National Union of Mineworkers v Council for Mineral Technology (JA94/97) [1998] ZALAC 22 (17 August 1998)

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[1998] ZALAC 22
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National Union of Mineworkers v Council for Mineral Technology (JA94/97) [1998] ZALAC 22; [1999] 3 BLLR 209 (LAC) (17 August 1998)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
JOHANNESBURG
In
the matter between
Case No: JA
94/97
NATIONAL
UNION OF MINEWORKERS Appellant
and
COUNCIL
FOR MINERAL TECHNOLOGY Respondent
JUDGMENT
[1] The
first appellant is the National Union of Mineworkers (“NUM”).
The second to thirteenth appellants (“the appellants”)
are
members of NUM who were dismissed on 21 July 1995 by the respondent,
their employer, the Council for Mineral Technology (“Mintek”).
[2] During February
1995 a complaint was lodged with Mintek by the local leadership of
NUM that Mr J Engelbrecht, Mintek’s head
of security, had
unlawfully removed scrap lancing from the premises of Mintek.
Mintek, on investigating the complaint, found that
Engelbrecht had
written authorisation to remove the scrap. NUM was not satisfied
with the explanation. After further discussions
over a period of
months, Mintek decided that on 12 June a grievance enquiry would be
convened to address the issue. NUM refused
to co-operate. Instead
it demanded that Engelbrecht should appear before a disciplinary
enquiry. Mintek rejected the demand. At
a meeting of NUM members on
12 June it was resolved to occupy management’s offices until Mintek
had agreed to the demand that disciplinary
proceedings be instituted
against Engelbrecht.
[3] On 13 June, 123 NUM
members, employees of Mintek, occupied the thirteenth floor of
management’s offices. The demand was conveyed
to management.
While management was considering the demand, the employees moved to
the eleventh floor. On the eleventh floor, management’s
response -
a refusal to accede to the demand - was conveyed to the employees.
The employees decided to continue their sit-in and
to occupy the
office of Mr D W J Van Vuuren, the manager, Human Resources. At
about 10H15 about 40 of the employees took occupation
of the office
of Mr Van Vuuren. Four members of management were held hostage: Van
Vuuren, Mr S J Ramokgopa, the vice-president of
Mintek, Mr J A Du
Plessis, the industrial relations manager , and Mr J Nieuwenhuys, a
recruitment officer who managed to escape during
the course of the
day. The remaining three hostages were confined to Van Vuuren’s
office until late that afternoon, when the sit-in
ended.
[4] All those who
participated in the sit-in, including those who held members of
management hostage, faced individual disciplinary
enquiries. Save
for the twelve appellants, who were dismissed, the employees were
given final warnings. Internal appeals were unsuccessful.
[5] In October 1995 NUM
and the appellants launched an application in terms of s 43 of the
Labour Relations Act, 28 of 1956 (“the
Act”) in the industrial
court for interim relief. Detailed affidavits were filed by both
sides. On 31 January 1996 the industrial
court refused interim
relief. The court described the sit-in as ‘serious misconduct’.
The hostage taking was regarded by the
industrial court as ‘totally
unacceptable behaviour’ and ‘totally destructive of the
employer/employee relationship’. The
contention that the dismissal
of the appellants was unfair because it was selective was rejected:
‘Any selectivity which was applied
in this matter was in my view
based upon the availability of evidence in regard to participation in
the hostage affair or active
involvement in the promotion of the
activities.’
[6] In terms of s
46(9)(b)(ii) of the Act NUM and the appellants were obliged to refer
the dismissal dispute to the industrial court
for final determination
no later than 9 February 1996. The dispute was in fact referred to
the industrial court on 26 March, forty
six days late.
[7] In July 1996 NUM
and the appellants delivered their statement of case. In its
statement of defence Mintek pleaded over and averred
that the
industrial court had no jurisdiction to determine the dispute as the
dispute had not been referred timeously.
[8] On ‘good cause
shown’ the industrial court had the power to condone the late
referral in terms of s 46(9)(b)(ii).
[9] On 8 September 1997
NUM and the appellants applied for condonation for the late referral
of the dispute. The industrial court
refused the application. It is
against that refusal that NUM and the appellant appeal to this Court.
