Association of Mineworkers and Construction Union (AMCU) v Minister of Mineral Resources and Energy and Others (JA 58/2020) [2021] ZALAC 22; (2021) 42 ILJ 2158 (LAC); [2021] 11 BLLR 1069 (LAC) (23 July 2021)

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[2021] ZALAC 22
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Association of Mineworkers and Construction Union (AMCU) v Minister of Mineral Resources and Energy and Others (JA 58/2020) [2021] ZALAC 22; (2021) 42 ILJ 2158 (LAC); [2021] 11 BLLR 1069 (LAC) (23 July 2021)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 58/2020
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND CONSTRUCTION
UNION
(AMCU)
Appellant
and
MINISTER
OF MINERAL RESOURCES AND ENERGY
First Respondent
CHIEF INSPECTOR
OF MINING
Second Respondent
MINISTER OF
CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
Third Respondent
MINERALS COUNCIL
SOUTH AFRICA
Fourth Respondent
Heard: 13 May
2021
Delivered:(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 23 July 2021.)
Coram: Waglay JP,
Coppin JA and Molefe AJA
JUDGMENT
MOLEFE AJA
[1] This
is an appeal only in respect of the decision of the Labour Court (van
Niekerk J) to make no order as to costs. The issue
is whether the
learned Judge was correct to apply the default rule that the parties
should bear their own costs or whether he should
have applied the
rule that when a party successfully litigated against the State in
constitutional litigation, it is entitled to
its costs.
[2]
The appellant (‘AMCU’) submits that the
court
a quo’s
decision
on costs should
be
set aside as the court applied the wrong legal principles in deciding
what costs order to make and also fundamentally misunderstood
the
factual position
before
it.
The
background facts.
[3]
AMCU
and representatives of the Department of Mineral Resources and
Energy
(“the DMRE”), along with other representative Unions and the
fourth respondent (“the Mineral Council”), as the representatives
of employers, sit together as partners on the Mine Health and Safety
Council (“the MHSC”)
[1]
, a
statutory body established in terms of the Mine Health and Safety
Act
[2]
(“the
MHSA”) that is responsible generally for supervising health and
safety at mines,
including
at least once every two years, arranging and co-ordinating a
tripartite
summit
to review the state of health and safety at mines
[3]
.
The second respondent (“the Chief Inspector”) chairs the MHSC.
The DMRE is responsible
for
the enforcement of the MHSA, and the protection conferred on workers
under it against employers.
[4]
On
13 March 2020, faced with the Covid-19 pandemic, the members of the
MHSC agreed on a joint approach to be taken to protect workers
-in
mines and
minimise
the risk of transmission of Covid-19 in mines, and resolved to
prepare
and
issue Guiding Principles and Guiding Note to ensure that mines took
steps
to
protect mineworkers.
[5]
The Chief Inspector issued Guiding
Principles on 26 March 2020 after taking comments from all the
members of the MHSC, including AMCU.
The Mining Occupational Health
Advisory Committee (“the MOHAC”) a specialist advisory
committee of the MHSC, met on 17 March 2020
and began work on a
comprehensive
Guidance Note. The Minerals Council for its part, issued a “ten-
point” plan for the protection of
mineworkers that it adopted on 18 March 2020.
[6]
The Chief Inspector subsequently issued a
further communique dated 23 April
2020
to mines in relation to start-up of operations . The first respondent
(“the Minister”) conducted inspections at mines to
see whether
workers were being protected, and convened several meetings with
representatives of labour and business to co-ordinate
an industry
response. These meetings took place on 7-
8
April 2020, 17 April 2020 and 22 April 2020.
[7]
AMCU’s representative on the MHSC left
the meeting of 13 March 2020 early,
and
its representative on MOHAC did not attend the meeting of 17 March
2020.
AMCU did
not attend a single one of the meetings convened by the Minister.
[8]
On 5 April 2020, AMCU indicated in
correspondence that it had no intention to
participate in any process of engagement
with the DMRE and gave these reasons:
‘
Moreover,
as AMCU, we have no reason to believe that this will be a genuine
consultative engagement. Rather, we believe it will be
another
rubber-stamp and tick-box exercise by the DMRE to flout the rights of
workers for the sake of
profits
of the mining bosses.
