About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2016
>>
[2016] ZALAC 18
|
|
Association of Mineworkers and Construction Union ("AMCU") and Others v Buffalo Coal Dundee (Pty) Ltd and Another (JA42/2015) [2016] ZALAC 18; (2016) 37 ILJ 2035 (LAC); [2016] 9 BLLR 855 (LAC) (11 May 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: JA42/2015
In the matter between:-
ASSOCIATION OF
MINEWORKERS AND
CONSTRUCTION UNION
(“AMCU”)
Appellant
INDIVIDUALS
LISTED IN ANNEXURE “A”
Second
to Further Appellants
and
BUFFALO
COAL DUNDEE (PTY) LTD
First
Respondent
ZINOJU
COAL (PTY) LTD
Second
Respondent
Heard
:
4
November 2015
Delivered
:
11
May 2016
Summary:
Interpretation of section 52(4) of the Mineral Resources and
Petroleum Development Act (MRPDA) in relation to the holder
of a
mining right that has subcontracted the mining operation to another
entity in the event of retrenchment. Question for consideration
is
whether mining rights holder entitled to be part of the consultation
process in terms of section 189 of the LRA – interpretation
must be consonant with the objectives of the MRPDA to ensure that
holders of mining and production rights contribute towards the
socio-economic development of the areas in which they are operating –
mining rights holder submitting a social and labour
plan and it would
be senseless to do so if it were to be excluded from the consultation
process - irrespective of the fact that
the mining rights holder
subcontracted the mining operation, the mining rights holder remains
responsible for the implementation
of the retrenchment process.
NUM
v Anglo American Platinum
distinguished - contractor was supposed
to invite the mining rights to be part of the whole retrenchment
process. The mining rights
had a duty to insist to be part of the
retrenchment process. The failure of the mining rights holder to be
part of the process
rendered it procedurally unfair. Despite the
procedural flaw, court finding that reinstatement impractical -
Appeal dismissed -
Labour Court’s judgment set aside only to
the issue of costs.
Coram: C J Musi,
Coppin JJA e
t
Makgoka AJA
JUDGMENT
CJ MUSI JA
[1] This appeal
essentially concerns the duties and responsibilities of a mining
right holder that is not the employer, in the event
of retrenchment.
[2] The appellants
approached the Labour Court, (Prinsloo AJ), on an urgent basis,
seeking an order in the following terms:
‘
a.
An order declaring that the Respondents have failed to comply with a
fair procedure in terms of section 189A(13)
of the Labour Relations
Act (LRA) and with section 52 of the Mineral Petroleum Resources
Development Act (MPRDA);
b. Interdicting the
Respondents from giving effect to the notices of termination issued
on 11 March 2015 which
notices of termination take effect on 11 April
2015, until such time the Respondents complied with a fair procedure
and complied
with the obligation set out under the MPRDA and
particular the social of labour plan;
c. Alternatively if
the Court finds that the notices of termination issued to the
individual applicants resulted
in their dismissal, direct the
Respondents to reinstate the individual applicants until there is
compliance with a fair procedure
and section 52 of the MRPDA,
alternatively order the payment of 12 months compensation, further
alternatively refer this matter
to trial.’
[3] The Labour Court
dismissed the application with costs. The appellants appeal, with the
leave of the court
a quo
, against the order of the Labour
Court.
[4] The facts of this
matter are common cause and may be summarised as follows.
[5] The first and second
respondents are companies with limited liability registered in terms
of the company laws of the Republic
of South Africa. The second
respondent (Zinoju) is a 70% owned and controlled subsidiary of the
first respondent (Buffalo Coal).
[6] Zinoju is the mining
right holder, while the mine is operated by Buffalo Coal. The two
entities entered into an agreement in
terms of which Buffalo Coal
operated the mine.
[7]
On 22 December 2014, Buffalo Coal issued a notice in terms of section
189(3) of the Labour Relations Act 66 of 1995 (the Act)
[1]
to the first appellant (Association of Mineworkers and Construction
Union (AMCU)) and the National Union of Mineworkers (NUM),
the two
unions recognised by the mine. Buffalo Coal also requested the
Commission for the Conciliation Mediation and Arbitration
(CCMA) to
facilitate the process in terms of section 189A(3)(a) of the Act
[2]
.
Mr Ndaba was appointed as facilitator by the CCMA.
[8] The section 189(3)
notice spans 18 pages and sets out the dire financial position of
Buffalo Coal and the restructuring measures
it undertook to keep the
wolf from the door. It also set out the alternatives considered
before deciding to retrench, the number
of employees and job
categories likely to be affected, the proposed method of selection,
the timing of the dismissals, severance
pay, the purpose of and
issues for consultation, assistance to be offered to employees and
possible future employment.
[9] Zinoju, as the mining
right holder, advised the Department of Mineral Resources on 22
December 2014 that Buffalo Coal issued
a section 189(3) notice to its
employees. It also informed the mayor of Endumeni Municipality, in
whose jurisdiction the mining
operations were undertaken, about the
section 189(3) notice.
