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[2022] ZALAC 108
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Bargaining Council for the Civil Engineering Industry v Commission for Conciliation, Mediation and Arbitration and Others (JA 119/2021) [2022] ZALAC 108; (2022) 43 ILJ 2702 (LAC) (8 September 2022)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA 119/2021
In
the matter between:
BARGAINING
COUNCIL FOR THE CIVIL ENGINEERING
INDUSTRY

Appellant
(2
nd
Respondent a quo)
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION

First Respondent
INTASOL
TAILING (PROPRIETARY) LIMITED

Second Respondent
(Applicant
a quo)
WERNER
PAUL KRUGER N.O

Third Respondent
ASSOCIATION
OF MINEWORKERS AND CONSTRUCTION
UNION

Fourth Respondent
NATIONAL
UNION OF METALWORKERS OF SOUTH
AFRICA

Fifth Respondent
NATIONAL
UNION OF MINEWORKERS

Sixth Respondent
MINERALS
COUNCIL OF SOUTH AFRICA

Seventh Respondent
THE
DIRECTOR GENERAL OF THE DEPARTMENT OF
MINERAL
RESOURCES

Eighth Respondent
SOUTH
AFRICAN FORUM OF CIVIL ENGINEERING
CONTRACTORS

Ninth Respondent
Heard:

16 August 2022
Judgment:
8
September 2022
Coram:
Sutherland JA,
Kathree-Setiloane AJA and Tokota AJA
JUDGMENT
SUTHERLAND
JA
[1]
This case
is about ‘tailings dams’ and ‘tailings storage
facilities’ (TSF), perhaps better known to most
South Africans
as slimes dams and mine dumps. The business of the second respondent,
Intasol Tailings (Pty) Ltd (Intasol) involves
working with these
things. The appellant, the Bargaining Council for the Civil
Engineering Industry (the BC) believes that the
business of Intasol
falls within its jurisdiction. A dispute about that question was
referred to a commissioner of the Commission
for Conciliation,
Mediation and Arbitration (CCMA) in terms of section 62 of the Labour
Relations Act
[1]
(LRA) to render
a demarcation award. The commissioner concluded that Intasol was
indeed in the civil engineering industry. When
that decision was
reviewed in the Labour Court, Van Niekerk J set it aside, and having
been asked by the parties not to remit the
issue, thereupon declared
that the business of Intasol was not within the jurisdiction of the
BC. The appeal before this Court,
at the instance of the BC, is
against the order of Van Niekerk J.
[2]
The law on how demarcation disputes are to be decided is well
established.
The leading authorities below set out the approach.
[3]
Greatex
Knitwear (Pty) Ltd v Viljoen and others
[2]
:
‘
When
the tribunal is called upon to determine whether a class of employers
is engaged in a particular industry it is faced with
a problem
similar to
that
with which the Courts have often been faced, viz. to decide whether a
particular employer is one of those other employers,
not being
parties to an agreement, engaged in a particular industry, upon which
the Minister has declared an agreement to be binding
(cf. sec. 48 (2)
of the 1937 Act; sec. 48 (1)
(b)
of
the 1956 Act). The cases seem to show that the matter is approached
along the following lines:
(a)
The meaning of 'industry', as used in the
agreement, is determined. This usually requires the interpretation of
some definition
appearing in the agreement. It seems that a
restrictive interpretation is often applied, cutting down the scope
of the general
words used in the definition. Although not
specifically
invoked,
the mode
of
interpretation appears
to
be that
applied
in
Venter v R.,
1907
T.S. 915
(cf.
Rex v Scapszak
and Others,
1929
T.P.D. 980
;
Rex v Ngcobo,
1936
NPD 408
;
R v Goss
,
1957
(2) SA 107
(T) at p. 110).
(b)
The activities of the employer (personal
and by means of his employees) are
determined.
(c)
The activities and the definition (as
interpreted) are now compared.
If
none of the activities fall under the definition,
caedit
quaestio;
if some of the activities
fall under the definition, a further question arises: are they
separate from or ancillary to his other
activities? If they are
separate he is engaged in the industry
(unless
these
activities
are
merely
casual
or
insignificant
-
Rex
v
C.
T.
C.
Bazaars
(S.A.)
Ltd.,
1943
CPD 334)
; if they are ancillary
to
his other activities, he is not engaged in
the industry (unless these ancillary activities are of such magnitude
that it can fairly
be said that he is engaged in the industry within
the meaning of the definition
(A.G. Tvl
v Moores (S.A.) (Pty.) Ltd.
,
1957 (1) SA 190
(AD)).
Inherent in this approach
is the possibility that an employer may be such in more than one
industry
(Rex v Giesker and Giesker,
1947 (4) SA 561
(AD) at
p. 566), despite the difficulties that may arise from such a
situation (cf.
Rex v Auto-Parts (Pty.), Ltd. and Another,
1948
(3) SA 641
(T) at p. 648).
If
the
aforegoing
is
a
correct ref
le
ction
of
the manner in
which
the Courts
have
approached
the
problem
whether
an
employer
is
engaged
i
n
a
particular
industry,
it
is
plain
that
the
problem
is
only
resolved
by
reference
inter
alia
to
the
activities of
the
emp
loy
er
.
Whether
one uses
the
word
'activities'
or
'wo
rk'
seems
merely
a
question
of
preference
of language. As
in
the
case of an individual
it
cannot
be
determined
whether he
is
engaged
in a particular
industry
without
reference to
his
work,
so also
it
cannot
be determined
in
the
case
of
a class of persons whether
it
is
engaged
i
n
a particular
industry
without
reference to the work it does. Whether that work is to be called
merely 'work' or a
class
of
work seems, again, to
depend
on
linguistic
preference
or
the
degree
of circumscription.’
[3]
[4]
SA
Municipal Workers Union v Syntell (Pty) Ltd and others
[4]
:
‘
[21]
In the main, arbitrations under the LRA are those which address
disputes of right and are adjudicative proceedings proper.
In s
62, the word 'arbitration' is not used to describe the process.
Indeed, if a 'demarcation' issue arises in any ordinary
adjudicative
proceedings, those proceedings must be stayed until the demarcation
issue is decided in the distinct process provided
for in s 62.
[22]
The s 62 process, as is evident from its provisions,
contemplates more than a conventional adversarial contest between