[4]
”
[9]
On 12 April 2020, AMCU, through its
attorneys sent a letter of demand to the DMRE.
This letter was
simply intended
to form
a
basis
to litigate
against
the
DMRE. On 16 April 2020, AMCU launched an urgent application in the
Pretoria
High
Court, which application was set down for hearing on 21 April 2020.
The application was subsequently abandoned.
[10]
Four days later, on 20 April 2020, AMCU
launched the second urgent application in the Labour Court. AMCU
sought as its main and first
alternative relief an order compelling
either the Minister, or the Chief Inspector, to act under
the MHSA and declare “the Covid-19 viral
pandemic” a health hazard or an occupational health issue, and
compelling mining companies
to put in place mandatory measures to
deal with Covid-19 at their mines.
[11]
At the hearing of the matter, the Minister
and the Chief Inspector agreed that if
the
MHSA applied to Covid-19, then, steps could also be taken under
the MHSA
in
addition to those already taken, and they assisted in constructing an
order that contained time periods for such steps, and the
interim
relief which AMCU had not sought in its application.
[12]
The Labour Court held in favour of AMCU on
the issue of whether Covid-19 is an occupational disease as defined
in the MHSA, and declined
to make an order of costs in AMCU’s
favour. In reaching its decision, the court
a
quo
took into account the factors
identified in section 162(2) of the Labour Relations Act
66 of 1995 (“the LRA”), and the
ordinary principles relating to cost orders in the
Labour Court.
[13]
AMCU submits that it should not have to
bear the costs of successful litigation
that was brought to protect constitutional
rights.
Costs
awards on appeal
[14]
In
making its order of costs, the Labour Court enjoys a wide discretion.
This court will only interfere with the Labour Court’s
decision if
it finds that the court,
in
exercising its discretion, “
acted
capriciously or applied the law incorrectly
”
[5]
.
In other words, “
if
it
is shown that the discretion has not been exercised judicially or
has
been
exercised
based
on
a
wrong
appreciation
of
facts
or
wrong
principles
of law
.”
[15]
Section 162 (1) and (2) of the LRA provides
as follows:
“
(1)
The Labour Court may make an order for the payment of costs,
according
to the
requirements of the law and fairness.
(2)
When deciding
whether
or
not
to
order
the payment
of
costs, the
Labour
Court may take into account-
(a)…….
(b)
the conduct of the parties-
(i)
in proceedings with or defending the matter
before the Court; and
(ii)
during the proceedings before the Court.”
[16]
There
is no dispute that in determining the issue of costs, the Labour
Court had
regard
to the factors expressly identified in section 162(2)
(b)
of
the LRA. AMCU
nevertheless
contends that the Labour Court in making its order of costs, applied
the wrong principle of law
[6]
.
AMCU’s
submissions
[17]
AMCU
submits that although this matter was heard by the Labour Court, and
although the costs order was made in terms of section 162
of the LRA,
the
Zungu
[7]
principle
did not apply because that principle should only be applied to
“litigation
between employers and employees”, which AMCU submits its
application was not. AMCU’s argument is that its application
was in
fact a constitutional challenge against the State, to which the
principles of costs in the
Biowatch
case
[8]
should have applied. In these circumstances, according to its
argument,
the
Labour
Court
should
have
concluded
that
the
Zungu
principle
was not
applicable,
and
once
it
has
made
that
finding,
then
the
Biowatch
principle
“
should
have kicked in”.
[18]
Counsel
of AMCU submitted that the costs principle in
Zungu
is
meant to preserve the ongoing relationship between employers and
employees, and in this regard relied
on
Association of Mineworkers and Construction Union and Others v
Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) and Others
[9]
(“Ngululu”)
.
where
the Constitutional Court explained that the rule that costs orders
should
not
be granted in labour matters is based on the special relationship
that exists
between
employers and employees. Where that special relationship does not
exist, the usual rule that costs follow the result should
apply.
[19]
It
is argued that AMCU only sought costs against the State respondents
who were acting as regulators and not the employers. The “special
relationship” which is the foundation for the
Zungu
rule
therefore never existed. The Labour
Court
therefore erred in holding that
Zungu
principle
should be extended to apply to a tripartite relationship that exists
between the State, employers and organised labour in
the mining
industry. Firstly, because previous judgments of
the
Labour Court concerning the State’s role as regulator under the
MHSA did
not
apply the
Zungu
[10]
rule
as the issues were constitutional issues where a successful party is
entitled to its costs. Secondly, the DMRE acted as a regulator
to
govern the relationship between employers and employees in the mining
sector under the MHSA.