[10] The first
consultation meeting was supposed to be held on 20 January 2015, it
was however postponed to 30 January 2015 due
to the unavailability of
an interpreter. NUM and AMCU were not prepared to continue without an
interpreter.
[11] On 30 January 2015,
Buffalo Coal provided the unions with its financial statements. A
copy of the Social and Labour Plan (SLP)
submitted by Zinoju to the
Department of Mineral Resources was also provided. Buffalo Coal
however contended that it was not obliged
to comply with the
obligations set out in the SLP because it was not the mining right
holder. AMCU was of the view that Buffalo
Coal should comply with the
SLP because it is the majority shareholder of Zinoju.
[12] AMCU insisted that
Zinoju should be part of the consultative process so that it could
explain how it would comply with its
obligations in terms of its SLP.
Buffalo Coal indicated that although some of the directors of Zinoju
would be attending the consultations,
they would do so in their
capacities as board members of Buffalo Coal. Buffalo Coal informed
AMCU that Zinoju would not be part
of the consultations because it
(Zinoju) was not retrenching employees.
[13] During the meeting
held on 9 February 2015, AMCU raised the issue of Buffalo Coal’s
non-compliance with the SLP. Buffalo
Coal was unrelenting in its
stance that it was not the mining right holder and therefore had no
obligation to comply with the SLP.
[14] AMCU’s
proposal that a task team should be established to look into the
restructuring and possible retrenchments at Buffalo
Coal’s
Magdalena Underground Operations (MUG) was accepted. The task team
was formed on 10 February 2015. The terms of reference
of the task
team were agreed upon. AMCU proposed that a mining expert should
assist the task team. Mr Johnson, a consultant from
RSV Enco was
appointed by AMCU as the technical mining expert to assist the task
team. The task team met on 16 February 2015. On
17 and 18 February
2015, Mr Johnson went on a detailed site visit with the other task
team members. He was granted access to technical
and financial
information about MUG and Buffalo Coal ostensibly to enable him to
provide an informed expert assessment to the task
team. The task team
produced a report on 19 February 2015.
[15] The parties met on
23 February 2015. AMCU then requested, for the first time, Zinoju’s
financial statements, which were
provided. AMCU proposed an extension
of the consultation process in order to procure advice on Zinoju’s
financial statements.
The request was refused.
[16] The parties met
again on 24 February 2015 and they agreed that the task team should
meet between 25 and 27 February 2015, even
though the consultation
process under the Act had already run its course. The task team met
and produced a report in which it concluded
that the MUG was in
financial dire straits.
[17] Throughout the
process, AMCU made verbal proposals in relation to ways to avoid
dismissals and other related issues. It only
made written proposals
on 11 March 2015 wherein it,
inter alia
, suggested that LIFO
should be applied as the selection criteria.
[18] The task team
investigated ways to avoid dismissals. It identified various
positions which could and were filled to reduce
the number of
retrenchments. The task team also recommended that voluntary
severance packages should be offered to employees. This
was done.
[19] On 2 March 2015, the
parties met to consider the latest report and recommendations of the
task team. The parties tabled their
final proposals. Between 2 and 10
March 2015, Buffalo Coal considered the verbal recommendations made
by AMCU. Some of AMCU’s
recommendations were accepted which
reduced the number of employees identified for retrenchment.
[20] On 10 March 2015,
Buffalo Coal wrote to AMCU explaining why it could not accept all
AMCU’s proposals. In the same letter,
Buffalo Coal stated that
although Zinoju was not retrenching its own employees, it (Zinoju)
would provide the necessary support
to Buffalo Coal employees being
dismissed in order to ameliorate the social and economic impact on
individuals who were dismissed.
Buffalo Coal set out in detail the
assistance that Zinoju would give to dismissed employees. The
assistance offered conformed
with Zinoju’s SLP. The list of
affected employees was supplied to AMCU and letters of termination
were issued, on 10 March
2015, to those employees.
[21] The appellant
contended, in the court
a quo
, that Zinoju and Buffalo Coal
were co-employers of the second appellants (workers). They relied on
the provisions of section 200B
of the Act. They further contended
that Zinoju, as the mining right holder was supposed to be part of
the consultation and that
its exclusion rendered the consultation
process unfair. They submitted that Buffalo Coal, and Zinoju did not
comply with section
52 of the Mineral Resources and Petroleum
Development Act, 28 of 2002 (MRPDA). They further submitted that
Buffalo Coal did not
follow a fair procedure by failing to consult
over the list of affected employees and that it refused a reasonable
request to extend
the consultative process in circumstances where the
alternatives to dismissal were not exhaustively considered.
[22]
The court
a
quo
found that section 200B, which was inserted by the Labour Relation
Amendment Act,
[3]
did not have
retrospective operation. The section came into operation on 1 January
2015, whilst the consultation process started
on 22 December 2014.
