 BLLR 1; (2008) 29 ILJ 2461; [2008] ZACC 15): referred to

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC) (2003 (2) SACR 445; 2003 (12) BCLR 1333; [2003] ZACC 19): referred to

Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC) (2016 (5) BCLR 618; [2016] ZACC 11): referred to

Food and Allied Workers Union v South African Breweries Ltd (2004) 25 ILJ 1979 (LC): referred to

Gavric v Refugee Status Determination Officer and Others 2019 (1) SA 21 (CC) (2019 (1) BCLR 1; [2018] ZACC 38): referred to

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): referred to

Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC) ([1998] 12 BLLR 1209; (1999) 4 LLD 7): referred to

Karachi v Porter Motor Group (2000) 21 ILJ 2043 (LC): referred to

KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal and Others 2013 (4) SA 262 (CC) (2013 (6) BCLR 615; [2013] ZACC 10): referred to

2020 (3) SA p4

Merafong City v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC) (2017 (2) BCLR 182; [2016] ZACC 35): referred to

Mwelase and Others v Director-General, Department of Rural Development and Land Reform and Another 2019 (6) SA 597 (CC) (2019 (11) BCLR 1358; [2019] ZACC 30): referred to

Nandutu and Others v Minister of Home Affairs and Others 2019 (5) SA 325 (CC) (2019 (8) BCLR 938; [2019] ZACC 24): referred to

Naptosa and Others v Minister of Education, Western Cape, and Others 2001 (2) SA 112 (C) ((2001) 22 ILJ 889; 2001 (4) BCLR 388): referred to

National Education Health and Allied Workers Union v University of Cape Town and Others 2003 (3) SA 1 (CC) ((2003) 24 ILJ 95; 2003 (2) BCLR 154; [2002] ZACC 27): referred to

National Union of Metal Workers of South Africa v Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC) ((2003) 24 ILJ 305; 2003 (2) BCLR 182; [2003] 2 BLLR 103; [2002] ZACC 30): applied

National Union of Mineworkers v Alexkor Ltd (2004) 25 ILJ 2034 (LC): referred to

New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC) (1999 (5) BCLR 489; [1999] ZACC 5): referred to

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