[20]
AMCU does not dispute that AMCU and the
DMRE have an ongoing relationship, a fact which the Labour Court
stated was the most important
in making its decision. AMCU
nonetheless contends that the court
a
quo
made other findings of fact that
warrant its decision on costs being set aside.
[21]
Counsel for the first and second
respondents argues that every dispute before
the Labour Court involves constitutional
rights, namely the right to fair labour practices under section 23 of
the Constitution of
the Republic of South Africa, 1996. If AMCU’s
submission was correct that once a matter involves the reliance on
constitutional
rights against the State, and that the
Biowatch
principle must be applied, then the
Biowatch
principle
would apply to every matter before this court in which the State was
involved, and the court would have no discretion under
section 162 of
the LRA whenever the State was a party to a litigation before it.
And, further, the ordinary principle recognised
in
Zungu
would be rendered completely
inapplicable.
[22]
While it is true that the matter did not
involve an “employer-employee” relationship, the relationship
between employers, organised
labour and the DMRE under the MHSA is
clearly analogous to the relationship between unions
and employers and the general principle
under section 162 of the LRA applies.
Representatives of labour, employers and
the State sit together on the MHSA,
which
body, in turn, is responsible generally for supervising health and
safety at the mines.
[23]
AMCU’s
reliance on the
Ngululu
case
as support for its proposition is, in my view, misplaced. The
Constitutional Court in that case merely confirmed that where there
is no ongoing relationship, (because in that case the employer had
been
placed in liquidation) then the principle, that costs order should
generally
not
be made, has no application. This finding affirms that, at the heart
of the principle applied in this court, is the recognition
of the
ongoing relationship between the litigants
[11]
.
The
alleged misdirection of fact.
[24]
AMCU submits that the court
a
quo
made three other “material errors
of fact” in
relation
to the conduct of the parties before and during the hearing that
amount
to a
misdirection so serious that its decision on costs ought to be set
aside on appeal, and replaced with an order that the Minister
and
Chief Inspector pay AMCU’s costs.
[25]
Firstly
,
AMCU submits that it had been obliged to bring this application
because
DMRE had
abdicated its responsibility to protect workers, and also that it had
been excluded from participating in the DMRE’s processes
aimed at
ensuring that workers were protected. The Labour Court found that
neither of these allegations was sustainable.
[26]
AMCU submits that these findings are so
flawed that they amount to a material
misdirection of facts. AMCU’s main
submission is that the Labour Court ought to have held that the DMRE
“
bore virtually all the blame
”
for the litigation, while
AMCU
itself cannot be blamed for the failure to resolve the issue without
litigation.
[27]
In my view, this submission is untenable on
the facts. The full relevant chronology of facts is common cause;
27.1
The Minister and the Chief Inspector were
both actively involved, since before the declaration of the national
state of disaster on
15 March 2020,
in
putting in place measures to ensure that employers took steps to
protect mineworkers from the spread of Covid-19 when the workers
returned to work in April 2020.
27.2
The Minister and the Chief Inspector
consulted regularly during the period with all stakeholders, and
prepared directions and guidelines
to protect workers at mines
including:
27.2.1
The Chief Director mandated MOHAC to
prepare a detailed Guidance Note in relation to the prevention of the
spread of Covid-19;
27.2.2
The Chief Director issued a Guideline
dealing with specific
issues
of concern raised by business and labour on 26 March 2020, and also
issued a communique dated 23 April
2020
to mines in relation to start-up of operations.
27.2.3
The Minister promulgated directions under
the Disaster Management Act Regulations on 29 March 2020.
27.3
The Minister conducted inspections at mines
to see whether workers were being protected and that mines were
complying with the Guiding
Principles.
27.4
AMCU first raised the DMRE’s duties under
the MHSA in its letter
to
the Minister dated 8 April 2020. The Minister thereafter convened two
meetings at which he hoped to resolve the issues raised by
AMCU
through a process of engagement, within two weeks of AMCU raising the
point. AMCU did not attend either of the meetings. Instead,
AMCU
launched the first of its urgent applications against DMRE on 16
April 2020, a week after it sent
its
letter of demand, and four days after then launched the second
urgent application on 20 April 2020.