The court
a
quo
also found that Buffalo Coal did not have to comply with the
provisions of section 52 of the MPRDA as it placed an obligation on
the mining right holder and not an employer who is not the mining
right holder. The court
a
quo
however did not answer the most important question viz whether Zinoju
was supposed to be part of the consultative process. In respect
of
the list of affected employees and the refusal of the extension of
the process, the court
a
quo
found in favour of the respondents.
[23] In this Court, Mr
Boda on behalf of the appellants limited his submission to the
retrospective application of section 200B
and the applicability of
section 52 of the MPRDA.
[24] Section 200B of the
Act reads as follows:
‘
200B
Liability for employer's obligations
(1) For the purposes of this Act and
any other employment law, 'employer' includes one or more persons who
carry on associated or
related activity or business by or through an
employer if the intent or effect of their doing so is or has been to
directly or
indirectly defeat the purposes of this Act or any other
employment law.
(2) If more than one person is held to
be the employer of an employee in terms of subsection (1), those
persons are jointly and
severally liable for any failure to comply
with the obligations of an employer in terms of this Act or any other
employment law.”
[25] Mr Boda contended
that section 200B is applicable in this case because the
consultations only started on 20 January 2015, i.e.
after the
Amendment Act came into operation. Mr Watt-Pringle contended that the
consultations started on 22 December 2014 when
the section 189(3)
notice was issued, that being the case, section 200B was therefore
not applicable because the process started
before the section became
operational.
[26] Section 200B was
enacted to prevent collusion by two or more persons involved in an
associated or related business by or through
an employer in order to
undermine the provisions of the Act or any employment law. The intent
of the persons or the effect of their
acts or omissions must be to
directly or indirectly defeat the purpose of the Act or any
employment law. If all the requirements
in section 200B are met, the
persons would be “employers” and therefore jointly and
severely liable for any failure
to comply with the obligations of an
employer in terms of the Act or any other employment law.
[27] The Memorandum on
the objects of the Labour Relations Amendment Bill of 2014 states
that:
‘
Insertion of
section 200B of Act 66 of 1005: A new section is inserted to prevent
simulated arrangement or corporate structures
that are intended to
defeat the purposes of the LRA or any other employment law, and to
provide for joint and several liability
on the part of persons found
to be employers under this section for any failures to comply with an
employer’s obligations
under the LRA or any employment law.
This is particularly important in the context of subcontracting and
outsourcing arrangements
if these arrangements are subterfuges to
disguise the identity of the true employer.’
[28] The party who wants
to invoke section 200B must not only show that the persons are
carrying on or conducting an associated
or related business but also
that the intent or effect of doing so is or was to directly or
indirectly defeat the purpose of the
Act or any employment law. In
this matter, the appellants succeeded in showing that the respondents
carried on associated or related
business. They failed to prove that
there was an intention to directly or indirectly defeat the purpose
of the Act or any other
employment law neither did they prove that
the effect of the business arrangement was to indirectly or directly
undermine the purpose
of the Act or any other employment law. It
therefore matters not, for the purposes of this judgment, whether
section 200B has a
retrospective effect or not. We therefore do not
have to decide that point. I now turn to consider the MRPDA.
[29]
One of the objects of the MRPDA is to ensure that holders of mining
and production rights contribute towards the socio-economic
development of the areas in which they are operating.
[4]
Socio-economic development in society is measured with indicators
such as gross domestic product (GDP), life expectancy, literacy
and
levels of employment.
[30] Employee is defined
in the MRPDA as any person who works for the holder of a mining right
and who is entitled to receive any
remuneration and includes any
employee working at the mine, including any person working for an
independent contractor.
[31] In terms of section
11 of the MRPDA, a mining right or an interest in such right may not
be transferred, alienated or in any
way disposed of without the
written consent of the Minister of Minerals and Energy, except in the
case of change of controlling
interest in listed companies.
[32] Section 101 makes it
clear that the holder of a mining right may employ a contractor to
mine on its behalf but the holder of
the mining right would remain
responsible for compliance with the Act. Section 101 reads as
follows:
‘
101
Appointment of contractor
If the holder of a right, permit or
permission appoints any person or employs a contractor to perform any
work within the boundaries
of the reconnaissance, mining,
prospecting, exploration, production or retention area, as the case
may be, such holder remains
responsible for compliance with this
Act.’
Section 52 of the MRPDA
reads as follows:
‘
52 Notice
of profitability and curtailment of mining operations affecting
employment
(1) The holder of a mining right must,
after consultation with any registered trade union or affected
employees or their nominated
representatives where there is no such
trade union, notify the Minister in the prescribed manner-
(a) where prevailing economic
conditions cause the profit to revenue ratio of the relevant mine to
be less than six per cent
on average for a continuous period of 12
months; or
(b) if any mining
operation is to be scaled down or to cease with the possible effect
that 10 per cent or more of the
labour force or more than 500
employees, whichever is the lesser, are likely to be retrenched in
any 12-month period.