[10] It
is accepted by the industrial court and the Labour Appeal Court that
in considering whether good cause has been shown in an
application of
this kind, the approach in
Melane v
Santam Insurance Co Ltd
1962 (4) SA
531
(A) at 532C-F should be adopted.
Radebe
a.o. v Protea Furnishers SA (Pty) Ltd
(1994) 15 ILJ 323 (LAC) at 325G-326G;
MM
Steel Construction CC v Steel Engineering and Allied Workers Union of
S A a.o.
(1994) 15 ILJ 1310 (LAC) at
1311I-1321A;
Oldfield v Roth N.O.
(1995) 16 ILJ 76 (LAC) at 791J;
Fundaro
v McLachlan and Lazar (Pty) Ltd t/a M & L Inspection Services
(1996) 17 ILJ 1183 (LAC) at 1187I-J an 1192J;
PPWAWU
a. o. v A F Dreyer & Co (Pty) Ltd
LAC case number JA35/97 at page 7. The approach is that the Court
has a discretion, to be exercised judicially upon a consideration
of
all the facts, and in essence it is a matter of fairness to both
sides. Among the facts usually relevant are the degree of lateness,
the explanation therefore, the prospects of success and the
importance of the case. These facts are interrelated: they are not
individually
decisive. What is needed is an objective conspectus of
all the facts. A slight delay and a good explanation may help to
compensate
for prospects of success which are not strong. The
importance of the issue and strong prospects of success may tend to
compensate
for a long delay. There is a further principle which is
applied and that is that without a reasonable and acceptable
explanation
for the delay, the prospects of success are immaterial,
and without prospects of success, no matter how good the explanation
for
the delay, an application for condonation should be refused: c.f.
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 765A-C;
NUM a.
o. v Western Holdings Gold Mine
(1994) 15 ILJ 610 (LAC) at 613E. The courts have traditionally
demonstrated their reluctance to penalise a litigant on account of
the conduct of his representative but have emphasised that there is a
limit beyond which a litigant cannot escape the results of
his
representatives lack of diligence or the insufficiency of the
explanation tendered.
Saloojee a o v
Minister of Community Development
1965 (2) SA 135
(A) at 140H-141D;
Buthelezi
a o v Eclipse Foundries Ltd
(1997)
18 ILJ 633 (A) at 638I-639A. Mr Pretorius, who appeared for the
appellants, submitted that the
Melane
approach required adaptation in the light of the value that the Act
accords to the proper ventilation of disputes. However, the
Act also
accords emphasis to the speedy resolution of such disputes.
Accordingly, there is no justification for deviating from the
Melane
principles.
[11] The delay of forty
six days was not trivial, nor was it excessive.
[12] The industrial
court found that there was no explanation for the delay. The
industrial court overstated the position. There
was an explanation.
The question is whether it was a reasonable and acceptable
explanation. The explanation had as its origin a
discussion which
took place shortly after the dismissals, presumably in about
September/October 1995, between Mr V Mjila, an NUM
organiser, and Mr
C Orr, NUM’s attorney. In Majila’s affidavit in the application
for condonation he stated:
‘5. Shortly after the dismissal of the
individual applicants I attended a consultation with the individual
applicants and the applicant’s
attorney Chris Orr. Mr Orr
recommended that we apply for an order in terms of s 43(4) of the
Act. Mr Orr explained that if the
s 43 application were
unsuccessful, we would launch an application for a determination in
terms of s 46(9) of the Act.’
Mjila
went on to state that
based on that
conversation
he thought that Mr Orr
would refer the dispute to the industrial court and Mr Orr thought
that Mjila, ‘an experienced trade unionist’,
would refer the
dispute. (It was only on 26 March 1996, when one of the applicants
enquired from Mjila what progress had been made
in the matter, that
Mjila ascertained from Mr Orr that he had not referred the dispute to
the industrial court. The referral document
was immediately
despatched to the industrial court.) Mr Orr filed an affidavit
confirming the contents of Mjila’s affidavit.