immediate interested parties. It presupposes a broader
investigative role. In such a context, whether or not an onus in any

sense exists is not obvious.
[23]
These considerations which are imbedded in the provisions of
the section underscore its sui generis character. The s
62 process
was commented on by Francis J in
Coin
Security (Pty) Ltd v CCMA & others
(2005)
26 ILJ 849 (LC)
at
paras
43
and
63
-64:
“
[43]
The function of a CCMA commissioner in a demarcation dispute is a
classic case of the legislature entrusting
a functionary with the
power to determine what facts are about the making of a decision and
the power to determine whether
or not they exist. It is
fundamental to the effective operation of the Act that the
commissioner must be a repository of such power.
…
[63]
The demarcation process is one entrusted to
a specialist tribunal in terms of the provisions of the
Act.
The
demarcation decision is one involving facts, law and policy
considerations
. In demarcation decisions, there will, more often
than not, be no one absolutely correct judgment. Particularly in
decisions of
this sort, and given the provisions of the Act, there
must of necessity be a wide range of approaches and outcomes that
would be
in accordance with the behests of the Act. Due deference
should therefore be given to the role and functions and resultant
decisions
of the CCMA in achieving the objects of the Act. This
approach will not only be consistent with these principles, but
also
consistent with the need for the Act to be administered
effectively.
[64]
The case for judicial deference becomes all
the more compelling in this matter given that NEDLAC agreed
to
support the provisional award.' (Emphasis added.)
[24]
More recently, Van Niekerk J affirmed this
perspective in
National
Bargaining Council for the Road Freight Industry v Marcus NO &
others
(2011)
32 ILJ 678 (LC)
at
para
22
:
“
It
should also be recalled that
Coin
Security
is also authority for the
point that a demarcation involves considerations of fact, law
and social policy and that in
these circumstances, due deference
ought to be given to a commissioner making a demarcation award (at
para 63 of the judgment).
As I understand the judgment, in
demarcation judgments there will be, more often than not, no single
correct judgment, and that
a wide range of approaches and outcomes is
inevitable. A reviewing court should be attuned to this reality, and
recognize it by
interfering only in those cases where the boundary of
reasonableness is crossed. Further,
Coin
Security
recognizes that a
demarcation is provisional — s 62(9) of the LRA requires a
commissioner to consult with NEDLAC before
making an award. As the
court in
Coin Security
observed,
the case for judicial deference is all the more compelling in these
circumstances. In short, far from encouraging
an expansive approach
to a demarcation, the
Coin
Security
judgment requires this
court to recognize the specific expertise of commissioners who
undertake this task and to defer to
that expertise.”
[5]
National
Union of Metalworkers of SA v Commission for Conciliation, Mediation
and Arbitration and others
[5]
:
[12]   The
notion that, for the practical purposes of regulating employment
conditions in economic activities, by assigning
some enterprises to
one or other bargaining council, proceeds from the foundational idea
that 'grouping' like with more or less
alike is a sensible pragmatic
approach. Central thereto is the attempt, by the use of words, to
describe the supposedly distinguishable
economic activities in
definitions which are almost always complex, wordy and often
hair-splitting. The task aims at describing
the characteristics or
attributes of industrial activities. Then the characteristics or
attributes of a business enterprise are
described and the two are
compared. Just as it is not objectively possible to determine when
night ends and day begins, and a practical
answer depends on what you
want to pinpoint that moment for, so it is with demarcation of
so-called distinct 'industries'.
[13]   Another
dimension of the exercise that warrants acknowledgement is that the
exercise is as much one of creation
is of adjudication. The meaning
of words of the defined scope of a bargaining council can indeed be
adjudicated, but that is not
always enough. The management of the
reality that economic activities within the invented sectors,
sometimes differently described,
often overlap and, cannot therefore,
in logic, be truly separated, means that a pragmatic policy decision
to locate a given enterprise
on one or other side of an imaginary
fence is an inescapable aspect of the task of demarcation. It
resembles, in some respects,
an interest arbitration. What is sought
is what may usefully be called the ‘best fit' – an idea
that defies precision
and is axiomatically fact specific.’
[6]
The award
of the commissioner was held by Van Niekerk J to be vitiated by
irregularities. In our view, this was a correct finding.
In the
appeal, counsel for the BC was rightly constrained to defend the
award, arguing that the critical question ought not to
be the
fumbling of the commissioner, but whether he produced a reasonable
answer to the question.
[6]
Reasonableness in a demarcation enquiry is of a particular kind
because of the ‘creative potential’ in such disputes

involving the policy choices and balancing aspects of the evaluation.
The thoroughness of the enquiry including a proper analysis
of the
relevant material, can colour the choices made. Where the exercise is
ineptly carried out, the outcome is tarnished too.
[7]
The irregularities evidenced in the award were held to be:
(1)
A failure to interpret the definition of civil engineering industry
properly.
(2)
A failure to ask the proper questions necessary to analyse the facts
which illustrate the
character of the civil engineering industry and
compare that to the business of Intasol.
(3)
A failure to engage with the body of evidence.
[8]
In our view, these criticisms were correct and were amply
substantiated.
[9]
The thesis of the grounds of appeal, as advanced, criticise the
judgment
for straying from the proper review test, for according to
the commissioner the appropriate degree of deference in the policy
choice
made by the commissioner, in whom the primary responsibility
to demarcate was vested, and for improperly re-trying the question.