(2) The Board must, after
consultation with the relevant holder, investigate-
(a) the circumstances
referred to in subsection (1); and
(b) the socio-economic and
labour implications thereof and make recommendations to the Minister.
(3) (a) The
Minister may, on the recommendation of the Board and after
consultation with the Minister of
Labour and any registered trade
union or affected persons or their nominated representatives where
there is no such trade union,
direct in writing that the holder of
the mining right in question take such corrective measures subject to
such terms and conditions
as the Minister may determine.
(b) The holder of the
mining right must comply with the directive and confirm in writing
that the corrective measures
have been taken.
(c) If the directives
contemplated in paragraph (a) are not complied with, the Minister may
provide assistance to or
apply to a court for judicial management of
the mining operation.
(4) The holder of a mining
right remains responsible for the implementation of the processes
provided for in the Labour
Relations Act, 1995 (Act 66 of 1995),
pertaining to the management of downscaling and retrenchment, until
the Minister has issued
a closure certificate to the holder
concerned.’
[33] The MRPDA contains
an interpretation clause. Section 4 thereof reads as follows:
‘
1.
When interpreting a provision of this Act, any reasonable
interpretation which is consistent with the objects of
this Act must
be preferred over any other interpretation which is inconsistent with
such objects.
2. In so far as the
common law is inconsistent with this Act; this Act prevails.”
[34]
In terms of regulation 42 of the regulations promulgated in terms of
the MRPDA, an application for
a mining right must be accompanied by a
social and labour plan (SLP). The SLP, after approval, is valid until
a certificate of
closure has been issued in terms of section 43 of
the MRPDA.
[5]
Once the mining
rights to which the SLP pertains have been granted, the SLP may only
be amended with the consent of the Minister.
[6]
The holder of a mining right must submit an annual report on the
compliance with the SLP to the relevant Regional Manager.
[35] In terms of
regulation 46, the contents of the SLP must include the following:
‘
46.
Contents of social and labour plan
(a)
A preamble which provides background information of the mine in
question;
(b)
a human resources development programme which must include-
(i)
a skills development plan which identifies and reports on -
(aa) the number and education
levels of the employees which must be completed in the form of Form Q
contained in Annexure II; and
(bb) the number of vacancies
that the mining operation has been unable to fill for a period longer
than 12 months despite concerted
effort to recruit suitable
candidates which must be completed in the form of Form R contained in
Annexure II;
(ii)
a career progression plan and its implementation in line with the
skills development plan;
(iii)
a mentorship plan and its implementation in line with the skills
development
plan and the needs for the empowerment groups;
(iv)
an internship and bursary plan and its implementation in line with
the
skills development plan; and
(v)
the employment equity statistics which must be completed in the form
of Form S contained in Annexure II and the mine's plan to achieve the
10% women participation in mining and 40% historically disadvantaged
South Africans (HDSA) participation in
Page
35 of 108 Prepared by: In partnership with:
management
within 5 years from the granting of the right or the conversion of
the old order right.
(c)
A local economic development programme which must include –
(i)
the social and economic background of the area in which the
mine
operates;
(ii)
the key economic activities of the area in which the mine operates;
(ii)
the impact that the mine would have in the local and sending
communities;
(Publishers Note: Numbering
as published in the original Government Gazette)
(iii)
the infrastructure and poverty eradication projects that the mine
would
support in line with the Integrated Development Plan of the
areas in which the mine operates and the major sending areas;
(iv)
the measures to address the housing and living conditions of the mine
employees;
(v)
the measures to address the nutrition of the mine employees; and
(vi)
the procurement progression plan and its implementation for HDSA
companies
in terms of capital goods, services and consumables and the
breakdown of the procurement which must be completed in the form of
Form T contained in Annexure II.
(d)
processes pertaining to management of downscaling and retrenchment
which must include
–
(i)
the establishment of the future forum;
(ii)
mechanisms to save jobs and avoid job losses and a decline in
employment;
(iii)
mechanisms to provide alternative solutions and procedures for
creating
job security where job losses cannot be avoided; and
(iv)
mechanisms to ameliorate the social and economic impact on
individuals,
regions and economies where retrenchment or closure of
the mine is certain.
(e)
to provide financially for the implementation of the social and
labour plan in terms
of the implementation of -
(i)
the human resource development programme;
(ii)
the local economic development programmes;
(iii)
the processes to manage downscaling and retrenchment.
(f)
an undertaking by the holder of the mining right to ensure compliance
with the social and labour plan and to make it known to the
employees
.”
