Rustenburg Base Metal Refiners (Pty) Ltd and Another v National Union of Mineworkers and Others (JA34/2002) [2003] ZALAC 23 (23 December 2003)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2003
>>
[2003] ZALAC 23
|

|

Rustenburg Base Metal Refiners (Pty) Ltd and Another v National Union of Mineworkers and Others (JA34/2002) [2003] ZALAC 23 (23 December 2003)

15
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN
JOHANNESBURG
Case no:
JA34/2002
In
the matter between:-
RUSTENBURG
BASE METAL
REFINERS
(PTY)LTD 1
ST
APPELLANT
PRECIOUS
METALS REFINERS (PTY)LTD 2
ND
APPELLANT
and
THE
NATIONAL UNION OF 1
ST
RESPONDENT
MINEWORKERS
THE
NATIONAL UNION OF 2
ND
RESPONDENT
METAL WORKERS OF
SA
THE
COMMISSION FOR CONCILIATION, 3
RD
RESPONDENT
MEDIATION AND
ARBITRATION
___________________________________________________________
JUDGEMENT
___________________________________________________________
ZONDO
JP
[1] The
first appellant in this matter is Rustenburg Base Metal Refiners
(Proprietary)Limited, a duly registered company with limited
liability. The first respondent is the National Union of Mineworkers
which is a duly registered trade union. The second respondent
is the
National Union of Metal Workers of South Africa, a duly registered
trade union. The third respondent is the Commission for
Conciliation,
Mediation and Arbitration
(“the
CCMA”
)
which is established by sec 112 of the Labour Relations Act, 1995
(Act 66 of 1995
)(“the
Act”)
as juristic person whose main functions are the conciliation,
Mediation and Arbitration of certain disputes as provided for in the
Act.
[2] The
appellants are wholly owned subsidiaries of a company called Anglo
Platinum Limited. The appellants are based in Rustenburg.
The
appellants carry out certain benefication operations on behalf of
various platinum mining companies falling within the Anglo
Platinum
Group. In the founding affidavit the Anglo Platinum Group of
companies is described as the largest platinum producer in
the world.
It is also said in the founding affidavit that all platinum ore that
needs to be processed, together with the ancillary
precious and base
metals, are processed through the appellants.
[3] One,
if not both, of the first and second respondents has as its members
some of the employees employed by each one of the two
appellants. One
of the first and second respondents does not seem to have as its
members any employees employed by one of the appellants.
It is not
clear exactly which one of the first and second respondents does not
have as its members any of the employees employed
by which one of the
two appellants. Nothing, it appears, really turns on this. What is
clear is that one of the first and second
respondents does not have
any members in the employ of one of the two appellants.
[4] The
first appellant’s employees had signed different types of contracts
of employments. The one group of employees had signed
contracts of
employment which the first appellant says were signed by employees
who were employed before 1989. For convenience this
contract will be
referred to as the old contract of employment. These contracts had a
clause to the effect that the employees concerned
had to become
members of either the Good Hope Medical Society (“
Good
Hope
”)
or the Anglo American Managed Care Plan (“
the
AACMED
”).
Another type of contract of employment was one that had been signed
by employees who were employed after 1989. For convenience
these
contracts will be referred to as the new contracts of employment.
[5] The
respondents suggested in their answering affidavit that there was yet
another type of contract. However, clause 7.2 of that
contract, which
contains the relevant provisions, reads exactly the same as clause
7.2 of the new contract which contains the provisions
that are
relevant to this matter. The new contracts did not make reference to
any specific medical aid. However, they did contain
a clause in the
following terms:-
“
The
employee shall join and conform with the rules of the Pension Fund of
/ Provident Fund / Retirement Fund or insurance arrangement
or
medical aid / benefit society nominated by the company when required
to do so as a condition of employment.”
[6] From what has
been said above it will be clear that that category of the first
appellant’s employees who had signed the old
agreement was entitled
as a term or condition of employment to be members of one of two
medical aid schemes, namely, Good Hope or
AACMED while the other
category of employees was not entitled to be members of any specific
medical aid scheme but were obliged to
become members of any medical
aid scheme that the first appellant nominated as a condition of
employment.
[7] Towards
the end of 2001 the first appellant began consultations with the
first and second respondents on its proposal to implement
Platinum
Health, a health management organisation owned and managed by Anglo
Platinum Management Services (Pty)Ltd. The first appellant
wanted to
implement this proposal in respect of both categories of its
employees irrespective of which one of the two contracts they
had
signed as the contract of employment.
[8] The
first and second respondents, hereinafter referred to as “the
unions”, rejected the first appellant’s proposal. Despite
the
union’s rejection of the proposal, the first appellant informed the
unions that it intended to implement its proposal with
effect from
the 1
st
April 2002. The implications of the implementation of this proposal
were, among others, that those employees of the first appellant
employed in terms of the old contracts of employment who were on the
Good Hope medical aid scheme or on the AACMED plan would be
moved
from those medical aid schemes and put on to the Platinum Health.