These criticisms of the judgment are misplaced. The last mentioned
criticism can be dismissed out of hand because the Labour Court
was
asked by the parties, should the review be upheld, not to remit the
matter for a re-hearing; in such circumstances, the traverse
of the
body of evidence and the articulation of an analysis (two features
distinctly absent from the award) undertaken by Van Niekerk
J in the
judgment, is precisely what the parties asked the judge to do.
[10]
The interpretation of the definition of civil engineering industry is
the place to begin
the analysis. The relevant portion reads:
‘
2.1
The Civil Engineering Industry means the industry in which employers
(other than local authorities) and employees
that are associated for
the purposes of carrying out
work of a
civil engineering character normally associated with the civil
engineering industry and includes such work in connection
with any
one or more of the following activities:
…
(b)
Excavation and bulk earthworks; bush clearing and de-stumping;
topsoil stripping;
drilling and blasting; preparation of pension
areas, drilling pre-split holes and blast holes blasting and/or cast
blasting; secondary
blasting; loading; hauling and dumping of
mineralised and/or waste material to waste dumps or processing plant
feed (ROM Pad) stockpiles;
production dosing of topsoil, inter-burden
or waste material; pumping and dewatering of storm and/or
contaminated water, construction
and maintenance of; access and hall
roads, ramps; waste and processing plant feed (ROM Pad) areas; safety
beams; high wall; benches;
storm water systems; catch drains, bund
walls, surge dams,
trimming, scaling or chain dragging of batters,
heap – leach pads, tailing dams,
dust suppression of
loading areas, haul roads and dumping areas; rehabilitation of work
areas or waste dumps; topsoil spreading,
hydro- seeding and watering;
…
(f)
… but excluding;
…
(iv)
The Mining Industry which is defined as an industry where employers
and
employees are associated for the purpose directly or indirectly,
for the winning, extracting, processing and refining of the material

in, on or under the water or from any residue stockpile all residue
deposit.”
(Underling added)
[11]
This text is poorly drafted. Several aspects are severely
problematic. The incoherent punctuation
in (b) is what immediately
mesmerises the reader. Moreover, in a list of ‘activities’,
the logical pattern would be
a series of verbs. What appears instead
is a patchwork of activities and references to things. Plainly, the
text has not been properly
edited, a fate which, not infrequently, is
evidence of a committee being the drafting agent, worn down by the
effort to accommodate
disparate sensitivities of those at the table.
Accordingly, it is necessary to adopt a charitable approach to what
the drafter
tried to express.
[12]
However,
the principal headache is with the core circular articulation of
what
is civil engineering for the purposes of the BC
:
‘work of a civil engineering character normally associated with
the civil engineering industry’. The core of this
mantra is one
that was established in the ministerial sectoral determinations prior
to the invention of the BC. It then read simply:
‘work of a
civil engineering character’. No evidence was adduced of the
background facts which might illuminate why
such an anodyne
formulation was selected. Ultimately the definition falls to be
interpreted in accordance with the usual tests
as set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[7]
.
[13]
Some evidence of the evolution of the definition, as it at present
reads, was adduced from
Dr Geldenhuys, an industrial psychologist and
sometime administrative official of the SA Forum of Civil Engineering
Contractors
and the interim general secretary of the BC, at the time
of its inception. What she provided in evidence was of little real
value,
mainly because instead of confining herself to contributing a
factual account backed up with substantiation, she endeavoured in