[36] In terms of section
189(1)(ii) of the Act, an employer who contemplates dismissing one or
more employees for reasons based
on the employer’s operational
requirements must consult with any registered trade union whose
members are likely to be affected
by the proposed dismissals. In
terms of section 189(3), the employer must issue a written notice
inviting the other consulting
party/parties to consult with it and
disclose in writing all relevant information. In terms of section
189(2), the employer and
other consulting parties must, in the
consultation, engage in meaningful point consensus – seeking
process and attempt to
reach consensus on
inter alia
appropriate measures to avoid; minimise the number; change the timing
and mitigate the effects of the dismissals.
[37] The court
a quo
looked at the provisions of the Act and the MPRDA in silos and
followed a segmented approach. It concluded that section 52 of the
MRPDA places an obligation on the mineral right holder, which is
Zinoju. It opined that it is not its task to determine whether
Zinoju
had complied with its obligation under the MRPDA.
[38]
The court
a
quo
,
relying on
National
Union of Mineworkers v Anglo American Platinum and Others
[7]
as authority, then concluded that:
‘
In my view
the obligations the MRPDA places on the holder of a mineral right
remain the obligation of the mineral right holder and
do not extend
to entities or parties who are not mineral right holders, as
contemplated in the MRPDA. In the event that the
mineral right
holder is also the employer of the employers to be affected by a
contemplated retrenchment, the position is different,
as section 189
of the LRA will also come into play.’
[39] The court
a quo’s
conclusion as stated above, unfortunately did not answer the most
important questions viz whether the mining right holder was supposed
to be part of the consultative process and at whose invitation it
should form part of the consultative process.
[40]
In
National
Union of Mineworkers v Anglo American Platinum and Others,
[8]
it was said:
‘
[29]
On the face of it, s 52 does not seek to substitute the procedure
prescribed for that established by
s 189 or s 189 A of the LRA.
First, the obligations that s 52 creates are imposed on the holder of
a mining right, not the employer
of any employees whose security of
employment may be affected by the conditions that trigger the
requirement to give notice and
who may be the subject of any
contemplated retrenchment. It is therefore entirely feasible that the
holder of a mining right may
have obligations in terms of s 52, but
no obligations to employees or registered unions in terms of s 189.
Section 52 therefore
would appear to address a purpose different to
that which underlies s 189 of the LRA, which is the promotion of
consensus on the
employment-related consequences of adverse
operational requirements through a joint consensus-seeking exercise.
Secondly, s 52
makes no reference to any obligation to consult
employees or their representatives about the consequences of any
reduction in the
profit to revenue ratio or scaling down of the
mining operation. The obligation to consult employees and their
representatives
established by s 52 is relevant only to the timing of
notice to the minister. That having been said, s 52(4) acknowledges
that
the holder of a mining right (to the extent presumably that the
holder is the employer of any employees potentially affected by
a
retrenchment) is required to comply with s 189 or 189A, as the case
may be. It does not seem to me, contrary to what is said
by Dale et
al in South African Mineral and Petroleum Law, that notice in
terms of s 52 is to be given only once consultations
conducted under
the LRA have been completed. Whether a s 52 notice ought to precede
any s 189 consultation process or is best conducted
post the issuing
of the notice, or whether the processes ought best to run in
parallel, must necessarily depend on all of the relevant
facts and
circumstances, especially those that serve to trigger the requirement
to give notice in terms of s 52. For example, a
temporary decline in
profit ratios that has a minimal impact on levels of employment will
inevitably be dealt with differently
to the closure of a mine with
the loss of all jobs. In other words, notice in terms of s 52 may
conceivably be required in circumstances
where s 189 does not apply
and conversely, s189 can apply where there is no requirement to give
notice under s 52. When notice
must be given to the minister and when
employees and their representatives must be invited to consult over
the terms of any proposed
retrenchment are matters dealt with by the
MPDRA and LRA respectively. While it is true that any directives
regarding corrective
measures issued by the minister to a mineral
rights holder may impact of the nature and course of a s 189 or s
189A consultation
process, for present purposes, in the absence of
any directive, compliance with s 189 or s 189A does not fall to be
assessed by
reference to s 52.’
[9]
[41]
I agree, to a limited extent, with what was said in
NUM
v Anglo American Platinum
.
I disagree with the statement that:
“…
section
52(4) acknowledges that the holder of a mining right (to the extent
presumably that the holder is the employer of any employees
potentially affected by the retrenchment) is required to comply with
section 189 or 189A as the case may be.”
[42] Before setting out
my reasons for disagreeing with the above statement, I set out,
briefly, the approach to be followed when
dealing with seemingly
conflicting Acts.