[9] The
unions’ response to the first appellant’s plan to implement its
proposal was to submit numerous dispute referrals to the
CCMA for
conciliation during the first half of 2002. Except for two, these
referrals were submitted to the CCMA during March, April
and before
the 28
th
May 2002.
[10] On the 28
th
and 29
th
May 2002
the first and second respondents withdrew all the disputes that they
had hitherto referred to the CCMA concerning the medical
aid issue.
On the same days they referred to the CCMA respectively two disputes
which were allocated the CCMA case numbers NW 3043/02
and NW 3021/02.
The appellants reacted to the service of these referrals on them by
launching an urgent application before the Labour
Court for an
order:-
declaring that the first and second respondents were in
breach of clause 5.2.8 of the Employee Relations Policy Agreement
entered
into between them and the appellants in referring to the
CCMA disputes concerning the implementation of Platinum Health as a
medical
aid for the appellants’ employees, and,
interdicting the first and second respondents from
continuing to process the conciliation of the disputes in terms of
sec 134 or
any other provisions of the
Labour Relations Act, 66 of
1995
in the CCMA;
interdicting the CCMA from conciliating or taking any
further steps in relation to the disputes allocated CCMA case
numbers NW 3021/02
and NW 3043/02.
[11] When the appellants launched the urgent application
in the Labour Court, the CCMA had given notice of the dates when
conciliation
meeting would be held in regard to one of the disputes.
From the orders prayed for in the appellants notice of motion it is
clear
that the appellants did not want anything further to be done
either by the CCMA or by the first and second respondents in regard
to the dispute referrals or in regard to the disputes themselves.
[12] The Labour Court, through Sutherland AJ, dismissed
the urgent application with costs. With the leave of the Court a quo,
the
appellants now appeal against that judgement and order.
The appeal
[13] The case that the appellants had sought to make out
in their founding affidavit was largely based on their assertion that
the
first and second respondents’ conduct in referring the two
disputes to the CCMA for conciliation was in breach of the Employment
Relations Policy Agreement signed between the parties. However, on
appeal Mr Cassim, who, together with Mr Hutton, appeared for the
appellants informed us that he was abandoning any reliance on the
Employment Relations Policy Agreement or its breach.
[14] Mr Cassim pointed out that the appellants’ case
on appeal was that the two disputes that the first and second
respondents referred
to the CCMA on the 28
th
and 29
th
May 2002
were the same as some of the disputes that had previously been
referred to the CCMA by the first and second respondents
in respect
of which Zilwa AJ,
sitting in the Labour Court, had granted a certain
interdict. Mr Cassim submitted that Zilwa AJ’s order had
interdicted the CCMA
from holding conciliation proceedings in regard
to those disputes and the two unions from pursuing those disputes
pending the determination
of a certain application that the
appellants were required to launch by a given date. Mr Cassim
submitted in effect that the first
and second respondents should be
interdicted from taking the disputes any further and the CCMA from
conciliating the disputes because
that would be in breach of Zilwa
AJ’s order. In this regard Mr Cassim conceded that, if the two
disputes were not the same as any
of the disputes that were the
subject matter of the order granted by Zilwa AJ, the appeal should in
that event fail.
[15] Before it can be ascertained whether the two
disputes are the same as any of the disputes that were the subject of
Zilwa AJ’s
order, it is, in my judgement, necessary to refer to
Zilwa AJ’s order. This is necessary because, if it is found that
the conduct
which the appellants sought to interdict in this matter
falls outside the ambit of the order granted by Zilwa AJ, then the
appeal
must fail because the appellants’ case, as argued on appeal,
is based on the conduct of the CCMA and of the first and second
respondents
being in breach of Zilwa AJ’s order. Zilwa AJ’s order
was that:-
“
1. Pending the final determination of an
application launched by the applicants for declaring relief
concerning the implementation
of the Health Management Organisation:
1.1 The third respondent is interdicted and
restrained from holding conciliation proceedings in relation to the
referrals submitted
to it by the first respondent under reference
numbers NW2150/02 and NW1971/02 and by the second respondent under
reference numbers
NW1892/02 and NW2197/02;
1.2 The
first and second respondents are interdicted and restrained from
promoting, inciting and instigating their members to participate
in
any unlawful industrial action in relation to the implementation by
the applicants of the Health Management Organisation.
The applicants shall launch a substantive
application for declaratory relief concerning the implementation of
the Health Management
Organisation, by no later than Monday, 13 May
2002, failing which the orders in paragraph 1 above shall forthwith
lapse and be
of no force and effect.