essence, to be an opinion witness on an interpretation of the
definition, an issue upon which she was not competent to express
a
view.
[14]
The material evidence she tendered was to explain the genesis of
amendments inserted by
NEDLAC to cater for the dynamics of open cast
mining in which specialist civil engineering contractors were
involved and who did
not want to fall into the trap of their business
being construed to be in the mining industry on a mining site, but
the civil engineering
industry when on a different kind of site. Two
important additions were introduced. One was the mining industry
exclusion in sub-clause
(iv), but by far the most important one was
the phrase: ‘normally associated with the civil engineering
industry’ to
the ancient mantra, producing the circular
statement.
[15]
In regard to the present controversy, Dr Geldenhuys purported to
declare that the inclusion
of the phrase ‘tailings dams’
meant that anything to do with such activity was
ipso facto
civil engineering in nature, a plainly misconceived statement and in
any event unsubstantiated by any evidence to that effect other
than
her say-so.
[16]
What did the commissioner do with the definition to try to reveal
what it was that characterised
the civil engineering industry? He
offered a recitation of the standard approach to demarcations, cited
the definition, cited case
law on interpretation of statutes, and
then in paras [31] – [33] of the award, stated this:
‘
[31]
[Intasol] argued that the scope must be read in the context of the
activities of trimming, scaling or chain dragging.
The [BC] argued
that the word ‘tailings dam’ can be seen as a stand-alone
activity. The interpretation of the [BC]
is more probable. In the
first place Dr [Geldenhuys] testified at these proceedings and she
gave an indication of what the intention
of the drafters were. She
testified about what was presented at NEDLAC and about the outcome.
She understood the scope to mean
that if a company was engaged in
tailings it fell under the scope of the [BC].
…
[33]   Mr Cooper
testified that the placing of tailings is an on-going construction
process. The tailings dam is constructed
and maintained through the
deposition of tailings. As the operator placed the tailings the
structure would grow, it became bigger
and that is work of a civil
engineering nature…’
[17]
Whatever this passage encapsulates, it does not engage with the text
of the defintion.
The slavish capitulation to the evidence of Dr
Geldenhuys is plainly wrong in principle but also is an incorrect
grasp of the import
of her evidence, and, no less, of its dubious
value, which could never be dispositive of the meaning of the
definition. Attributing
meaning to the definition and resolving the
rival interpretations of the text was the commissioner’s job.
He did not do it.
This failure demonstrated a lack of appreciation
for the genuine difficulties which afflict the definition.
[18]
By
contrast, Van Niekerk J dealt with this issue thus
[8]
:
‘
[32]
What
the
arbitrator's
award does, as I
have
indicated
,
is
simply
to prefer
,
without giving
reasons,
the
evidence of
Coope
r
(thus
rejecting the evidence by Gotz and Brink) and conclude that the
applicant is engaged
in
what he found
to be an 'ongoing construction process
'
and secondly,
that the applicant
is
not engaged in
'actual
mining'
.
Based
on
these
conclusions,
the
arbitrator
regarded the
applicant
'
s
business as one that falls within the registered scope of the
bargaining council.
[33]
The award
discloses
no
meaningful
attempt
to
define the
applicant's activities
.
While it
is
correct that the definition of
'
civil
engineering
industry'
contains an
exclusion of
the
mining
industry
as
defined,
the
first
enquiry
that the
arbitrator
was obliged to conduct was whether
the
applicant's
activities are such
that
the
applicant
and
its
employees
can be
said to
be
'
associated
for
the
purposes
of
carrying out work
of
a civil engineering character normally associated with the civil
engineering sector.
'
The definition is poorly drafted, but what follows the preamble are