[43]
In
Arse
v Minister of Home Affairs and Others,
[10]
it was said that:
‘
[19]
The respondents’ reliance on s 23(2) of the Immigration Act to
justify the appellant’s
detention is, as I have said,
misconceived. Section 23(2) provides that ‘[d]espite anything
contained in any other law’
the holder of an asylum transit
permit becomes, on expiry of the permit, an ‘illegal foreigner’
liable to be dealt
with under the Immigration Act. This contention,
however, does not account for s 21(4) of the Refugees Act which
provides that
‘[n]otwithstanding any law to the contrary’
no proceedings may be instituted or continued against any person in
respect
of his or her unlawful entry into or presence in the country
if that person has applied for asylum in terms of s 21(1) until a
decision has been made on his or her application and that person has
had an opportunity to exhaust his or her rights or review or
appeal
in terms of the Refugees Act. Section 23(2) of the Immigration Act is
a general enactment passed after the Refugees Act
which deals with
the specific situation of refugees. In so far as there may be a
conflict between the two provisions they should
be reconciled. Where
two enactments are not repugnant to each other, they should be
construed as forming one system and as re-enforcing
one another. In
Petz
Products v Commercial Electrical Contractors
it was said:
‘
Where
different Acts of Parliament deal with the same or kindred
subject-matter, they should, in a case of uncertainty or ambiguity,
be construed in a manner so as to be consonant and inter-dependant,
and the content of the one statutory provision may shed light
upon
the uncertainties of the other.
[11]
[44] Can the provisions
of the LRA and the MRPDA be reconciled without, as the Labour Court
did in
NUM v Anglo American Platinum,
limiting the provisions
of section 52(4) of the MRPDA?
[45]
In
S
v Zuma and Others,
[12]
the Constitutional Court sounded a warning that:
‘
If the
language used by the lawgiver is ignored in favour of a general
resort to ‘values’ the result is not interpretation
but
divination.’
[13]
[46]
In
Kent,
NO v South African Railways and Another,
[14]
Maxwell’s Interpretation of Statutes is quoted with approval,
where he states the following:
‘
The language
of every enactment must be so construed as far as possible as to be
consistent with every other which it does not in
express terms modify
or repeal. The law, therefore, will not allow the revocation or
alteration of a Statute by construction when
the words may have their
proper operation without it…’
[15]
[47] The first task, when
there is a conflict, is therefore to look at the language used and in
the process not to ignore any word
or phrase in a section or Act. No
word or part of a section should therefore be construed as
meaningless or useless. The meaning
of an Act should be construed by
looking at all the sections together so that no word or section
becomes unnecessary or meaningless.
When this exercise yields a clear
and unambiguous meaning, which does not lead to absurd consequences,
that law as written must
be applied and no alteration, modification
or revocation should be done, because more harm than good might be
done.
[48] It is clear from the
content of section 52(4) of the MPRDA that the legislature was aware
of the provisions of the Act pertaining
to the “management of
downscaling and retrenchment(s)”.
[49]
The section states that the mineral right holder remains responsible
for the implementation of the processes provided for in
the Act
pertaining to retrenchments. Remain is defined as: be left over after
other parts have been removed or used or dealt with.
Implement is
defined as: put into effect.
[16]
[50] The employer is in
terms of the Act responsible for the retrenchment process. In terms
of section 52(4), the mineral right
holder remains responsible for
the implementation of the processes in the MPRDA in respect of the
management of downscaling and
retrenchment until the Minister has
issued a closure certificate to the holder concerned. This is
irrespective of the employer’s
duties in terms of the Act.
[51] According to the
court
NUM v Anglo American Platinum,
the legislature refers to
a mining right holder as employer. I disagree. The legislature must
have known that the mining right
holder would not necessarily be the
employer because the mining right holder may employ a contractor to
mine on its behalf. It
must therefore be accepted that the
legislature knew that the contractor would be the employer under
those circumstances. The word
“remain” was therefore
deliberately used to emphasise that irrespective of the fact that the
mineral right holder appointed
a contractor to mine on its behalf the
mining right holder would nevertheless remain responsible for the
implementation,
inter alia,
of the retrenchment process.
[52] This makes sense
because the mineral right holder must submit a SLP. The contractor
has no such obligation. It would be senseless
to require a SLP from a
mineral right holder wherein the impact of the mining operations on
the community in the area is set out
and the steps that would be
taken in case of retrenchments and downscaling and then leave the
implementation thereof in the hands
of a contractor (employer) who
has not submitted such a plan. The intention was clearly to keep the
mining right holder responsible
where it is the employer and in the
cases where it is not the employer.
[53] If the purpose of
section 52(4) of the MPRDA is to keep the mining right holder
responsible in its capacity as employer only
then the entire section
52(4) would be superfluous, because the Act deals comprehensively
with the duties of the employer.
[54] In my view, section
52(4) is not and was not intended to be surplusage. Section 52(4) of
the MPRDA and 189 of the Act can be
reconciled without any
modification. Section 189 caters only for the employer. If it is read
with section 52(4) however, the mineral
right holder, even though not
the employer would alone and or together with the employer be
responsible for the implementation
of the retrenchment process.
[55] The mischief that
the legislature wanted to prevent is a situation where the mining
right holder would submit a grand SLP;
be granted mining rights;
employ a contractor and escape all liability or responsibility in
terms of the SLP. The contractor would,
like in this case, argue that
it has no responsibility in terms of the SLP. The workers and the
community, where the mining operations
are or were, would then be
prejudiced.