[13] The version of the
conversation between Mjila and Mr Orr is unsatisfactory. It is said
that ‘Mr Orr explained that if the
s 43 application were
unsuccessful, we would launch an application for a determination in
terms of s 46(9) of the Act.’ Mjila,
an experienced trade
unionist, and Mr Orr, an attorney and member of a leading firm of
labour lawyers, must have known that in terms
of s 46(9) of the Act
the dispute had to be referred to the industrial court for final
determination within the prescribed period,
even if relief had been
granted in terms of s 43. A s 43 order is an interim order. It is
straining credulity to suggest that Mjila
and Mr Orr believed that
only once the s 43 application had been determined would there be a
requirement to refer the dispute to
the industrial court in terms of
s 46(9). The correct position is actually set out in the affidavit
of Mjila in paragraphs 3 and
4:
‘3. The respondent (“Mintek”) dismissed
the second to further applicants (“the individual applicants”) on
or about 13 September
1995. On 12 October 1995, the union applied to
the department of labour to establish a conciliation board in respect
of this dispute.
A conciliation established on 13 October 1995 was
unable to resolve the dispute, and the period referred to in section
36(1) of
the Act expired on 11 November 1995....
4. The 90 day period
referred to in section 46(9)(b)(ii) of the Act expired on 9 February
1996. This dispute was referred to the
industrial court for
determination in terms of Section 46(9) of the Act on 26 March
1996.... The dispute was therefore referred to
the industrial court a
total of 46 days late.’
[14] The second
difficulty that I have is that on the very terse exposition of the
conversation between Majila and Mr Orr there is
no reasonable basis
for the misunderstanding. It is stated that ‘we’ would launch
the application in terms of s 46(9). Who
the ‘we’ was is not
stated. Was it Majila and Orr, or Majila, the appellants, and Orr?
And in any event it must have been Orr,
as the attorney for the
appellants, who bore primary responsibility for referring the
dispute.
[15] Thirdly, why was
it left uncertain who would refer the disputes? Without a timeous
referral, the industrial court had no jurisdiction
to determine the
dispute. That much must have been known to Mjila and Orr.
[16] Even on the
version that if the s 43 application were unsuccessful the dispute
would be referred to the industrial court, there
is no explanation
for the failure to make enquiries after NUM and the appellants lost
in the s 43 application. If Orr believed that
Mjila would refer the
dispute to the industrial court, why did he at no stage make
enquiries about the referral? And if Mjila believed
that Orr was to
refer the dispute, why did he not make any enquiries until prompted
to do so by one of the appellants?
[17] The lack of
urgency with which this matter was approached by NUM and Orr is shown
by the facts that it took three months after
the referral of the
dispute to the industrial court for the statement of case to be
delivered and the application for condonation
was signed only on 25
August 1997, more than a year after the statement of case had been
delivered. The application for condonation,
in regard to the
explanation for delay, rested on the vague and improbable version of
a conversation - a conversation which had taken
place almost two
years earlier. But what counts heavily with the Court is that the
appellants appear to have been blameless. It
is their
representatives who acted negligently.
The explanation for delay is sufficiently
cogent to warrant a consideration by this Court of the prospects of
success.
[19] Mintek had a valid
reason to dismiss all those employees who held members of management
hostage. The three members of management
were deprived of their
freedom of movement; they were allowed to use the toilet only under
escort; food had to be sent to them during
the course of the day;
communication between them and their colleagues was cut; and the day
was spent in a hostile and tense atmosphere.
It is common cause, for
example, that one of the appellants, Mr C Mbandazayo, said to Van
Vuuren that he was ‘a dead man’.
All that is in dispute is
whether that was said ‘in a joking manner’. I can understand
why Van Vuuren did not regard that threat
as a joke. Even after the
arrival of Mjila at Mintek’s premises, the hostage situation
continued. I agree with the industrial
court in the s 43 proceedings
that the misconduct was ‘totally destructive of the
employer/employee relationship’.
[20] Mintek,
however, chose not to dismiss all forty employees. It dismissed only
twelve of the forty. It is that selective dismissal
that forms the
basis of the appellant’s case on the merits. The legal position
was stated by this Court in
Early
Bird Farms (Pty) Ltd v M Mack
case
number JA 8/97 to be as follows:
‘
Like
cases should be treated alike:
NUMSA
v Henred Fruehauf Trailers
[1994] ZASCA 153
;
1995 (4) SA 456
(A) at 463G-J. The
respondent and Maziya were guilty of the same offence, the theft of
chicken pieces.