six subparagraphs, being descriptions of
'such
work
'
(ie work of a
civil engineering character
normally
associated
with the civil engineering sector). In other words
,
what
subparagraphs (a) to (f) describe
is
work that
is
'normally
associated'
with
the civil engineering sector in connection with the activity
described
.
In
other
words, the threshold
is
not
engagement
in the
activity
described in subparagraphs
(a)
to
(f)
-
for
work
to
fall
into the civil engineering
industry,
it
must
be work of a civil engineering character normally
associated
with
the
sector
.
This
formulation
leaves
it
open to
an
employer (such as the applicant) to contend (as
the
app
li
cant
does)
that
it is
associated
with
its
employees
for
a
purpose
other
than carrying out activities or work normally associated
with
the civil
engineering
sector
.
The
arbitrator failed to appreciate this nuance and in doing
so,
asked the wrong
question
.
He assumed that
the
reference
to
'tailings
dams'
in paragraph
(b)
and the
applicant's engagement with tailings dams
to
be
definitive
of
the
applicant's
engagement
in
the civil
engineering
industry.
Put
another
way,
his
assumption
was
that
any work connected
with
tailings
dams is
work of
a civil
engineering
character,
normally
associated
with
the
sector.
This
led
the
arbitrator
to
ignore
the
real issue
that he was
required to determine
,
ie the
purpose
for which
the
applicant
and
its
employees
are
associated.
The
arbitrator's
failure
to
deal
with
this
issue
constitutes
a
reviewable
irregularity.’
(underlined emphasis
added)
[19]
In our view, the construction placed on the definition by Van Niekerk
J is manifestly correct
and the criticism of the commissioner’s
treatment is entirely appropriate. Upon that premise, the conclusions
reached by
the commissioner are based on a wrong understanding of the
issues. Plainly, the award could not stand.
[20]
What
exactly
does Intasol do in its business? The evidence of
Mr Gotz, its CEO was unrebutted; the only dimension of challenge was
in the
characterisation
of what he testified Intasol undertook
to conduct its business. The extensive account in the Judgment of Van
Niekerk J does not
require repetition in this judgment. What we
address here are the critical points of controversy which distinguish
Intasol’s
business from ‘work of a civil engineering
character normally associated with the civil engineering industry’.
[21]
Intasol describes itself as an operator. It performs two functions
and consults about these
functions too. The first function is to
‘operate’ tailings dams. The second is what it calls
‘hydro-mining’
and is the major dimension of the
business. Intasol’s role is one phase in the chain of
activities which involves the mining
of gold-bearing ore, extraction
of the gold and dealing with the residue.
[22]
‘Operating’ a tailings dam is the first stage of a
perpetual dynamic process
in which ultimately, a tailings dam becomes
a TSF. What Intasol does in this regard (after the ore has been
extracted from underground,
been pulverised in the reduction works
and then chemically processed to leach out the gold) is to receive
the residual crushed
ore in a slurry form, which is pumped into the
earthen tailings dam which has already been built by a civil
engineering business.
The primary objective of Intasol during this
phase is to extract the water used to mix the slurry and to deposit
the damp ore residue
to dry out on the perimeter of the dam. As the
residue is dumped a mine dump or TSF rises over several years.
Eventually, no tailings
are dumped there and the TSF is now a mature
mine dump.
[23]
The second
function of Intasol is to destroy the TSF or mine dump by a process
using high-pressure water cannons which, in a complex
process, the
ore is mixed once again into a slurry which is pumped to the
metallurgical works to again extract gold. This phase
is not a simple
grunt operation of hosing down the material and moving it.
[9]
Rather, it is a sophisticated mining operation identifying grades of
gold bearing-ore in the TSF and strategically removing unwanted