[56] The stated objective
of the MPRDA, namely, to ensure that holders of mining and production
rights contribute towards the socio-economic
development of the areas
in which they are operating would not be achieved. It is clear that
an interpretation whereby both the
mining right holder and the
employer would be responsible for the implementation of the
retrenchment process, albeit one in terms
of the MPRDA and the other
in terms of the Act, is consistent with the objects of the MPRDA and
should be preferred over the interpretation
adopted by the court
a
quo
.
[57] Section 101 of the
MPRDA also makes plain that the holder of a right remains responsible
for compliance with the provisions
of the Act.
[58] The first respondent
was supposed to invite the second respondent to be part of the whole
retrenchment process. The second
respondent had a duty in terms of
section 52(4) of the MPRDA to be part of the retrenchment process.
The failure of Zinoju to be
part of the retrenchment process rendered
that process procedurally unfair
.
[59] Having come to that
conclusion, however, I do not think that this is a matter where this
Court should order the reinstatement
of the second to further
appellants pending compliance with section 52 of the MRPDA. I say
this for the following reasons. The
first appellant requested and was
given the financial statements of Zinoju before the consultation
process was terminated. It did
not indicate how the dismissals could
be avoided based on the information in the financial statements. In
fact, even in the court
a quo
and before us it could not
demonstrate how the information in the financial statements would
have led to the avoidance of the dismissal
of any of the second and
further appellants.
[60] AMCU was not
bona
fide
during the entire process. It engaged Mr Johnson whilst
knowing that he was employed by a competitor of the first respondent.
Mr
Johnson was actually busy with reconnaissance work on behalf of
the first respondent’s competitor that had an interest in
buying some of the mines of the first or the second respondent. AMCU
knew or ought reasonably to have known this.
[61] Some of the
directors of Zinoju were part of the process although they
represented Buffalo Coal. When they were called upon
to bind Zinoju
to its social and labour plan they did so. They therefore took
decisions on behalf of Zinoju and Buffalo. It is
for that reason that
Zinoju undertook to train the second to further appellants and to
comply with its post dismissal obligations.
This is a matter, in my
view, where no compensation order should be made in light of what was
said above. Although I disagree with
the court
a quo’
s
reasoning, its order, save for the costs part, was correct.
[62] The court
a quo
made a cost order against the appellants. In light of my finding in
relation to the proper interpretation of section 52(4) of the
MRPDA,
considerations of fairness and the law militate against a costs order
being made.
[63] I therefore make the
following order:
1) The
appeal is dismissed with no order as to costs.
(a) The order of
the court
a quo,
dismissing the application, is confirmed save
to the limited extent set out in (b) below.
(b) The order that
the appellants should pay the costs of the application is set aside
and replaced with the following:
“
No
order as to costs”
_____________
C J MUSI JA
Coppin JA and Makgoka AJA
concur in the judgment of C J Musi JA.
APPEARANCES:
FOR THE APPELLANT:
Adv F. Boda SC
Instructed by Larry Dave
Inc. Attorneys
JOHANNESBURG
FOR THE FIRST
RESPONDENT: Adv
Watt-Pringle SC
Instructed by Baker &
McKenzie Attorneys
JOHANNESBURG
[1]
189(3) reads as
follows: “(3) The employer must issue a written notice
inviting the other consulting party to consult
with it and disclose
in writing all relevant information, including, but not limited to-
(a) the reasons for the
proposed dismissals;
(b) the alternatives that
the employer considered before proposing the dismissals, and the
reasons for rejecting each
of those alternatives;
(c)
the number of employees likely to be affected and the job categories
in which they are
employed;
(d)
the proposed method for selecting which employees to dismiss;
(e)
the time when, or the period during which, the dismissals are likely
to take effect;
(f)
the severance pay proposed;
(g)
any assistance that the employer
proposes to offer to the employees likely to be dismissed;
(h)
the possibility of the future re-employment of the employees who are
dismissed;
(i)
the number of employees
employed by the employer; and
(j)
the number of employees that the employer has dismissed for reasons
based on its
operational requirements in the preceding 12 months.
[2]
189A(3)(a) reads
as follows: (3) The Commission must appoint a facilitator in
terms of any regulations made under subsection
(6) to assist the
parties engaged in consultations if-
(a)
the
employer has in its notice in terms of section 189 (3) requested
facilitation;
[3]
Act 6 of 2004.
[4]
See section 2(i)
of the MRPDA.
[5]
43 Issuing of a
closure certificate
(1)
The holder of a prospecting right, mining right, retention permit,
mining permit,
or previous holder of an old order right or previous
owner of works that has [sic] ceased to exist, remains responsible
for any
environmental liability, pollution, ecological degradation,
the pumping and treatment of extraneous water, compliance to the
conditions of the environmental authorisation and the management and
sustainable closure thereof, until the Minister has issued
a closure
certificate in terms of this Act to the holder or owner concerned.