Prima facie
, they should have received the
same penalty. I say
prima facie
, because an employer may be
justified in differentiating between employees, guilty of the same
offence on the basis of differences
in the personal circumstances of
the employees (such as length of service and disciplinary record) or
the merits (such as the roles
played in the commission of the
misconduct):
National Union of Mineworkers and others v Amcoal
Collieries & Industrial Operations Ltd
(1992) 13 ILJ 1449
(LAC) at 1452I-1453B;
The South African Law of Unfair Dismissal
,
PAK Le Roux & Andre van Niekerk, p111.’
Mintek justified the distinction between the
appellants and the rest of the forty by alleging that the appellants
either assumed
an active leadership role or had otherwise played an
active part in the detention of the members of management.
Particulars of
the conduct of the appellants were provided in the
minutes of the disciplinary enquiries which were attached to the
appellants’
founding affidavit in the s 43 application and
summarised as follows in the answering affidavit:
‘
Lucas Kekana
(FP 24). Evidence was
led in the disciplinary enquiry which implicated Kekana in the plot
to hold the management team hostage until
the union’s demands had
been met. Inter alia, he was a member of the leadership on that day,
he apparently was a minute taker
during union caucuses, and was
present on more than one occasion when it was stated that the
managers were being held hostage, and
was present when the door was
locked and unlocked to allow persons in and out of the room. By his
conduct, Kekana associated himself
with the detention of the managers
and it was appropriate to conclude that he actively furthered the
objects of the conspiracy to
detain us.
Dennis
Koape
(VP 25). The evidence led at
the enquiry disclosed that Koape articulated the fact that the
managers were held hostage and refused
us permission to leave the
room. Moreover, Koape unconvincingly testified that he was
completely unaware of any restrictions on
the freedom of movement of
the managers at the time. Accordingly in his effort to deny what he
could not have avoided being fully
aware of he betrays his knowledge
and association with the conspiracy to detain the managers.
Jonas
Letswalo
(VP 26). The evidence
disclosed that Letswalo was an active member of the leadership on
that day and was fully aware of the detention
of the managers. He
associated himself with that occurrence and his testimony that he was
aware for the first time that there was
any debate concerning hostage
taking at the end of the day when the workers evacuated offices is
incredible.
Lazarus
Mabiletsa
(VP 27). Mabiletsa was
amongst the more influential leaders of the workers. He was active
amongst the leadership on that day.
He was fully aware of the
detention of the managers, but did nothing whatsoever to disassociate
himself with that conduct.
Philemon
Majola
(VP 28). The evidence led at
the enquiry disclosed that Majola was a doorkeeper who inhibited
access and egress from my office.
He and Kodisang were variously on
guard at the door for this purpose.
Timothy
Mashebela
(VP 29). The evidence
disclosed that Mashebela was amongst those who objected to any of us
going to the toilet, prevented me from
opening the louvre windows,
who seized Du Plessis’s note of the events as they were taking
place, roused the emotions of those
present threatened the disruption
of projects in the Pyro Metallurgy division, and by so doing promoted
the object of the conspiracy
to detain the managers, and to
intimidate them during the period of detention.
Caswell
Mbandazayo
(VP 31). The evidence
disclosed that Mbandazayo incited emotions, inter alia by the use of
a whistle, and at one point threatened
me by stating that I was a
dead man. Mbandazayo’s concession that he said the words in a
jocular mood are not only false, but
totally inconsistent with the
sombre and intimidating atmosphere at the time. At another point in
time he threatened to throw me
out of the window.
William
Motapo
(VP 33). Motapo was actively
involved in the activities of the leadership on that day and was
present throughout when attempts were
made to reassert our freedom of
movement. He associated himself with the others who were bent on
detaining us and as such associated
himself with their conduct.
Nendhouvhada
(VP 34). Nendhouvhada was amongst those who spoke to the Star
reporter, Malala, and confirmed that the managers were being held
hostage. His testimony that we was ignorant of any detention of the
managers is not worthy of credence.
Enoch
Nhlapo
(VP 35). The evidence
against Nhlapo disclosed that he was fully aware of the plot to
detain the managers and fully associated himself
with it. Inter
alia, it was he who in the debate concerning the extent to which we
should be detained asserted that it was a “human
right” to be
allowed to go to the toilet. He stated inter. alia, that we would be
detained for as long as it took to capitulate
to their demands. His
testimony that he was ignorant of any inhibition on the freedom of
movement of the managers is not worthy
of credence. He forbade us to
eat in the diningroom and permitted only food to be sent to us. It
was he who first used the word
“hostage”.