The costs of this application shall be reserved for
determination by the Court hearing the substantive application”.
[16] The first and second respondents in the matter
before Zilwa AJ were the first and second respondents in this appeal.
The appellants
in this appeal were the applicants before Zilwa AJ.
The third respondent before Zilwa AJ was the CCMA. It is also the
third respondent
in this appeal. It is clear from Zilwa AJ’s order
that the only part of that order that was directed against the first
and second
respondents is order 12. That order says absolutely
nothing about the first and second respondents being interdicted from
referring
the disputes referred to in that order to the CCMA for
conciliation pending the final determination of the application
contemplated
in par 2 of that order. Indeed, it says nothing about
the first and second respondents being interdicted from doing
anything about
those disputes.
[17] In the present case the order that the appellants
sought in the Court a quo against the first and second respondents,
if one
leaves out the declaratory order based on the breach of the
Employment Relations Policy Agreement, was that they be interdicted
“from continuing to process the
conciliation”
of the disputes in terms of
the Act. Zilwa AJ’s order contains no such interdict against the
first and second respondents. Accordingly,
it seems to me that the
appellants’ reliance on Zilwa AJ’s order to seek the order that
they sought was misconceived.
[18] With
regard to the CCMA Zilwa AJ’s order was to the effect that the CCMA
was interdicted from holding conciliation proceedings
in relation to
the referrals submitted to it by the first respondent under reference
numbers NW 2150/02 and NW 1971/02 and by the
second respondent under
reference numbers NW 1892/02 and NW 2197/02. In the present matter
the order that the appellants sought against
the CCMA was one
interdicting the CCMA from conciliating or taking any further steps
in relation to the two disputes in question.
To interdict the CCMA
from conciliating a dispute probably falls within the ambit of
holding conciliation proceedings in regard to
a dispute. From that
point of view I would agree that at least that part of the order that
the appellants sought against the CCMA
in the present matter that
referred to conciliation would fall within conduct by the CCMA which
Zilwa AJ’s order interdicted. That
part of the order in the present
matter that the appellants sought against the CCMA which referred to
interdicting the CCMA from
taking any further steps in relation to
the disputes probably fell outside the ambit of the order granted by
Zilwa AJ. However, for
purposes of this case I shall assume, without
deciding, in the appellants’ favour that even that part of the
order fell within
the ambit of Zilwa AJ’s order.
[19] The first and second respondents have admitted in
their answering affidavit that the dispute referred to the CCMA by
the first
respondent on the 29
th
May 2002 which was allocated the CCMA case number NW 3021/02 is the
same as the dispute which was referred to the CCMA and allocated
CCMA
case number NW 2150/02 and which was the subject matter of Zilwa AJ’s
order. The dispute in CCMA case number NW 2150/02 was
referred to the
CCMA by the first respondent on the 16
th
April 2002 against the first appellant. I have examined the
information written about the dispute in both referrals and I agree
that it is the same dispute. That, therefore, means that, in respect
of that dispute, at the time of the second referral of that
dispute
when it was allocated a new CCMA case number the CCMA was still
interdicted by Zilwa AJ’s order from conciliating that
dispute.
That being the case, there was no need for the appellants to approach
the Labour Court for a second order interdicting the
CCMA from
conciliating the dispute. I have no doubt that the CCMA, if it was
served with Zilwa AJ’s order, would not have conciliated
the
dispute. I leave out of consideration, for present purposes, the
question of how this would have helped the appellants since
in terms
of the Act once a period of 30 days from the date of the referral of
a dispute has expired, the relevant union and its members
could have
taken the dispute further. It seems to me that an order that the CCMA
should not conciliate a dispute lacks the necessary
efficacy. I doubt
if such an order is competent but it is not necessary to decide that
issue. For present purposes I shall assume
that such an order is
competent.
[20] It
seems to me that, instead of approaching the Labour Court for another
order in respect of a dispute that is covered by Zilwa
AJ’s order,
the appellants should have brought this fact to the attention of the
CCMA and sought an undertaking from the CCMA that
it would not
conciliate the dispute. If such an undertaking was sought given and
honoured, there would have been no need for this
application in
respect of the dispute in question. If, however, the CCMA did not
give the undertaking and proceeded to conciliate
the dispute, the
appellants could have then brought contempt of court proceedings
against the CCMA.
[21]
Before us Mr Cassim advanced two bases why, in his submission, a
resort to contempt of court proceedings would not have been
appropriate. The one basis was that the appellants have continuing
relationships with the unions involved in this matter which would
be
affected adversely by such proceedings. This argument is misplaced.
On the facts of this case it is not the unions against whom
the
appellants would have had to institute contempt of court proceedings.
It is the CCMA. The unions have not acted in breach of
Zilwa AJ’s
order by referring these two disputes to the CCMA for conciliation.