[28]
In these circumstances, the Labour Court’s
conclusion that AMCU’s conduct “
indicates
an attitude that served to undermine the consensus-seeking process
that the DMRE has implemented and
the efforts to reach consensus within a tripartite structure
”
cannot be faulted.
[29]
Secondly
,
AMCU submits that the Labour Court ought to have held that the
Minister and the Chief Inspector has acted unreasonably in failing
“to insist on binding legal standards,” and that since the Chief
Inspector’s conduct, in not acting under section 9 of the
MHSA, was
found to be objectively unreasonable
by
the Labour Court, it must follow that the Chief Inspector’s
response to the pandemic was unreasonable.
[30]
This mischaracterised the Labour Court’s
findings that once it was accepted that the Chief Inspector had the
power to act under
section 9 of the MHSA, then
it would be unreasonable for him not to
make use of that power. The Chief Inspector never contested, and it
was never in dispute,
that if section 9 was applicable then, he
should exercise his powers under it.
[31]
Thirdly,
AMCU
submits that the Labour Court misdirected itself in concluding that
AMCU had achieved partial success because AMCU was granted
the relief
it sought in the notice of motion.
[32]
It is common cause that AMCU made no
provision in its notice of motion for any
interim relief at all. The relief was
granted as a result of the acknowledgment by
the Minister and the Chief Inspector of the
importance of interim relief, if they were wrong on the substantive
point in the dispute,
and because of their willingness to engage with
both AMCU and the Minerals Council as to the substance of that
relief. The Labour
Court was therefore entirely correct to recognise
that AMCU could not claim to have been successful in relation to the
grant of the interim relief.
Medical
experts’ costs
[33]
AMCU submits that it ought at least to have
been awarded the costs of its medical experts, and that it was
necessary for it to brief
five medical experts (including
international experts) to provide their opinion on the seriousness of
the Covid-19 pandemic, in particular,
to show that “
the
fundamental right to life
of
mineworkers was as stake
”.
[34]
Counsel for the respondents argued that no
one, and certainly not the Minister
or
the Chief Inspector has ever disputed this. The Minister and the
Chief Inspector have consistently recognised the seriousness of
the
pandemic since
the
declaration of the national state of disaster and even before, as is
manifest
from the
facts set out above. It is also argued that AMCU does not explain why
it did not present this evidence to the
DMRE before commencing litigation.
Evaluation
[35]
The
principle
in
Biowatch
is
explained
in
Democratic
Alliance
v
President
of
South
Africa and others
as
follows
[12]
:
‘
as
a general rule in the constitutional litigation an unsuccessful
litigant in proceedings against the state should not be ordered
to
pay costs. The general
rule
is concerned not with the characterisation of the parties, but the
nature of the issues. Equal protection under the law requires
that
costs awards should not depend on whether the litigant is financially
endowed or indigent, or reliant
on
external
funding.
The
critical
question
is
whether
the
litigation
has
been undertaken to assert constitutional
rights, whether the constitutional issues are
genuine and substantive, and whether there
has been impropriety in the manner in which the litigation has been
undertaken.’.
[36]
The Court
a
quo
was correct in finding that the
Biowatch
principle
finds no application here.
[37]
The Labour Court held that no order of
costs should be made against the Minister or the Chief Inspector
because the DMRE and AMCU
are in an ongoing
relationship as social partners under the
MHSA, and a costs order might undermine that relationship.
[38]
In
making its order of costs, the Labour Court enjoyed a wide
discretion, and this court will only interfere with the Labour
Court’s
decision if it finds that in exercising its discretion, the
court “acted capriciously or applied the law incorrectly”
[13]
.
[39]
Neither
the Minister nor the Chief Inspector has ever disputed the
seriousness
of
the Covid-19 pandemic or the need to take steps before AMCU launched
the
urgent
application, which steps culminated in the Minister on 29 April 2020
issuing a binding direction under the Regulations issued
in terms of
section 27(2) of the Disaster Management Act 27 of 2020
[14]
.
I agree with the court
a
quo’s
finding
that AMCU’s conduct indicates an attitude that serves to undermine
the DMRE process’.