segments, and adding lime before pumping the mix to the metallurgical
plant. This operation requires a mining plan to be approved.
The
Department of Minerals Resources oversees these happenings. This
process cannot cogently be described as a ‘haulage and
dump’
process, typically carried out by a civil engineering business.
[24]
The use of the word ‘operate’ is important to distinguish
its role from the
initial construction of the tailings dam, a task,
as alluded to, carried out by another business, which it is common
cause is indeed
a civil engineering enterprise. The fact that Intasol
comes onto the site of a tailings dam only once the thing has been
constructed
is significant. This distinction was not properly
appreciated by the commissioner. Further, he failed to appreciate the
scale and
distinctiveness of the hydro-mining dimension of Intasol’s
business, still less to appreciate that the business of Intasol
had
to be assessed as a whole. Instead, he slavishly accepted the glib
characterisation by Dr Geldenhuys and by Mr Cooper, an engineer,
of
the tailings dam operations as an ongoing ‘construction’
of a geo-technical structure,
ergo
, of a civil engineering
nature. Similarly, he thought that the hydro-mining work was mere
haulage and removal of material. On this
vacuous premise, toddlers
building sand castles on the beach could be accused of engaging in
the civil engineering industry.
[25]
What the commissioner lost sight of altogether, was to ask how the
business of Intasol
could be thought of as an example of a business
that is ‘of a civil engineering character
normally
associated
with the civil engineering industry’. He ignored
the need to do so in the face of the evidence of Mr Brink, an
engineer, that
the business described was
sui generis
and is a
facet of mining rather than of civil engineering, which evidence he
ignored and offered no explanation to justify doing
so. Mr Cooper’s
evidence was an opinion which did not rebut the factual evidence of
Mr Brink that these activities were not
undertaken by civil
engineering businesses. There was no rational premise upon which to
prefer Mr Cooper’s
opinion
over Mr Brink’s
evidence of practice
in the civil engineering industry.
[26]
The
contemporary collective bargaining practises of Intasol should have
been an important facet to weigh. The business was unionised,
and
plant-level bargaining was carried on. Such collective bargaining
practices are typical in the mining industry, but not in
the civil
engineering industry. Moreover, the trade rivals of Intasol are the
Mining companies themselves, who either undertake
the work that
Intasol does or outsources it to businesses like Intasol. Instead, a
tangential thesis about the remuneration method
was thought to
indicate that Intasol belonged in the civil engineering Industry
because it was paid a fee for a service and did
not assume risk in
respect of the yield of gold from the ore. This factor is not
indicative of the conclusion sought to be drawn.
[10]
Conclusion
[27]
Van Niekerk J held thus:
‘
[43]
In summary: the main activities or business of the applicant is the
operation of a tailings dam facility, hydro-mining
and the provision
of consultancy services in respect of both. Those activities are not
work of a civil engineering character normally
associated with the
civil engineering sector. Although subparagraph (b) of the definition
contained in the main agreement makes
reference to 'tailings dams',
the activities in respect of tailings dams that fall within the civil
engineering
sector
are limited to those normally associated with that sector, i.e. the
design and construction of tailings storage facilities.’
[28]
We agree. The order of Van Niekerk appropriately recognises that to
place Intasol in the
civil engineering sector would not be to locate
‘like with more or less like’ and that it could not be
construed to
be the ‘best fit’.
Costs
[29]
Among the
issues addressed in the heads of argument of the appellant, but not
ventilated in the hearing, was the contention that
Van Niekerk J was
in error to have awarded costs. In this, heavy reliance was placed on
the decision in
Zungu
v Premier of the Province of KwaZulu-Natal and others
[11]
(
Zungu
)
.
The law
as declared in that decision is, in short, that in a Labour Law case,
more than mere victory warrants a costs order. This
derives, at
source, from section 162(1) of the LRA which provides that: “
[t]he
Labour Court may make an order for the payment of costs, according to
the requirements of law and fairness
”.
[30]
This does
not mean that the victor cannot ever get a costs order. What it does
mean is that if it is fair that the victor gets a
costs order then it
is appropriate to make such an order. In
Zungu,
the earlier decision of Zondo JP (as he was then) in
Member
of the Executive Council for Finance, KwaZulu-Natal & another v
Dorkin NO and another
[12]
(
Dorkin
)
is cited, which expressed the policy position that to avoid
inappropriate discouragement of litigation in which it is proper to