[22] The
second basis on which Mr Cassim sought to justify the appellants’
failure to await the bringing of contempt of court proceedings
was
that in such proceedings the applicant party must show that the
failure or refusal to obey the order of court is wilful and mala
fide
and this would, in this case, create material disputes of fact. There
is no merit in this submission. Material disputes of fact
arise often
in motion proceedings and there is an established practice in our
courts of how disputes of fact must be dealt with in
such
circumstances. The fact that such disputes of fact may arise is no
reason for a party not to make use of contempt of court proceedings
when they are the proceedings that should be resorted to.
[23] The dispute referral that was allocated CCMA case
number NW 3043/02 was annexed to the founding affidavit as annexure
DM 20.
The CCMA’s notice of set down was annexed as annexure
“
DM21
”. In that
referral form the party who referred the dispute is reflected as
second respondent in these proceedings. It was signed
on the 28
th
May 2002. The other party to that dispute was given as the first
appellant in this appeal. The nature of the dispute in that referral
was given as
“mutual interest”.
In the space provided in the referral form where the referring party
was required to give a brief summary of facts relating to the
dispute, the second respondent wrote: “
The
employer changed or seeks to change employees from their current
medical aid schemes to ‘Platinum Health’, a health management
organisation
”. The dispute was alleged in
the form to have arisen on the 1
st
April 2002. On details of dispute procedures followed, second
respondent stated in the referral form that
“(t)he
parties have negotiated to deadlock”.
[24] In the referral form the second respondent stated,
in the space provided for a statement of the desired result out of
conciliation,
that
“(t)he unions (sic)
members demand that they be members of either AACMED or Good Hope.
Any change that employer seeks to make regarding
the medical schemes
must first be agreed upon between the union and employer”.
In
the space provided for the referring party to state the special
features of the dispute, the second respondent stated in the referral
form that
“(t)he dispute, concerns a large
number of workers, and an important and emotive issue. The union will
seek the conciliation of
this dispute on an urgent basis… all
previous referrals, concerning this issue, have been withdrawn”.
[25] In paragraph 55 of the founding affidavit the
appellants stated that the description and characterisation of the
dispute under
CCMA case number NW 3043/02 in the referral form
(Annexure DM 20) is exactly the same as the description and
characterisation of
dispute referred by the first respondent on 16
April 2002 which the appellants said was “
described
in section 47.1 supra”.
There is no sec
47.1 in that affidavit. It seems to be a reference to par 49.1. Par
49.1a refers to annexure “
DM14
”
which was referred to the CCMA by the first respondent on 16 April
2002. It is true that the description and characterisation
of the
dispute in annexure DM 14 and the contents of that annexure are the
same as the description, characterisation of the dispute
in annexure
DM 20” and that the contents of its contents are the same as those
of DM 20 (which is case no NW 3043/02 except that
the referring party
in DM 14 is the first respondent whereas in DM 20 it is the second
respondent and that in annexure DM20 the second
respondent added the
words “all previous referrals, concerning this issue, have been
withdrawn” which the first respondent did
not do in annexure
“DM14
”. The
dispute covered in annexure DM14 is said by the appellants in par
49.1 to have been allocated the CCMA case number NW2150/02.
The
latter is, of course, the CCMA case number that is linked to the
dispute allocated CCMA case no NW 3021/02. The link between
CCMA case
no NW 3021/02 and NW 2150/02 have been dealt with above. The
appellants have not in their affidavits linked CCMA case no
NW
3043/02 to any CCMA case numbers appearing in Zilwa AJ’s order.
That being the case the appellants have failed to show that
the
dispute under case no NW 3043/02 was in any way the subject of Zilwa
AJ’s order. Accordingly the appellants’ appeal must
fail in
regard to such dispute as well.
[26] In
the light of all of this I conclude that the appellants’ appeal
falls to be dismissed. Mr Cassim left the issue of costs
in the
Court’s hands. The first and second respondent’s Counsel asked
that costs should follow the result. I am of the view that
the
appellants’ application to the Court a quo was so misconceived that
the requirements of law and fairness dictate that the appellants
should be ordered to pay the costs despite the existence of the
continuing relationship between the appellants and the first and
second respondents.
[27] In
the result the appeal is dismissed and the appellants are ordered to
pay the first and second respondents’ costs jointly
and severally,
the one paying the other to be absolved.
Zondo JP
I agree.
Davis AJA
I agree.
Jafta AJA
Appearances:
For the Appellant: Adv. N. Cassim SC, Adv. Hutton
Instructed
by: Leppan Beech Attorneys
For the
1
st
and
2
nd
Respondents: Adv Van der Riet SC
Instructed by: Cheadle Thompson and Haysom Inc
No
appearance for the third Respondent.
Date
of Judgement: 23 December 2003