[40]
This
court has developed and consistently applied a principle that while
litigation may inevitably arise between social partners,
the partners
should bear
their
own costs of prosecuting or defending the litigation. The established
principles take into account that the parties that appear
as
adversaries in the Labour Court are often also required to work
together collaboratively after the litigation is concluded, litigants
before this court, including the State, are
generally
only
ordered
to
pay
their
opponents’
costs
when
their
conduct
is
deserving of censure
[15]
, or
when their conduct in the litigation has been
unreasonable
or frivolous
[16]
.
[41]
The
conferral of jurisdiction in this court in respect of disputes
arising out of the
MHSA
precisely recognises the similarity between the disputes that may
arise under the MHSA, such as this one, and those under the
LRA. The
MHSA was itself a product of negotiation between unions, employers
and the DMRE. One
of
the objects of the MHSA is to “promote ….co-operation and
consultation on health and safety between the state employers,
employees
and their representatives.
[17]
[42]
The Labour Court correctly held that the
most important fact before it was that
AMCU
and the DMRE have an ongoing relationship and that an adverse costs
order might negatively affect that
relationship.
[43]
The Labour Court had proper regard to all
of the facts and circumstances of the
application, including the conduct of the
parties, and the potential effect of a costs order on the parties’
ongoing relationship
and for reasons aforesaid. In so
doing, the court
a
quo
exercised its broad discretion
properly, and was consistent with all of the established principles
relating to order of costs. Therefore,
there is no basis for this
court to interfere with its decision.
[44]
Although in their heads of argument the
respondents asked for a costs order against the appellant, at the
hearing of this matter the
respondents’ counsel submitted that
there should be no order as to costs.
[45]
For all these reasons, the appeal is
dismissed with no order as to costs.
DS
Molefe
Acting
Judge of the Labour Appeal Court
Waglay
JP and Coppin JA concur.
APPEARANCES:
FOR THE
APPELLANT:
A Dodson SC and M Bishop
Instructed
by Richard Spoor Inc
FOR THE
RESPONDENT:
M A Wesley
Instructed
by State Attorney
[1]
Section
43(2) of the MHSA provides that the MHSC must consists of five
representatives of each of employers and employees in the
mining
industry, and four representatives of departments of the State,
as
well as the Chief Inspector of Mines.
[2]
Mine
and Safety Act 29 of 1996.
[3]
Section
43(2) of the MHSA.
[4]
Founding
affidavit, Vol 2, Annexure ‘JMZO’, page 133.
[5]
Mbana
v Shepstone and Wylie
(2015)
36 ILJ 1805 (CC) at [52].
[6]
Giddey
N.O v JC Barnard and Partners
[2006] ZACC 13
;
2007
(5) SA 525
(CC) at
[19]
.
[7]
Zungu
v Premier of the Province of KwaZulu-Natal & others
(2018)
39 ILJ 523 (CC).
[8]
Biowatch
trust v Registrar, Genetic Resources and Others
2009
(6) SA 232
(CC). The Constitutional Court in
Biowatch
was
concerned with the potential chilling effect that an adverse costs
order would have on litigation conducted in the public interest.
[9]
[2020]
ZACC 8
;
2020 (7) BCLR 77
(CC) at para 33.
[10]
International
Ferro Metals (SA) (Pty) Ltd v Minister of Mineral Resources the
Honourable Shabangu
N.O
and Others [2015] ZALC JHB 9;
Glencore
Operations SA (Pty) Ltd Coal Division v Minister of Mineral
resources and Others
[2016]
ZALC JHB 31; (2016) 37 ILJ 966 (LC).
[11]
The
same is true in respect of the two other cases relied on by AMCU in
para 20 of its heads
of
argument.
[12]
2014
(14) SA 402
(WCC) at [107].
[13]
Mbana
v Shepstone & Wylie
(2015)
36 ILJ 1805 (CC) at [52].
[14]
The
direction was issued in terms of regulation 10(8) of the
Regulations.
[15]
Stokwe
v Member of the Execute Council, Department of Education, Eastern
Cape & others
(2019)
40
ILJ 773 (CC) at [91].
[16]
Member
of
the
Executive
Council
for
Finance,
KwaZulu-Natal
&
another
v
Dorkin
N.O
&
Another
(2008)
29 ILJ 1707 (LAC) at [19].
[17]
Section
1(6) (iii) of the MHSA.