engage, where a costs order might have a chilling effect, such an
order ought not to be granted. There is no circumscribed set
of
circumstances which dictate the outcomes; each case must be dealt
with on its own facts. The submission on behalf of the appellant
that
there is a rule that a costs order shall not be granted is incorrect.
[31]
Van Niekerk J was terse in the costs order, referring merely to the
absence of the usual
factors which would suggest a different costs
order was appropriate. What is offered on appeal to suggest that
those factors are
indeed present? The rationale advanced is that the
BC was
bona fide
and reasonable in opposing the review.
However, by contrast, it is argued on behalf of Intasol that the BC
in the review proceedings
compelled Intasol to seek an order staying
the award pending the outcome of the review and that the entire case
was characterised
by an adversarial tone. This is conduct which,
among lawyers, is frequently labelled as hardball. It has
consequences.
[32]
More significantly, however, in our view, a relevant factor to weigh
is whether there were
plausible prospects of success in the review.
The poverty of the award was recognised in the debate with counsel in
this Court.
The BC’s advisers could not have been any the less
alive to the vulnerability when the review papers were filed. True
enough,
a litigant may not be condemned for seeking to defend what it
has won; but then, only when it can offer plausible resistance. A

mature reading of this award could not have instilled confidence in
the BC. Although it is not illegitimate to have sought to defend
it
anyway, it is unconvincing to call foul when the price of a valiant
rear-guard defence is an adverse costs order.
[33]
No proper grounds exist to interfere with the costs order
a quo
.
Similarly, in this Court, the challenge to the judgment
a quo
was without merit. An important factor is the effect of the scale of
the costs on the successful party who has had to bear substantial

costs to establish nothing more than to be left alone. In this case,
there were the costs of an 11-day hearing before the commissioner,

and two court hearings; an expensive exercise to achieve nothing more
than to stand still.
[34]
In line with the policy norms articulated by Zondo JP in
Dorkin
,
a balance must be struck between institutional litigants with
substantial resources for whom litigation is an occupational hazard

and businesses or individuals for whom litigation is a major
distraction and an erosion of the bottom line. This case is an
example
of a BC seeking to expand its empire in order to broaden its
tax base. It has from inception been a commercially oriented venture.