Victor
Pheeha
(VP 36). The evidence
disclosed that Pheeha was amongst the more active members of the
leadership on that day and fully associated
himself with the
detention of the managers. He was present throughout the day and
spoke on behalf of the workers to us, and frequently
addressed the
workers. Inter alia, when the union organiser, Majila, was
challenged with what was to be done about the detention
of the
managers, and he declined to answer, Pheeha likewise was in his
company and likewise avoided giving us a direct answer. He
was
amongst those that spoke to the Star reporter which led to the report
of our being held hostage being published.’
An aggravating factor for Mintek was that at
the disciplinary enquiry some of the appellants denied that members
of management were
held hostage, a denial which could not withstand
scrutiny. What Mintek did, in essence, was to draw a distinction
between the
foot soldiers, who merely occupied Van Vuuren’s room,
and the officers, the leaders, and those whose conduct was
individually
reprehensible
NUM and the appellants dealt with Mintek’s
allegations in the s 43 application, which formed the basis for the
condonation application,
in two ways:-
(a) The founding affidavit of Pheeha contained
no factual allegations, merely submissions which were made on the
distinction drawn
by Mintek during the disciplinary enquiry between
those dismissed and those given final warnings.
(b) In the replying affidavit the allegations
of Mintek in the answering affidavit were generally denied in bald
terms So, for example,
it was said in the founding affidavit in
regard to Kekana, that ‘Mr Kekana was dismissed merely because he
was perceived as a leader
of the actions on 13 June 1995.’
Kekana’s version of his role was not placed on record. In the
replying affidavit of Pheeha,
the allegations made by Mintek in its
answering affidavit in regard to Kekana were denied. The denial was
confirmed by Kekana in
a confirmatory affidavit, which contained no
factual allegations. Another example is that relating to the
appellant Koape. In the
founding affidavit of Pheeha, Mintek’s
case against Koape was accurately summarised. The paragraph
concluded as follows:‘It
is submitted that the only distinguishing
factor relating to Mr Koape is that he was perceived as part of the
leader group.’ Koape’s
version was not set out. Mintek’s
allegations in the answering affidavit in regard to Koape’s role
were denied in the replying
affidavit. No confirmatory affidavit was
made by Koape. It follows that Koape’s version of his role was not
before the industrial
court in the s 43 proceedings. Some of the
appellants denied specific allegations, for example, that one of the
appellants was a
door keeper. The denial was in bald terms. If that
appellant was not the door keeper, one asks oneself what did he do in
the room
the whole day? Not a single affidavit was filed in which
the role of the appellants was described. In short, there is no
genuine
dispute of fact, which should be resolved by the hearing of
oral evidence in a trial, and the prospects of success must of
necessity
be assessed on the basis of what transpired during the
disciplinary hearing.
It is no wonder that the industrial court
dismissed the s 43 application.
When it came to applying for condonation, some
eighteen months later, one would have expected NUM and the
appellants to deal with
the merits more convincingly. As a minimum,
each appellant should have described his role in the hostage taking
and provided particulars
to show that this conduct was no different
from that of the employees who were not dismissed. Counsel for NUM
and the appellants
would then have been in a position to argue that,
on those facts, no distinction could justifiably be drawn between
the twelve
employees who were dismissed and the twenty eight who
were not dismissed. What was done in the condonation application,
instead,
was to refer to the s 43 application: an application which
had been dismissed by the industrial court with trenchant criticism

of the conduct of the appellants.
The appellant’s prospects of success remain
as unconvincing as they were January 1996, when the s 43 application
was dismissed.
The appeal is dismissed, with costs.
Myburgh J P
I
agree
Froneman
D J P
I agree
Cameron
J A
Date of Hearing: 4
August 1998
Date of Judgment: 17
August 1998
Counsel for Appellant:
Adv P Pretorius assisted by Adv P R Jammy, instructed by Cheadle
Thompson & Haysom
Counsel for
Respondent: Adv A E Franklin instructed by Webber Wentzel &
Bowens
This judgment is
available on the internet at: http://www.law.wits.ac.za/labourcrt