(2)
On the written application in the prescribed manner by the holder of
a prospecting
right, mining right, retention permit, mining permit
or previous holder of an old order right or previous owner of works
that
has ceased to exist, the Minister may transfer such
environmental liabilities and responsibilities as may be identified
in the
environmental management report and any prescribed closure
plan to a person with such qualifications as may be prescribed.
(3)
The holder of a prospecting right, mining right, retention permit,
mining permit,
or previous holder of an old order right or previous
owner of works that has ceased to exist, or the person contemplated
in subsection
(2), as the case may be, must apply for a closure
certificate upon-
(a)
the lapsing, abandonment or cancellation of the right or permit in
question;
(b)
cessation of the prospecting or mining operation;
(c)
the relinquishment of any portion of the prospecting of the land to
which a right,
permit or permission relate; or
(d)
completion of the prescribed closing plan to which a right, permit
or permission
relate.
(4)
An application for a closure certificate must be made to the
Regional Manager in
whose region the land in question is situated
within 180 days of the occurrence of the lapsing, abandonment,
cancellation, cessation,
relinquishment or completion contemplated
in subsection (3) and must be accompanied by the required
information, programmes,
plans and reports prescribed in terms of
this Act and the National Environmental Management Act, 1998.
(5)
No closure certificate may be issued unless the Chief Inspector and
each government
department charged with the administration of any
law which relates to any matter affecting the environment have
confirmed in
writing that the provisions pertaining to health and
safety and management pollution to water resources, the pumping and
treatment
of extraneous water and compliance to [sic] the conditions
of the environmental authorisation have been addressed.
(5A) Confirmation from the Chief
Inspector and each government department contemplated in subsection
(5) must be received within
60 days from the date on which the
Minister informs such Chief Inspector or government department, in
writing, to do so.
(6)
When the Minister issues a certificate he or she must return such
portion of the
financial provision contemplated in section 41 the
National Environmental Management Act, 1998
, as the Minister may
deem appropriate, to the holder of the prospecting right, mining
right, retention permit or mining permit,
previous holder of an old
order right or previous owner of works or the person contemplated in
subsection (2), but may retain
any portion of such financial
provision for latent and residual safety, health or environmental
impact which may become known
in the future.
(7)
The holder of a prospecting right, mining right, retention permit,
mining permit,
or previous holder of an old order right or previous
owner of works that has [sic] ceased to exist, or the person
contemplated
in subsection (2), as the case may be, must plan for,
manage and implement such procedures and such requirements on mine
closure
as may be prescribed.
(8)
Procedures and requirements on mine closure as it relates to the
compliance of the
conditions of an environmental authorisation, are
prescribed in terms of the National Environmental Management Act,
1998.
(9)
The Minister, in consultation with the Minister of Environmental
Affairs and Tourism,
may identify areas by notice in the Gazette,
where mines are interconnected or their safety, health, social or
environmental
impacts are integrated which results in a cumulative
impact.
(10)
The Minister may, in consultation with the Minister of Environmental
Affairs and Tourism,
publish by notice in the Gazette, strategies to
facilitate mine closure where mines are interconnected, have an
integrated impact
or pose a cumulative impact.
(11)The
holder of a prospecting right, mining right, retention permit,
mining permit, or previous holder of an old order right
or previous
owner of works that has [sic] ceased to exist, or the person
contemplated in subsection (2), as the case may be,
operating or who
has operated within an area identified in subsection (9), must amend
their programmes, plans or environmental
authorisations accordingly
or submit a closure plan, subject to the approval of the Minister,
which is aligned with the closure
strategies contemplated in
subsection (10).
(12)
In relation to mines with an interconnected or integrated health,
safety, social or environmental
impact, the Minister may, in
consultation with the Minister of Environmental Affairs and Tourism,
determine the apportionment
of liability for mine closure as
prescribed.
(13)
No closure certificate may be issued unless-
(a)
the Council for Geoscience has confirmed in writing that complete
and correct prospecting
reports in terms of section 21 (1) have been
submitted to the Council for Geoscience;
(b)
the complete and correct records, borehole core data or core-log
data that the Council
of Geoscience may deem relevant, have been
lodged with the Council for Geoscience; or
(c)
in the case of the holder a permit or right in terms of this Act,
the complete and correct
surface and the relevant underground
geological plans have been lodged with the Council for Geoscience.
[6]
Regulation 44.
[7]
(2014)
35 ILJ 1024 (LC) at para 29.
[8]
Supra.
[9]
At para 29.
[10]
2010 (7) BCLR 640
(SCA).
[11]
At para 19.
[12]
1995 (2) SA 642
(CC).
[13]
S v Zuma
supra
at 653 A-B.
[14]
1946 AD 298.
[15]
At page 405.
[16]
See Concise Oxford
Dictionary tenth edition Oxford University Press.