In our view, cost orders are appropriate.
[35]
In the result, the following order is made:
Order
1.
The appeal is dismissed with costs.
Sutherland
JA
Kathree-Setiloane
AJA and Tokota AJA concur.
APPEARANCES:
FOR
THE APPELLANT:
A Redding SC,
with him, P Maharaj-Pillay
Instructed
by H Pienaar of Cliffe Dekker Hofmeyr
FOR
THE RESPONDENT:
A Snider SC
Instructed
by F Leppan of Cliffe Dekker Hofmeyr
[1]
Act
61 of 1995, as amended.
[2]
1960
(3) SA 338
(T) at 344G -345F.
[3]
A curious aspect of this venerable authority is that it appears from
the dissenting judgment in the case. It has been approved
over and
over and applied uniformly.
[4]
(2014)
35 ILJ 3059 (LAC) at paras [21] - [24].
[5]
(2020)
41 ILJ 1629 (LAC) at paras [12] - [13].
[6]
See:
SBV
Services (Pty) Ltd v National Bargaining Council for the Road
Freight and Logistics Industry and others
(2016)
37 ILJ 708 (LC) at paras [29] – [31] per Steenkamp J:
‘
[29]
In
National
Bargaining Council for the Road Freight Industry v Marcus NO &
others
it
was held that due deference ought to be paid to a commissioner
making a demarcation award. In demarcation disputes there
will be,
more often than not, no single correct judgment and a wide range of
approaches and outcomes is inevitable. A reviewing
court should
therefore interfere only in cases where the boundary of
reasonableness is crossed. This approach was followed

in
Dewdev
,
National
Textile Bargaining Council v De Kock
and
Henred
Fruehauf.
That
approach was confirmed by the LAC in
National
Bargaining Council for the Road Freight Industry v Marcus NO &
others.
[30]
The LAC in that case also noted that, under the LRA, demarcations
need to be seen in the context of the system of bargaining
councils
aimed at achieving the primary objects of the Act, including the
promotion of orderly collective bargaining and collective

bargaining at a sectoral level: 'These statutory imperatives
require the demarcating tribunal to enquire, beyond mechanistic

comparison of jobs, into the relevant collective bargaining
practices and structures.'
[31]
It will be clear from these findings of the LAC that the
reasonableness test for review will be particularly difficult
to
meet in the case of a demarcation award. In this case, as will
appear from discussion below, the applicant has not been
able to
show that the conclusion of the commissioner was so unreasonable
that no reasonable decision maker could have come to
the same
conclusion.’
[7]
2012
(4) SA 593
(SCA) at para [18].
[8]
Intasol
Tailings (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration and others
(2021) 42 ILJ 2204 (LC) at paras [32] – [33].
[9]
An argument was advanced that the decision in
National
Union of Metalworkers of SA v Commission for Conciliation, Mediation
and Arbitration and Others
(2021)
42 ILJ 2276 (LC) was on all fours with this case. In that matter Van
Niekerk J held that the company was in the civil engineering

industry based on the fact that it hauled and dumped waste material.
However, that fact was common cause, whereas here that
characterisation is inapposite.
[10]
A similar argument in a dispute over whether a sub-contractor to a
mine could not be in the mining industry because it earned
a fee
rather than derived a profit from the gold yield failed in a tax
case:
Benhaus
Mining (Pty) Ltd v Commissioner, South African Revenue Service
2020
(3) SA 325 (SCA).
[11]
(2018)
39 ILJ 523 (CC).
[12]
(2008)
29 ILJ 1707 (LAC).